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(This started out as a comment addressed to Armando based on his diary here; as you'll see, it became long enough to warrant being a diary on its own.  I still address it to him, but it's for everyone who's interested to read.)

Armando: I think that you're instructively wrong, but at least it helps to clarify the nub of our disagreement.  I invite you, as an exercise, to describe how you would argue the other side of the case, if hired to do so, and see if it still sounds implausible to you.

My concern is that we (both Kosters and liberal legal thinkers) are fooling ourselves on this point.  The only way out of the problem -- both with the Justices and with the American people -- is to articulate a clear limiting principle.  Verrilli didn't; neither do you, because preventative health also impacts the health care market.  But you gave it a good try, which is valuable.

"Regulate inactivity" is rough shorthand for "force people, as a consequences of their mere existence within the U.S. rather than due to their election to enter a market, to thus be subject to commercial regulation."  Any lawyer worth his or her salt, as you certainly are, could muster a robust parade of horribles out of that rule of law.  It should be taken seriously.

Jones & Laughlin is irrelevant because the entity under regulation was not merely "inactively existing," but was active in the marketplace.  Pretty much all acts of a corporation (and I'm hedging only out of caution) are of necessity subject to commercial regulation, because attaining corporate status, hiring people, buying and selling merchandise, and intrinsically commercial activities.

You're talking about an entity engaged in commercial activity, including hiring labor, refusing to act in a certain way with respect to that labor.  I don't think that I need to belabor the point that that is different from the sort of inactivity that derives from an average American simply being born -- and, under your rule, being subject to commercial regulation in the same sense as they are subject to taxation.

Some commenters state that because virtually all Americans will eventually use medical care at some point, they thereby "enter the market" and can be regulated as market participants.  I'll note first that this idea is new.  Whether or not can be argued to flow inexorably from existing law, it is not a simple and straightforward application of an existing power.  It requires us, at a minimum, to overcome the intuition (both on the part of justices and the public) that people are here being dragooned into a market in a way that has not previously been the case -- that it changes the role between citizen and government.  I wish that people would stop claiming that this leap of logic is effortless.

(I note, again, that there is no question but that one is "born into" the ability to be taxed (i.e. subject to Congress's Taxation power) -- but that Taxation power is more limited than that of the Commerce power.  (And let me clarify -- when I talk about the Commerce power here, I mean "as amplified by the Necessary & Proper Clause.")  A tax has to meet certain criteria to qualify as such.  A commercial regulation, especially based on the analysis offered here, does not, so it's a potentially much broader power.)

The fundamental difference between me and Armando is that I accept that this is a matter of Commerce Clause power towards individuals who are not engaged in commerce as the term is traditionally used.  It's the inverse of the Wickard v. Filburn case prohibiting a farmer from growing wheat for his personal use; it's more like asserting that the government has the power, because the farmer is part of a market, to order the farmer to grow wheat if it would serve the interests of the market.  Armando sees it as a straightforward matter of the government's need to regulate commerce.  If you start from where he starts, it makes sense why one ends up there: a loud "WE GOTTA DO IT" does not yield to a quiet "but you don't have the authority to do it under the Constitution."

If one makes Armando's above argument, then, one absolutely does need to address the "slippery slope" arguments rather than just waving them away.  As I've argued recently, the government does in effect already have the right to force you to purchase broccoli through its taxation power; the question is whether it has the right to do so individually rather than as part of an aggregation of all taxpayers.  By extending the commerce power, the government claims the right to regulate you individually.

Could it force you to buy -- not "consume," which runs into the countervailing liberty of maintaining one's bodily integrity, but just "buy" so that you have it personally available as needed or desired -- broccoli, vitamins, or health club memberships?  I'm not at all sure that it couldn't.  And if there is reasonable uncertainty, then you have to stop making fun of people who think that this is a broad new assertion of federal power.

Here's the logic: if you can regulate people by forcing them to enter the paid insurance market, can you also regulate them so that they enter that market in such a way that makes them more likely to reduce costs for other members of the market -- by, for example, maintaining the means to keep themselves healthy?

Most legal interpretation (constitutional, statutory, and otherwise) is an exercise in "line drawing" -- dividing concepts in such a way that the divisions between them make sense.  So I ask you: is there a bright line between that and other forms of commercial regulation?  Or is the brighter line between regulating people who do something affirmative to place themselves into the market and those who don't.

Here's a regulation about which I would be concerned about existing -- because I don't think that the government does have the power to command it -- under the sort of rule that Armando suggests.  We all know that failure to exercise (an inactivity of which I am too frequently guilty) leads to worse health.  Worse health means more expenses for everyone else.  That's bad for everyone in the market (aka "everyone.")

So, given that, why couldn't the government force everyone to purchase health club memberships -- perhaps deeply discounted or free for the indigent -- so that they will be more likely to exercise?  After all, under this rule to exist is now to engage in commerce -- the health insurance market -- so the argument that the government must show some deference to the needs of others in the commercial pool may flow just as easily from the Commerce clause.  (Indeed, that federal regulation can force an entity in a market to be a "good market participant" by bargaining in good faith with labor is a possible rule to derive from Jones & Laughlin.)

Do I need to underline the point made by libertarian conservatives -- who are often crazy but not necessarily crazy here -- that such a prospect fundamentally alters the relationship between citizen and government?

Let's go even further.  Can I force you to buy health insurance but then charge you a higher rate or deductible, if you use that insurance, if it becomes clear that you have not been exercising, have not been taking your vitamins or eating broccoli, etc.?  (Can your blood serum levels be used as evidence against you?)  Why not?  You're a market participant (having been born and all), aren't you?  This is a regulation of your involvement in commerce, isn't it?  What bright line stops the government from doing this?  And, if there isn't one, doesn't this fundamentally alter the relationship between citizens and government?

Worrying about the derivation of federal powers is one of the few areas where conservatives actually do a more conscientious job than liberals, who often just presume that there must be some justification for an exercise of federal power in there somewhere, so let's not sweat the details.  After all, we liberals didn't have to do it between 1937 and the Lopez decision that signaled the rolling back of unlimited Commerce Clause power, and I'd personally be happy if the state of the law had remained there.  But it hasn't.  We have to face and accommodate that reality.

(Or -- maybe some of us think that we don't!  I get the sense sometimes that the liberal legal elites care more about reclaiming the de facto unlimited regulatory authority that we had before Lopez than providing health care, in which case let me just say that I disagree with their priorities and that if that's the game, it would have been a lot smarter to wait until we had one more Democrat on the Supreme Court.)

I think that there's a legitimate argument to be had about the earlier part of Armando's post (and mine) regarding whether the Commerce Clause could, in principle, apply to inactivity.  I think that there's NO legitimate argument that the line-drawing problem -- the need to figure out how to constrain the federal power to force people into markets and them regulating them because there in a market -- can be dismissed, ridiculed, or ignored.  It's bad legal analysis, but it's horrible politics.  It plays into every "nanny state"-related fear that conservatives try to sell the public about liberals.

While I sometimes enjoy being a contrarian, I'm not enjoying it this time.  My life would be much easier and happier if I agreed with Armando that the other side is simply stupid, unreasonable, and vile.  But I think that we're making a huge mistake here, and that we really need to think of ways to limit the damage.

I don't want to see PPACA overturned; I want Justice Kennedy to ignore the government's arguments and find its authorization in the Taxation power.  If it is overturned at all, I want as little of it to be overturned as possible.  But we impede our ability to achieve those ends -- in the court of public opinion, at least, if not in the hallowed chambers of the Supreme Court -- by sitting in an echo chamber and convincing each other that there's really no problem at all.

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Comment Preferences

  •  I am unhappy about reaching this conclusion (29+ / 0-)

    but I think that we're fooling ourselves by making fun of the broccoli argument (or, in stronger terms, the "health club membership" argument.)  It's a poor position to take legally and a horrible one to take politically.

    I am not sure what we can do at this point to salvage things, but we can't do much if we don't even recognize the problem.  And SCOTUS's striking down PPACA won't help us in November, it will hurt us badly as attempted "nanny state" imposers.

    Democrats must
    Earn the trust
    Of the 99% --
    That's our intent!

    "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

    by Seneca Doane on Wed Apr 04, 2012 at 12:26:29 PM PDT

  •  As I said in Armando's diary (11+ / 0-)

    ask an actuary if you are "in" the healthcare market. Your existence puts you there, you are part of the calculation. Your being alive means you MIGHT get sick, so actuaries whose figures govern health care commerce include you in their calculations. Because you were born, you affect the actuarial tables that govern the pricing of my health care. You are in the market at birth.

    Let's go back to E Pluribus Unum

    by hazzcon on Wed Apr 04, 2012 at 12:34:52 PM PDT

    •  I can more easily accept that part of the argument (4+ / 0-)
      Recommended by:
      Clem Yeobright, BachFan, wsexson, G2geek

      than I can the part that contends "but there's no slippery slope!"  If that's true, why can't the government make you buy -- not eat, due to privacy issues dealing with bodily integrity, but buy -- broccoli?  Why can't it make you purchase a health club membership?  Why can't it penalize you, in terms of available benefits, or deductibles, or co-pays, if it can be shown that you failed to exercise as much as the reasonable person would exercise despite lacking a legitimate excuse?

      These policies do, absolutely, change the nature of the relationship between citizen and government.  That fact could easily lead the Supreme Court to say that the bright line regarding the Commerce Clause should not be between the government being able to force you (as a market participant) to buy health insurance and being able to force you (as a market participant) to make purchases or undertake preventative health care activities, but instead to say that the more easily honored bright line is between regulating people who take an affirmative action to enter a market and those who do not.

      What would the actuaries say about the benefits of making people exercise and eat right?  That's why actuaries aren't judges.  The considerations are different.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 12:57:47 PM PDT

      [ Parent ]

      •  This is really easy to deal with: (1+ / 0-)
        Recommended by:
        jessical

        Limiting principle:  such an exercise of power is constiutional only where the absence of such a mandate would have a major/substantial effect on interstate commerce and where the absence of a mandate creates significant problems that the legislation is trying to address.

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Wed Apr 04, 2012 at 01:14:14 PM PDT

        [ Parent ]

        •  So: mandatory health club memberships! (1+ / 0-)
          Recommended by:
          Clem Yeobright

          The legislation is addressing lowering health care costs.  Using monetary inducements to get people to exercise would help!

          So long as you agree that that is on the "OK" side of the line, we agree -- but I don't think that you'll want to agree with that.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 01:24:00 PM PDT

          [ Parent ]

          •  Asinine example. (1+ / 0-)
            Recommended by:
            jessical

            The market for gym memberships is nothing like the market for health insurance.

            Congress is not seeking to provide universal access to exercise facilities.

            It does not cost gyms extra money to admit as members people who are out of shape or injured or sick.

            Gyms excluding people on the basis of pre-existing conditions is not a societal problem.

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Wed Apr 04, 2012 at 01:30:27 PM PDT

            [ Parent ]

            •  Stop the bullshit right there (8+ / 0-)

              Anytime you start off by using words like "asinine," people should understand that you don't have a real argument.

              It doesn't necessarily matter that "the market for gym memberships is nothing like the market for health insurance."  We're talking about sources of constitutional power.  If your bright line is "well, all of the old standards still apply, except that health insurance is OK, that's a lousy legal argument.

              The federal government wants a mandate to keep the cost of insurance affordable.  You're saying that it can direct people to make purchases -- to enter markets -- because if they don't do so, insurance won't be affordable (even though it's not actually "necessary"; it's only necessary if you don't have a robust public option or single payer.)

              Well, if the principle is that you can force someone into a market where they'd otherwise free-ride in order to save everyone money, then you're not taking the slippery slope argument nearly seriously enough.  That there are differences in markets don't matter.  There are huge differences in the markets between bus transportation and pornography and cashews -- I trust that you don't need examples -- but that doesn't mean that the same overriding constitutional principles don't apply to each.

              People who don't exercise cost other people more money if everyone's in the insurance pool.  Why, then, isn't government using financial pressure to make exercise available and desirable constitutional under your reading of the Commerce Clause?  It's not going to be because it doesn't involve buses, naked people, tasty snacks, or insurance forms.  It's going to be, or not be, because of a constitutional principle.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 02:03:09 PM PDT

              [ Parent ]

              •  You are not arguing Commerce Clause. (0+ / 0-)

                You are arguing substantive due process--that the government can't force someone to do something.

                The government indisputably has the power to regulate the health care and health insurance markets, including what is 'necessary and proper" to make those regulations work.

                Making someone join a gym in no way is necessary and proper to making sure that there is universal health care coverage.

                You are essentially towing Scalia's Lochner line.

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Wed Apr 04, 2012 at 02:13:11 PM PDT

                [ Parent ]

                •  Absolutely wrong (3+ / 0-)
                  Recommended by:
                  Clem Yeobright, dRefractor, wsexson

                  Of course the government can force someone to do something.  It can do so through taxation.  It can do so through the military draft.  It can do so through eminent domain.  That's not the issue.

                  Within the Commerce Clause, the question is when the government can force and entity to do something.  It can do so, contra Lochner, if that entity is engaged in commerce.  The Lochner Court disagreed, but you and I agree.

                  You want to say that a person can be regulated if that person affects commerce, even if by simply existing.  Well, that's a cognizable argument.  But the idea that such regulation must be limited to force them to enter an insurance market, rather than to lower the costs of that market, is VERY UNCLEAR.

                  If that's to be your limiting principle, you have to work a hell of a lot harder to justify it.  Right now, it's just your assertion.  Would forcing people to buy health club memberships not be "regulation of commerce"?  Not "necessary"?  Not "proper"?  Come up with a frackin' (hi, Armando, when you read this) argument!

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Wed Apr 04, 2012 at 02:32:37 PM PDT

                  [ Parent ]

                  •  What is your understanding of the (0+ / 0-)

                    adverse selection death spiral problem?

                    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                    by Geekesque on Wed Apr 04, 2012 at 02:47:10 PM PDT

                    [ Parent ]

                    •  My understanding is that it does not, under (3+ / 0-)
                      Recommended by:
                      Clem Yeobright, wsexson, G2geek

                      the current understanding of the Commerce + N&P Clauses, justify this law, and that if it does, it would justify many others.

                      For the record: healthy people don't get insurance because of the premiums, unhealthy people use disproportionate amounts, premiums go up, more healthy people go uninsured, rinse and repeat.

                      It certainly is a problem.  That doesn't mean that, under the current understanding of the Commerce & N&P clauses, Congress has the power to address it in this fashion.  (There are, after all, alternatives.)  And it certainly doesn't mean that, once you have established a new exception to the Commerce Clause power, it couldn't be applied elsewhere.

                      However, what strikes me most in reading your comment is that because this would be something new, all the blather about how the SCOTUS would be ignoring 75 years of precedent!! is flat-out wrong.  The notion that the adverse selection problem requires people to engage in personal contracts with private companies under the Commerce + N&P Clauses is just not part of Commerce Clause jurisprudence.  (Now the Taxation Clause is different.)

                      All of your examples of case law are analogies (and mostly inapposite.)  What this really undercuts is the political argument that if the Supreme Court goes the other way the public will see it as "OMG judicial activism!"  If they stay away from the stupid "the gummint can make you eat broccoli" argument and stick with "the gummint can make you buy broccoli" argument, the SCOTUS comes through this fine.

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                      by Seneca Doane on Wed Apr 04, 2012 at 03:18:30 PM PDT

                      [ Parent ]

                      •  Again with the circularity. (0+ / 0-)

                        You're treating the fact that Congress lacks the authority to enact such mandates as an absolute given.

                        It has not entered your imagination that Congress does have the authority to do so under certain very limited conditions, such as where that mechanism is essential to achieving the policy goal.

                        You're substituting the Lochner substantive due process bar as a limit on Commerce Clause authority.

                        They are separate issues.

                        The inquiry:

                        Does Congress's policy agenda (universal coverage) fall within its Commerce Clause power?

                        If so, then it has the power to do what is necessary and proper to achieve that goal.  The limiting principle here is whether the mandate is really essential to achieving that policy goal, here providing universal health coverage.

                        Moreover, it is not for the Court to tell Congress that it only has one possible way of achieving a goal.

                        Think about it.  If Congress tried to nationalize the health care industry, it could be said that this exceeded the necessary and proper clause's authority.  

                        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                        by Geekesque on Wed Apr 04, 2012 at 03:38:37 PM PDT

                        [ Parent ]

                        •  Yes the health care system can be nationalized (5+ / 0-)

                          constitutionally. In fact nationalizing the health care system is far easier to defend in terms of the constitution than the mandate is. You raise the money through an income tax, which is constitutional, and then spend it through a national health insurance system such as an expanded medicare. Everyone admits single payer is constitutional. It just isn't popular among conservatives.

                          •  If the govt can mandate people buy (0+ / 0-)

                            health insurance from itself (a single payer system) to achieve it's goal why can it not mandate you buy it from a bunch of different sources both private and public, non-profit or for profit as in the ACA bill, to achieve the same goal?

                            Right man, right job and right time

                            by Ianb007 on Wed Apr 04, 2012 at 09:36:51 PM PDT

                            [ Parent ]

                          •  Because of how the Constitution works. (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            The Constitution limits the powers of the federal government to the ennumerated powers. Healthcare is not an ennumerated power, so it has to be dealt with under one of the existing powers. Before the ACA this was done through the Taxation clause, which gives Congress the right to levy taxes. It is indisputable that Congress has that power, and the power to determine how those taxes are used.

                            The ACA is using an argument based on the Commerce Clause. Before now, one must be in a market for Congress to regulate it. Most cite a case where someone was prevented from growing wheat for personal use because it would effect the wheat market. However, that was to STOP someone from doing something.

                            The Supreme Court asked for a limiting principle, one that would prevent the Commerce Clause from being OVERUSED by Congress to step around its limitations from the 10th amendment.

                          •  Healthcare is interstate commerce (0+ / 0-)

                            that everyone on the supreme court believes that the federal govt has the constitutional authority to regulate.  So that question is already settled and not before congress.

                            The argument that the pro mandate lawyers made and I agree with is everyone is in the health care market whether they take action or not.  One day you are  a healthy 28 year old with a gym membership and eating broccoli twice a week,  next day you are in ICU with a congenital heart defect, running up a two hundred thousand dollar tab.  No one wants to be in the healthcare market but we all are.  It is the only market where you have very little to no control over when and how you consume it.  It is not a POS type market.  I am sure they ca find some type of limiting principle in there if they want to.

                            Right man, right job and right time

                            by Ianb007 on Wed Apr 04, 2012 at 10:55:55 PM PDT

                            [ Parent ]

                          •  Not really. What makes health insurance so special (1+ / 0-)
                            Recommended by:
                            rmabelis

                            that Congress can make you purchase it or penalize you for it?

                            You may be in the healthcare market, but you are not in the health insurance market, which is what this law requires. They are two different things. Why does the federal government get to require you to have health insurance or penalize you if you don't?

                          •  Health insurance and health care (0+ / 0-)

                            maybe two separate things but the are inseparable for 99.9% of Americans.  Health care is not a Point of sale market.  Almost everyone gets their health care from some insurance pool either private or public.

                            What makes health insurance so special is that everyone has a physical body that needs healthcare sooner or later.  Healthcare is also the only service that the govt forces private providers to provide regardless of the recipients ability to pay.

                            Right man, right job and right time

                            by Ianb007 on Wed Apr 04, 2012 at 11:38:22 PM PDT

                            [ Parent ]

                          •  The 16th Amendment (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            gives the Federal government the right to levy a tax on incomes. Once the tax is collected the money raised can be spent on whatever the Congress directs. So Congress setting  up a health care system run by the government itself is perfectly constitutional. But forcing people to spend their own money to purchase insurance from third parties is constitutionally questionable.(see Chuckgintn's comment for an explanation why)

                          •  oh darn, you've gone and done it. (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            These conservative corporate Democrats who are cheering for the health insurance corporations, are terrified of the Public Option and even more terrified of Single Payer.

                            And now you had to mention nationalizing the health care industry.  I'll bet you've scared a bunch of Blue Dogs around here half to death.  Can I help with that? :-)

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 10:21:07 PM PDT

                            [ Parent ]

                        •  I'm treating this as a case of first impression (2+ / 0-)
                          Recommended by:
                          Clem Yeobright, G2geek

                          as regards dragooning people into active market participation.  I'm not saying it can't be done.  I'm saying that there's no basis for concluding that the Justices would be flouting 75 years of Contracts Clause jurisprudence by striking it down; that examining slippery slope problems would be appropriate in making the determination whether this makes logical sense as part of the Commerce Clause power; and that, without a very strong limiting principle, those slippery slope problems are serious ones.

                          Democrats must
                          Earn the trust
                          Of the 99% --
                          That's our intent!

                          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                          by Seneca Doane on Wed Apr 04, 2012 at 06:06:51 PM PDT

                          [ Parent ]

                  •  the problem is that if you... (1+ / 0-)
                    Recommended by:
                    Seneca Doane

                    ... set precedent based on affirming the idea that "merely existing" affects commerce, that is exactly what puts us on the slippery slope, with Vaseline under our butts to make the trip even faster.  

                    For example Alice & Bob were girlfriend & boyfriend, and they break up, and Bob calls his friend Carlos for emotional support.  Uh-oh, he's affecting commerce because he didn't hire a therapist.  

                    Any activity that reduces the sum total of commerce also becomes subject to regulation.  For example open source software that is given away freely,  undercuts the market for commercial software.  Which is exactly why Microsoft argued that it should be banned under law.  

                    (Disclosure: I am not an OS partisan, I use MacOS, Windows7, and open source operating systems & software.)

                    Not only that, but most forms of volunteer and hobbyist activities, and DIY and DIT (Do It Yourself and Do It Together) are replacements for commercial transactions and could therefore be regulated or at least penalized with "taxes."   There's another slippery slope complete with a tube of lube to grease the skids to hell.  

                    "Commerce" becomes in effect a substitute for "religion" as the excuse for tyranny.

                    "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                    by G2geek on Wed Apr 04, 2012 at 10:17:45 PM PDT

                    [ Parent ]

                •  we're arguing that the commerce clause has limits. (1+ / 0-)
                  Recommended by:
                  Seneca Doane

                  And one of those limits is that humans are not born into markets.  

                  Humans used to be born into markets.  They were called slaves.

                  "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                  by G2geek on Wed Apr 04, 2012 at 10:01:18 PM PDT

                  [ Parent ]

              •  thank you. (1+ / 0-)
                Recommended by:
                Seneca Doane

                I have a long-running arguement with Geekesque about this stuff, good to see you getting a first-hand look at the way he argues it.  

                "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                by G2geek on Wed Apr 04, 2012 at 09:59:40 PM PDT

                [ Parent ]

            •  weak arguement. (1+ / 0-)
              Recommended by:
              Seneca Doane

              "Market X is nothing like market Y" is irrelevant.  It's like you're arguing that "fondling" isn't "molestation" because it doesn't involve "penetration."

              The issue is forcible participation in markets of whatever kind, against one's will.

              "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

              by G2geek on Wed Apr 04, 2012 at 09:58:24 PM PDT

              [ Parent ]

        •  Just like pornography: I know it when I see it. (3+ / 0-)
          Recommended by:
          Seneca Doane, wsexson, G2geek

          Where do you see mandatory health club membership fitting into your principle?

          Major/substantial? Significant?

          Can a provision satisfy your condition 1 but not 2, or vice versa?

          Would you want to argue a case under this principle?

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 01:25:57 PM PDT

          [ Parent ]

          •  Are there pre-existing condition exclusions (0+ / 0-)

            such that people are unable to join a gym?

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Wed Apr 04, 2012 at 01:31:45 PM PDT

            [ Parent ]

            •  This thread begins with 'Ask an actuary' (3+ / 0-)
              Recommended by:
              Seneca Doane, wsexson, G2geek

              Are you saying that more exercise by the public at large will not affect the total cost of health care 'in the market'?

              There have been numerous arguments by Kossacks about being offended to be mandated to join a health insurance pool which includes people who flaunt unhealthy life-styles. Are they wrong?

              Am I right, or am I right? - The Singing Detective

              by Clem Yeobright on Wed Apr 04, 2012 at 01:35:37 PM PDT

              [ Parent ]

              •  People being offended is not of any (0+ / 0-)

                constitutional significance.

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Wed Apr 04, 2012 at 01:46:04 PM PDT

                [ Parent ]

                •  Have they a case for a mandate for healthy living? (2+ / 0-)
                  Recommended by:
                  Seneca Doane, G2geek

                  Would it pass constitutional muster under your principle?

                  You are arguing that a mandate for health club mandate is constitutionally unacceptable but you have so far avoided addressing how the limiting principle you have proposed supports that argument.

                  I would have thought that was clear.

                  Am I right, or am I right? - The Singing Detective

                  by Clem Yeobright on Wed Apr 04, 2012 at 01:52:31 PM PDT

                  [ Parent ]

                  •  What is clear is that you do not understand (0+ / 0-)

                    how the health insurance and health care markets operate.

                    Congress is regulating the health insurance subdivision of the health care market by requiring that insurance companies cover anyone, regardless of pre-existing conditions.

                    In order for that regulation to work, they also need to provide an incentive for people to sign up for health insurance before they get sick.  Otherwise the entire system collapses.

                    That is what people mean when they say that the failure to purchase health insurance under this system would have a substantial effect on interstate commerce.

                    This is completely different than the stupid broccoli logic you are citing.

                    Essentially, you and the diarist are siding with Scalia when he told the government "don't obligate yourself" to seeking universal coverage.

                    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                    by Geekesque on Wed Apr 04, 2012 at 02:01:40 PM PDT

                    [ Parent ]

                    •  So you're saying in essence that (3+ / 0-)
                      Recommended by:
                      Clem Yeobright, wsexson, G2geek

                      "we GOTTA do it this way!"  (We don't -- we could have single-payer or a tax-funded public option -- but let's assume for now that we did.)

                      "We GOTTA do it this way!" is not a constitutional argument.  If the federal government has gotta do it, but doesn't have the authority to do it, then it doesn't matter whether we gotta.

                      Cheney said that we GOTTA imprison people indefinitely without charge too -- but the federal government does not have the power.  The slippery slope argument was important there too.

                      You'll have to give more context for Scalia's quote.  The saddest thing about the failure of proponents to articulate a legitimate limiting principle is that it's going to make Scalia look reasonable.  (As I've said elsewhere here, he's not reasonable when it comes to the "make them eat" broccoli notion.)

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                      by Seneca Doane on Wed Apr 04, 2012 at 02:08:30 PM PDT

                      [ Parent ]

                      •  You need to read up on "necessary and proper" (0+ / 0-)

                        Congress's power to regulate includes the power to do what is necessary to regulate.

                        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                        by Geekesque on Wed Apr 04, 2012 at 02:16:48 PM PDT

                        [ Parent ]

                        •  Stop being patronizing (5+ / 0-)

                          It's not necessary to regulate through the Commerce Clause because there are other ways of doing this, e.g. through Taxation power.

                          And there are limits on the N&P Clause too, which is why Scalia is wrong when he says that the government can force you to EAT (rather than just buy) broccoli.

                          The N&P Clause does not allow Congress to do that which is prohibited.  And, again, your reading simply amplifies the slippery slope problem.  Why isn't mandatory exercise "necessary" to "regulate commerce" by lowering premiums and thus making more services available to people?

                          Democrats must
                          Earn the trust
                          Of the 99% --
                          That's our intent!

                          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                          by Seneca Doane on Wed Apr 04, 2012 at 02:36:07 PM PDT

                          [ Parent ]

                          •  Because the regulatory scheme works without it. (0+ / 0-)

                            It's not necessary.

                            It doesn't work without the mandate.

                            And this is where you've proven to be out of your depth, unfortunately:

                            It's not necessary to regulate through the Commerce Clause because there are other ways of doing this, e.g. through Taxation power.
                            This is a horrendous misreading of the N&P clause.  What the N&P clause states is that where Congress has the power to do something, it has the power to do what is necessary to do that.

                            Your reading of the N&P clause is that Congress can only do something under the Commerce Clause if it can't do so under another section of the Constitution.

                            That's nonsense and would drop you a letter grade in Con Law.

                            If Congress has the power under the Commerce Clause, it has the power under the Commerce Clause regardless of whether there are other bases for its actions.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 02:41:29 PM PDT

                            [ Parent ]

                          •  If it's unconstitutional under the Commerce Clause (2+ / 0-)
                            Recommended by:
                            Clem Yeobright, G2geek

                            and it's constitutional under the Taxation clause, and if Justice Kennedy can figure out a way to get there, then constitutional avoidance should lead him there, period.  I'd like my letter grade back, please.

                            The N&P clause allows you to do what is permissible.  It does not allow you to do what is impermissible.  Your hypo does not work if Congress lacks power under the Commerce Clause.

                            Democrats must
                            Earn the trust
                            Of the 99% --
                            That's our intent!

                            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                            by Seneca Doane on Wed Apr 04, 2012 at 03:21:53 PM PDT

                            [ Parent ]

                          •  That's circular. (0+ / 0-)

                            "It's permissible only if it's necessary and proper, and it's necessary and proper only if it's permissible."

                            Congress does not lack power to regulate the health insurance and health care markets.  In order to carry out its policy goals, it can do what is necessary to achieve those goals.  

                            It is very simple, actually:

                            1)  Does Congress have the right to pursue a policy-making goal?

                            2)  If yes, is the contemplated action necessary and proper in order to achieve that goal?

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:25:26 PM PDT

                            [ Parent ]

                          •  Yeah, real simple (2+ / 0-)
                            Recommended by:
                            Clem Yeobright, G2geek

                            I've already addressed "necessary."  How about that word "proper"?  Do we agree that that means that Congress cannot do something prohibited?

                            When one includes your valiant attempts to avoid any slippery slope implications, your argument ends up resting on very fine distinctions.  If I may paraphrase: "it's not about availability of health insurance plus cost savings," it's about "maintaining the integrity of the market system threatened by the adverse selection death spiral."  Legally, I think it could easily be a loser without the "75 years of precedent!!" arguments having much bite.  Politically, it seems like a very likely loser.  I hope that Kennedy can avoid the constitutional question by figuring out a way to just anchor it in the Taxing power where it belongs.

                            I have to go back to work, alas.  Thanks for the instructive argument

                            Democrats must
                            Earn the trust
                            Of the 99% --
                            That's our intent!

                            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                            by Seneca Doane on Wed Apr 04, 2012 at 03:39:45 PM PDT

                            [ Parent ]

                          •  Again, this is where it collapses into circularity (0+ / 0-)

                            "Proper" can mean "not otherwise prohibitied."

                            Such as seizing property without compensation, or imprisoning people without a trial, or torture.

                            What "proper" does not mean is that "something the government is allowed to do anyways under the Commerce Clause."

                             

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:49:07 PM PDT

                            [ Parent ]

                          •  Where we disagree is that I say we don't yet know (3+ / 0-)
                            Recommended by:
                            Clem Yeobright, wsexson, G2geek

                            whether it is proper by your definitions.  Is it prohibited?  Can the federal government do it under the Commerce Clause?  Dragooning people into active commerce for the purpose of then regulating -- even if for a really good reasons -- has not been done before.

                            The one thing I'm most confident about here is that an adverse decision would not necessarily be seen as politicized.  I also think that their argument is more easily understood than ours.

                            Democrats must
                            Earn the trust
                            Of the 99% --
                            That's our intent!

                            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                            by Seneca Doane on Wed Apr 04, 2012 at 06:09:49 PM PDT

                            [ Parent ]

                          •  Yo Geekesque: formal apology posted. (1+ / 0-)
                            Recommended by:
                            Geekesque

                            Seneca clued me in that you're a ferocious Obama supporter.

                            So am I.

                            So much for my hypothesis that you're a conserva-Dem.  

                            In view of the fact that we've been tangling over this stuff a lot recently, I felt bound to post the apology in a more public place so I made a diary of it.

                            Peace.

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Thu Apr 05, 2012 at 02:10:49 AM PDT

                            [ Parent ]

                          •  repeating it twice doesn't make it so. n/t (0+ / 0-)

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 10:28:13 PM PDT

                            [ Parent ]

                          •  Congress has power to go to war. (0+ / 0-)

                            Congress therefore has the power to legalize torture of persons captured under declarations of war.

                            And "cruel and unusual punishment" does not apply if the torture is not "punishment" but "interrogation" used on prisoners of war, however they are defined.

                            Are you so sure you want to go there?

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 10:27:15 PM PDT

                            [ Parent ]

                    •  I intended to 'side with' the Constitution. (2+ / 0-)
                      Recommended by:
                      Seneca Doane, G2geek

                      Actually, I do understand the issue and I'm not sure why you have left out the third essential leg: community rating. After all, given the individual mandate and guaranteed issue, the system also falls apart if health insurance companies are allowed to slice and dice the 'pool' so that each individual's premium approximates the true risk that individual actuarially presents.

                      This is getting to be like one of those kid's word-avoidance games, with you challenging the diarist and others

                      "Bet you can't make me say Commerce Clause!"
                      I'll bet you'd be a lot happier in that other diary discussing 'framing', don't you think?

                      Am I right, or am I right? - The Singing Detective

                      by Clem Yeobright on Wed Apr 04, 2012 at 02:10:57 PM PDT

                      [ Parent ]

                      •  Yes, and community rating goes away too (0+ / 0-)

                        if the mandate does.  Gotta have all three, or they all go away.

                        For those such as yourself and Justice Scalia who think that the necessary and proper clause is a dead letter, I guess this is immaterial.

                        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                        by Geekesque on Wed Apr 04, 2012 at 02:15:51 PM PDT

                        [ Parent ]

                        •  Let's see if I have this (2+ / 0-)
                          Recommended by:
                          Seneca Doane, G2geek

                          (a) You chide me for not understanding that there are two specific legs to the ACA, (b) I point out that there are in fact three legs, (c) you agree that there are three legs, then (d) you divert to chide me for not acknowledging N&P, while (e) you once more decline to say the words 'Commerce Clause'.

                          Why should I take you seriously?

                          Am I right, or am I right? - The Singing Detective

                          by Clem Yeobright on Wed Apr 04, 2012 at 02:32:24 PM PDT

                          [ Parent ]

                          •  To begin with, I didn't say that there (0+ / 0-)

                            were only two legs, and the fact that you claim that gym memberships is equally important to holding together the ACA's scheme as the mandate/penalty indicate that you don't understand the issue that well.

                            I still haven't seen you state why Congress doesn't have the power to pursue the regulatory aims under the Commerce Clause, or why the free rider issue couldn't serve as a limiting principle.

                            The fact that you think that gym memberships and broccoli are as important to the regulatory scheme as the mandate speaks plenty.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 02:36:40 PM PDT

                            [ Parent ]

                          •  Hey, those people like me (3+ / 0-)
                            Recommended by:
                            Clem Yeobright, wsexson, G2geek

                            who don't get enough exercise and as a result will impose the increased costs of our health care on others can easily be described as "free riders."  You still don't see a slippery slope?

                            Democrats must
                            Earn the trust
                            Of the 99% --
                            That's our intent!

                            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                            by Seneca Doane on Wed Apr 04, 2012 at 02:39:38 PM PDT

                            [ Parent ]

                          •  No. You are still paying your insurance (0+ / 0-)

                            premiums.   Ergo, not a free rider.  Also irrelevant to the adverse selection death spiral.

                            Certainly, gym memberships are not essential to making the scheme work, unlike the mandate.

                            If you do not understand this, you do not understand the issue.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 02:44:26 PM PDT

                            [ Parent ]

                          •  This is not one of the religious belief diaries (2+ / 0-)
                            Recommended by:
                            Seneca Doane, G2geek

                            You keep coming back to "If you don't feel in your bones what I feel in my bones ..."

                            Let me state clearly. then: I respect that you believe what you believe, I just find your defense of it unconvincing and I find your constant reference to your deeper theology - even when you misstate it and I have to correct you - to be ... amusing.

                            Am I right, or am I right? - The Singing Detective

                            by Clem Yeobright on Wed Apr 04, 2012 at 02:49:30 PM PDT

                            [ Parent ]

                          •  You're ignoring the central issue as (0+ / 0-)

                            to why the mandate is essential.

                            The adverse selection death spiral.

                            The mandate is CLEARLY relevant to that while gym memberships are CLEARLY not relevant to that.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 02:51:13 PM PDT

                            [ Parent ]

                          •  fail, utterly. (0+ / 0-)

                            The adverse selection death spiral is not a fact of nature, it's a creation of a private insurance system.

                            And the solution to the adverse selection death spiral, that does not have constitutional issues, is a universal single-payer system such as Medicare for all.  

                            In other words, you're arguing for a Rube Goldberg contraption where a simple machine will do.  

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 10:50:33 PM PDT

                            [ Parent ]

                          •  Free riders (4+ / 0-)

                            are a poor option for a limiting principle because there are other market options used by those who choose not to participate in the Health Insurance Market, but still participate within the Health Care Market. If ALL health care practices operated under the health insurance acceptance system the argument for free riders would be much stronger and might be acceptable for a limiting principle. There are other market options available. The insurance industry being the largest ≠ it being the only option.

                          •  To make it clear: the free rider problem here (0+ / 0-)

                            is that it would destroy the entire regulatory scheme via the adverse selection death spiral.

                            That makes the mandate here a different category of concern than broccoli eating.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:07:51 PM PDT

                            [ Parent ]

                          •  What Obligation (5+ / 0-)

                            does the SC have to be sure that law within the Commerce Clause props up a particular industry over another? That is policy and not law. Is that not one of the problems with the free rider limiting principle? If there were no other market options, free riders as an option for limiting principle could work as an argument for the preservation of commerce, but there are other market options and those other market options would grow and take up a larger share of the market in the event that "free riders" cause an opposing market to shrink. The fact that health practices that do not accept insurance can still operate despite potential free riders within the market invalidates that insurance or acceptance there of is necessary for the Health Care Market to exist.

                          •  The Supreme Court's obligation is to make (0+ / 0-)

                            sure that Congress is pursuing a permissible policy goal, and if so that what Congress is proposing is necessary and proper to carrying out that goal.

                            Congress's goal is to improve the current system such that it provides universal coverage while reducing costs.

                            Unless the Supreme Court says that's off the table, it has to allow the mandate.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:27:57 PM PDT

                            [ Parent ]

                          •  Universal Coverage (3+ / 0-)
                            Recommended by:
                            Clem Yeobright, wsexson, G2geek

                            The Mandate does not provide universal coverage thus not fulfilling the policy goal set out by congress. If those without insurance were automatically enrolled and billed like SS in to a health care plan then the argument would have some weight. They are instead financially punished for not participating and still go without coverage.

                          •  It's an instrument towards greatly (0+ / 0-)

                            expanding coverage.  

                            It's central to any scheme that doesn't involve imposition of Single Payer, which would also face challenges under the Commerce Clause.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:45:09 PM PDT

                            [ Parent ]

                          •  Again, (2+ / 0-)
                            Recommended by:
                            Clem Yeobright, G2geek

                            You still have haven't explained how free riders are an argument for limiting principle. The mandate promotes one market over another under the false pretense of necessary policy under the commerce clause to expand coverage for one type of market over another.

                            A public option would not face a challenge under the commerce clause if it was instituted as a tax in a scheme similar to Medicare and SS. Those are both proven to be legal and allow other options on the market for those who do not wish to utilize them. The use of the commerce clause is completely unnecessary for the implementation of a public option.

                          •  exactly right. (1+ / 0-)
                            Recommended by:
                            fuzzyguy

                            What you just said, is what a lot of us around here have also been saying:

                            "A public option would not face a challenge under the commerce clause if it was instituted as a tax in a scheme similar to Medicare and SS. Those are both proven to be legal and allow other options on the market for those who do not wish to utilize them. "

                            Which is why it makes it particularly weird and creepy to see all these people parroting the line that the mandate is essential.  It's not.  It's only "essential" for propping up a moribund industry, and giving every other special interest a ticket to line up at the doors of Congress with their own "unique" situations.

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 11:36:08 PM PDT

                            [ Parent ]

                          •  "IMPOSE" single payer, eh? (1+ / 0-)
                            Recommended by:
                            fuzzyguy

                            Quoth Geekesque,

                            "It's central to any scheme that doesn't involve imposition of Single Payer, which would also face challenges under the Commerce Clause."

                            So, Single Payer is an imposition eh?

                            Who, exactly, does it impose upon?

                            And why, exactly, is imposing upon that particular "who", more onerous and intrusive than imposing upon 100% of citizens to pay private insurance companies?

                            The idea that Single Payer "imposes" is a Republican meme.

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 11:33:00 PM PDT

                            [ Parent ]

                          •  excellent point. (0+ / 0-)

                            Compulsory corporate insurance does not fulfill the policy goal because it still leaves a large number of people without insurance and without regular access to medical care.

                            Yes, the public option would solve all of this in a flat second.

                            What the apologists for the corporate insurance industry are doing is building a Rube Goldberg contraption of tenuous arguements in order to avoid building the simple machine of the public option.  To quote Led Zeppelin, "ooooh, it makes me wonder..."

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 11:26:52 PM PDT

                            [ Parent ]

                          •  oooh, that's conclusive: (0+ / 0-)

                            What you said:  

                            "The fact that health practices that do not accept insurance can still operate despite potential free riders within the market invalidates that insurance or acceptance there of is necessary for the Health Care Market to exist."

                            Exactly.  And that drives the proverbial stake through the heart of the vampires.  

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 11:20:12 PM PDT

                            [ Parent ]

                          •  Broccoli *purchasing*, right? (2+ / 0-)
                            Recommended by:
                            Clem Yeobright, G2geek

                            Geek, the fact that it took a smart guy like you from 1:08 PT, when you wrote this:

                            It's the Court's job to come up with the (0+ / 0-)
                            limiting principle.  And they're emminently capable of doing so, if they're motivated.   They've been doing that with commerce clause cases for well over a century.

                            The problem is that they have no interest in doing so.  They are going straight from "government seeks power" to "ohmigod LIBERTY!!!"

                            until 2:29 to even mention the phrase "adverse selection" is a great example of what an absolutely terrible job the Administration has done of making these issues clear to the public and why the Supreme Court will not suffer for striking down at least the mandate and as much else as Kennedy wants.

                            "Congress can legislate through Commerce + N&P when the absence of forcing individuals to enter the stream of commerce could destroy the entire regulatory scheme" -- while an arguable matter of expert opinion (see, e.g., Howard Dean on Vermont's mandateless system) is a possible limiting principle.

                            Can we agree that this idea would be something new, in that it does not exist in Supreme Court Commerce Clause jurisprudence?  What does that do to your political forecast?

                            Democrats must
                            Earn the trust
                            Of the 99% --
                            That's our intent!

                            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                            by Seneca Doane on Wed Apr 04, 2012 at 03:30:27 PM PDT

                            [ Parent ]

                          •  The Court produces new standards (0+ / 0-)

                            and principles dozens of times per year.

                            Not sure why it defies expectation that they're not supposed to come up with one on their own in this case.  The line they have to draw in N&P cases is the tension between proper deference to the policy-making branches expertise and being a doormat.

                            Let's flip this a little bit, though:

                            If Congress tried to enact Single Payer, mandatory, and put the insurance companies out of business as a result, would there not be a N&P challenge under the Commerce Clause?

                            That is where this leads--that if the government hasn't addressed a problem before, and the court hasn't issued a limiting principle, well then it's outside of the government's authority.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:43:51 PM PDT

                            [ Parent ]

                          •  red herring (3+ / 0-)
                            Recommended by:
                            Clem Yeobright, wsexson, G2geek

                            There is absolutely ZERO proof that a public option would end the health insurance industry. There is actually a rather large pool of evidence pointing out the exact opposite in Canada and the UK.

                            The US govt has regulated businesses out of the market, asbestos for example, and it was perfectly legal.

                          •  well, that busts another myth! (0+ / 0-)

                            The myth that a public system would put the private insurance companies out of business.

                            Oh how I wish it was true!  Gnarl, gnash, and existential angst!

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 11:47:43 PM PDT

                            [ Parent ]

                          •  Geekesque said single payer not (0+ / 0-)

                            public option.

                            Canada and UK do not have a public option.  Canada has a single payer and UK has socialized medicine.

                            Right man, right job and right time

                            by Ianb007 on Thu Apr 05, 2012 at 02:02:09 PM PDT

                            [ Parent ]

                          •  I don't think there would be a viable challenge (4+ / 0-)
                            Recommended by:
                            Clem Yeobright, wsexson, fuzzyguy, G2geek

                            There's already precedent -- VA, Medicare -- for providing insurance that takes business away from private insurers.

                            Democrats must
                            Earn the trust
                            Of the 99% --
                            That's our intent!

                            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                            by Seneca Doane on Wed Apr 04, 2012 at 06:11:37 PM PDT

                            [ Parent ]

                          •  no, it wouldn't. (0+ / 0-)

                            It wouldn't destroy the entire regulatory scheme.

                            It would only destroy the private health insurance companies.  

                            Why are you defending them as if they're members of your family?

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 10:51:56 PM PDT

                            [ Parent ]

                          •  Removing the mandate would destroy (0+ / 0-)

                            the whole healthcare scheme with skyrocketing premiums.  Both the Sc justices and the arguing lawyers all agree on this.  The argument have moved past this.

                            Right man, right job and right time

                            by Ianb007 on Thu Apr 05, 2012 at 02:06:07 PM PDT

                            [ Parent ]

                        •  Who said that the N&P clause is a dead letter? (2+ / 0-)
                          Recommended by:
                          Clem Yeobright, G2geek

                          I wouldn't accept it as allowing indefinite detention without trial either.  That doesn't make it a dead letter.  It just means that it has some limits.

                          Democrats must
                          Earn the trust
                          Of the 99% --
                          That's our intent!

                          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                          by Seneca Doane on Wed Apr 04, 2012 at 02:37:36 PM PDT

                          [ Parent ]

                          •  excellent example: indefinite detention. (0+ / 0-)

                            The Bush Admin argued vociferously for indefinite detention without trial, as a "necessary and proper" concomitant of the Congressionally-granted authorization to go to war, and as essential to the fulfillment of policy.  

                            One more reason why all the cheerleading for the insurance industry around here is so creepy.

                            "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                            by G2geek on Wed Apr 04, 2012 at 11:51:10 PM PDT

                            [ Parent ]

                        •  you forgot a few other ones. (0+ / 0-)

                          If the mandate goes away, not only does community redlin-, er, uh, rating go away, but also puppies and kittens will go away!, and ponies!, and for all we know it might end up killing God!  

                          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                          by G2geek on Wed Apr 04, 2012 at 10:44:27 PM PDT

                          [ Parent ]

                      •  good point: you just found a huge loophole! (0+ / 0-)

                        Insurance companies will utilize any loophole they can find in order to circumvent the limits on pre-existing conditions.

                        Now I don't know if this is in the law or not, but if they are allowed to use "community rating," then they will simply (as you said) "slice and dice the data" to come up with something that produces the same result as the proscribed action.  They'll assign some overpaid corporate bureaucrat to come up with indecipherable language to that effect and then do what they damn well please.

                        There's another word for that: redlining.  

                        "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                        by G2geek on Wed Apr 04, 2012 at 10:41:50 PM PDT

                        [ Parent ]

        •  and that gets us the end of Social Security and... (1+ / 0-)
          Recommended by:
          Seneca Doane

          .... the end of Medicare, delivered up to privatizers and evil corporations on a silver platter.   Mandatory 401K with your "choice" of TBTF banksters.

          No f---ing thanks.

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Wed Apr 04, 2012 at 09:53:29 PM PDT

          [ Parent ]

      •  It the federal govt can't mandate (1+ / 0-)
        Recommended by:
        Seneca Doane

        everyone have heath insurance whether it be private or public, how can we even have a single payer system where the govt mandates that we buy health insurance from them?

        Bottom line is for ANY healthcare system to work and hold prices down there has to be some sort of mandate period. Whether it's the ACA or a single payer or a strict socialized medicine system.  There isn't a system in the world AFAIK that doesn't require all it's citizens to participate.

        Right man, right job and right time

        by Ianb007 on Wed Apr 04, 2012 at 01:15:39 PM PDT

        [ Parent ]

        •  I don't see anybody arguing against universal (2+ / 0-)
          Recommended by:
          Seneca Doane, G2geek

          health care availability, even a right to health care.

          The question at hand is whether this can constitutionally be effected through the power assigned Congress by the Commerce Clause.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 01:21:10 PM PDT

          [ Parent ]

        •  The federal govt can use its taxing power (4+ / 0-)
          Recommended by:
          Clem Yeobright, Ianb007, wsexson, G2geek

          I've linked to my previous diary up there; please refer to it.

          Federal authority to act comes from many different sources.  The Commerce Clause, the Taxation Clause, and the Necessary and Proper Clause -- which along with the Supremacy Clause have the most unrestrained scope -- are different.  The question here is whether one can use the Commerce Clause (boosted by the N&P Clause) to do what could be done more straightforwardly through taxation -- if we do it through a tax.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 01:26:44 PM PDT

          [ Parent ]

          •  I think you are correct. (0+ / 0-)

            Despite all this talk of the Commerce Clause in the media and on Daily Kos.  The mandate is actually implemented though the tax code.  Whether we call it a penalty or a Tax is really semantics IMHO.

            Right man, right job and right time

            by Ianb007 on Wed Apr 04, 2012 at 01:56:01 PM PDT

            [ Parent ]

            •  Sadly, no, it's not semantics (4+ / 0-)
              Recommended by:
              Clem Yeobright, fuzzyguy, wsexson, G2geek

              The Obama Administration put up all sorts of barriers to calling it a tax, for reasons I'm unclear about.  (It may be a neoliberal thirst to legitimize all market regulations; it may be for political reasons with either the public or with legislators; it may have simply been a mistake because they didn't see this coming.)

              Kennedy could probably say "screw you, it's a tax, and it's OK through the N&P Clause" -- and I hope that he will.  But he'd have to do it on his own, which is bad form.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 02:11:42 PM PDT

              [ Parent ]

              •  The Obama administration probably (2+ / 0-)
                Recommended by:
                Clem Yeobright, dRefractor

                was trying to avoid the political pitfall of imposing a new "tax".

                Nonetheless the Tax code is infested with penalties.  Trust me I know having paid many of them.  If they are unconstitutional please let me know.  I would love to get my money back.  JK

                I am not a law expert or even a lawyer but from where I sit, if it is constitutional for the federal govt to institute penalties in it's enforcement of it's constitutional powers to lay and collect taxes then surely it can institute penalties as part of it's powers to regulate interstate commerce right?

                I am under no illusions that this court is not itching to throw pie in Obama's face and in some way overturn ACA.  However they are stuck with some rather unpleasant choices in doing so.

                If they rule the  mandate/penalty unconstitutional and leave the rest of the law in place.  Private insurers will soon be caught in the death spiral and in some cases b forced to go out of business.  Roberts and Alito will not side with the individual and let that happen. They are corporatists.

                If they try to repeal all or most of it.  They open up a pandora's box and put a single payer option as the only other viable solution to the national healthcare crisis.  Not something the conservative justices would be very keen on doing.

                Their best option would be to leave it as it is with some sort of limiting principle and move on.  The tea party and uber conservatives are going to go crazy, but the corporate wing is smart enough to understand that the ACA is the best deal they can get, if they want to keep private insurers in the game. The mandate is right out of the Heritage Foundations playbook.

                I expect 6-3 or 7-2 ruling in favor of The ACA.  Thomas and Scalito maybe lost causes.  I am sure Thomas doesn't want to upset his Tea party wife and friends  lol.  That's my informed layman's take.

                Right man, right job and right time

                by Ianb007 on Wed Apr 04, 2012 at 05:48:18 PM PDT

                [ Parent ]

                •  But does Congress have the power to (0+ / 0-)

                  FORCE you into a market when you are not already in one?

                  Always before you had to have entered a market for regulations to come into effect. Most have been citing Wickard where a farmer was prohibited to grow wheat even for his own use because of its potential impact to the wheat market.

                  This would be the government telling you that you HAD to grow wheat, even if you weren't a farmer, or pay a penalty.
                  Does Congress (and SHOULD Congress) have that right?

                  Does that mean it can compel you to HAVE to have a 401k? (Which is a privatized form of pension/SS based on your and your employers direct contributions).

                •  not quite, and differently (0+ / 0-)

                  The tax code is infested with "rewards" for various forms of consumption, such as tax breaks for mortgages, and Bush's infamous tax credit for buying gas-guzzlers.   It's also infested with penalties for not paying taxes, which is subtly but significantly different to "not buying stuff from private companies."

                  Nowhere in the tax code is there a provision saying "if you don't buy product Q from companies X, Y, or Z, then you are in violation of the tax code and you must pay a penalty."  That has never existed before, and if it's granted, then every special interest in town will line up at Congress with their "unique situation" that demands compulsory consumption or escalating fines for non-consumers.  

                  Yes the Mandate is straight from Heritage Foundation.

                  But Obama is goading them into thinking it's part of his "socialist agenda."  And when it's repealed, the pressure for the public option will become truly inexorable.  

                  "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                  by G2geek on Thu Apr 05, 2012 at 12:49:45 AM PDT

                  [ Parent ]

              •  but if they call it a "tax," what exactly is it... (0+ / 0-)

                .... paying for?  

                Clearly the only way to square it as a "tax", with the policy goals that are supposed to underlie the legislation, is to have it pay for health coverage.  In other words, the public option by default.

                "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

                by G2geek on Wed Apr 04, 2012 at 11:56:10 PM PDT

                [ Parent ]

        •  the substantive difference is between... (0+ / 0-)

          ... a tax which is paid to the government for the provision of government services, and a mandatory transfer of wealth directly from one private party to another.

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Wed Apr 04, 2012 at 11:54:18 PM PDT

          [ Parent ]

      •  The government forces me to fund my retirement (0+ / 0-)

        through Social Security. Is that substantively different in your view? (and remember, you're not talking to a lawyer, just someone who likes to hang around when lawyery types chat about lawishy stuff.) The actuaries don't know if you exercise or not, they only deal in aggregates. But if enough people don't exercise, eventually the actuary will know, and insurance rates will be affected. I wonder how other democracies contend with the constitutional issues surrounding THEIR government run healthcare systems? Your argument should not be dismissed- opponents of the law say that if the govt can make you buy health insurance, what CAN'T they make you buy? I think that's a question that we should continue to explore. If you want the freedom to not have to buy health coverage, should I have the freedom from paying for your emergency room visit through higher premiums rendered by an actuary who noticed you were born? Don't you lawyer types sometimes wish things were a little more black and white, or is this where all the fun is?

        Let's go back to E Pluribus Unum

        by hazzcon on Wed Apr 04, 2012 at 01:16:46 PM PDT

        [ Parent ]

        •  Social Security is a tax. (6+ / 0-)

          It's constitutional as an exercise of the taxing authority.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 01:27:07 PM PDT

          [ Parent ]

        •  They do so through the Taxation power (6+ / 0-)

          They don't do it through the Commerce Clause.  That's the issue at hand.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 01:27:39 PM PDT

          [ Parent ]

          •  So what you are essentially saying (1+ / 0-)
            Recommended by:
            Seneca Doane

            is that the Federal govt can institute a mandate to buy a product(medicare and SS) through it's taxation powers but can't mandate a anything by implementing a tax penalty in it's Commerce clause powers?

            Do I have that right?

            Right man, right job and right time

            by Ianb007 on Wed Apr 04, 2012 at 10:03:47 PM PDT

            [ Parent ]

            •  Yes. Congess is bound by the ennumerated (1+ / 0-)
              Recommended by:
              Seneca Doane

              powers in the Constitution. If the ACA was based upon the Taxation Clause, there would be nothing constitutional to question about it. Congress has the explicit ability to tax and spend that revenue.

              This is an expansion of the Commerce Clause. Can Congress force persons into a market who were NOT in the market already, and penalize them if they don't?

              From a policy perspective, this is the only way to prevent adverse selection (persons not paying premiums into insurance but joining and using benefits when they are sick). However, is that a compelling enough reason to allow Congress to expand its power?

              The other question is where does this power stop? SCOTUS asked for a limiting principle, where they could draw a rhetorical line in the sand and say "This is exactly what Congress can regulate, and no farther."

              Which is where the questions about broccoli and health clubs come in. Buying broccoli and joining health clubs could be shown to improve the overall health of citizens. What makes those markets different from the health insurance market that Congress could compel you to have insurance, but NOT buy broccoli or join a health club?

              •  The mandate is necessary as you say (0+ / 0-)

                to prevent adverse selection and the ensuing death spiral for insurers.  Broccoli and Health Club memberships are not.

                It would seem to me if congress has the power to regulate the heath care market from the commerce clause then it should be able to mandate through instituting a tax penalty on those that are in the system but don't pay premiums.  Everyone that has a physical body is in the market.

                Right man, right job and right time

                by Ianb007 on Wed Apr 04, 2012 at 11:09:38 PM PDT

                [ Parent ]

                •  Health insurance isn't the same thing as (0+ / 0-)

                  healthcare. What makes health insurance so special in the eyes of the Constitution that is gets to be propped up like that?

                  •  In the modern age healthcare and health insurance (0+ / 0-)

                    are irreversibly intertwined.  There is no way to deliver healthcare without insurance of some kind.  Whether public or private.  No where in the world has this been accomplished.

                    Right man, right job and right time

                    by Ianb007 on Wed Apr 04, 2012 at 11:42:31 PM PDT

                    [ Parent ]

                    •  But that doesn't mean that this is a (0+ / 0-)

                      constitutional way to accomplish that policy goal.

                      As pointed out, if this was a tax, then there would be no constitutional issue. By forcing people to enter the health insurance market they are expanding the commerce clause. They may consider the nature of the healthcare market to be the limiting reason as well, and decide for the ACA. They may not.

                      That's the problem. There are good arguments (that are not partisan) on both sides of the issue. When Congress decided to go with "it's not a tax" issue, they were breaking new ground.

                      •  I believe during the arguments (1+ / 0-)
                        Recommended by:
                        hazzcon

                        before the SC,  even Mr. Clement conceded that congress has the authority to levy a tax penalty  for not having health insurance.  What their argument boils down to is the timing.  The conceded that  congress can force you to buy insurance but ONLY at the point of service.

                        Which lead to this exchange:

                        JUSTICE KAGAN: Well, Mr. Clement, now it seems as though you're just talking about a matter of timing; that Congress can regulate the transaction, and the question is when does it make best sense to regulate that transaction?

                        And Congress surely has within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It's just a matter of timing.

                        MR. CLEMENT: Well, Justice Kagan, we don't think it's a matter of timing alone, and we think it has very substantive effects. Because if Congress tried to regulate at the point of sale, the one group that it wouldn't capture at all are the people who don't want to purchase health insurance and also have no plans of using health care services in the near term. And Congress very much wanted to capture those people. I mean, those people are essentially the golden geese that pay for the entire lowering of the premium.

                        Also the admin IS saying that the fine comes from it's power to tax.
                        Although it wasn't termed a tax, Solicitor General Verrilli said, that it is in the Internal Revenue Code, collected by the IRS and on your tax return, compels the court to accept that the power to levy that penalty indeed comes from Congress' power to tax

                        Right man, right job and right time

                        by Ianb007 on Thu Apr 05, 2012 at 01:19:16 AM PDT

                        [ Parent ]

                    •  Not true (1+ / 0-)
                      Recommended by:
                      Clem Yeobright

                      The sheer number of Health Care practices that do not accept insurance yet still exist and thrive within the Health Care Market but not within the Health Insurance Market would argue otherwise. Propping up one market at the expense of another doesn't pass the sniff test for necessary and proper. There is no need to expand the powers of the commerce clause even further to advance this policy I think is at the core of this argument.

                      •  What sheer number are you talking about? (0+ / 0-)

                        What percentage of healthcare practices outside of a simple general practitioner giving flu shots and prescribing antibiotics is there 'Thriving" in America?   How many hospitals are there in America that don't accept insurance?  How many?

                        The argument before the supreme court now is not which policy is better but rather can the govt impose a tax penalty on someone for not having health insurance.  That's it.

                        Right man, right job and right time

                        by Ianb007 on Thu Apr 05, 2012 at 02:46:30 PM PDT

                        [ Parent ]

                        •  The majority (1+ / 0-)
                          Recommended by:
                          Clem Yeobright

                          of privately owned medical and dental practices have been adopting cash-based practices and it is especially common among practices that are just starting out to reduce administrative over head. Check out the AMA for more information.

                          The argument before the supreme court now is not which policy is better but rather can the govt impose a tax penalty on someone for not having health insurance.  That's it.
                          Is not the argument at all. The argument is about the expansion of the powers within the commerce clause, the limiting principles there in, and whether the mandate as written was necessary and proper given all that.

                          If the mandate had been implemented using the taxation power the current arguments against it would be legally moot. You pay a penalty, not a tax under the mandate as written. There is a significant difference between the two. Even amongst those who disagree about the commerce clause powers agree on that point. US Solicitor General Donald Verrilli has already argued that it is a penalty and not a tax.

                          •  You are going to have to cite (0+ / 0-)

                            some credible source with that statement.

                            Verrilli has stated that the mandate was implemented using the taxation power!  even though it's not a tax it's still in the tax code as many other penalties hence it is congress exercising it's taxing power.  Penalties and taxes are all derived from congresses ability to tax.

                            Read the transcripts yourself

                            JUSTICE SCALIA: But fees, you know, license
                            fees, fees for a hunting license, everybody knows those
                            are taxes. I mean, I don't think there is as much of a
                            difference between a fee and a tax as there is between a
                            penalty and a tax.
                             GENERAL VERRILLI: And that, and -- and I
                            think in terms of the tax part, I think it's useful to
                            separate this into two questions. One is a question of
                            characterization. Can this be characterized as a tax;
                            and second, is it a constitutional exercise of the
                            power?
                            With respect to the question of
                            characterization, the -- this is -- in the Internal
                            Revenue Code, it is administered by the IRS, it is paid
                            on your Form 1040 on April 15th, I think -
                            ­
                            JUSTICE GINSBURG: But yesterday you told
                            me -- you listed a number of penalties that are enforced
                            through the tax code that are not taxes and they are not
                            penalties related to taxes.
                             GENERAL VERRILLI: They may still be
                            exercise of the tax -- exercises of the taxing power,

                            Right man, right job and right time

                            by Ianb007 on Thu Apr 05, 2012 at 03:51:47 PM PDT

                            [ Parent ]

                          •  Poor Performance of Oral Argument (0+ / 0-)

                            Read the actual court documents and previous litigation in their entirety before you quote snippets.
                            The entire reason the SC is hearing the case now is because the penalty is not a tax. The SC could not hear the case if it were a tax until someone was forced to pay it under the Anti-Injunction Act. This was covered extensively on Monday March 26th during the oral arguments as well. Read what both Verrilli and Long argued that it was a penalty and not a tax. Poor oral performance now saying that it is a tax does not make it true. Check the amicus briefs since they are what actually matter.

                            Read the entirety of the transcripts rather than just posting the bits where the SG is waffling between the tax and penalty argument. He could not have gotten this far by saying conceding the mandate's penalty is a tax.

                            Arguing that the mandate is a tax now is disingenuous at best.

                          •  I have read the arguments (0+ / 0-)

                            Verrilli is not waffing between two arguments.  You are the one reading that into the arguments.  He clearly states that it a penalty not a tax and he is very consistant.   His argument, whether you agree or not is that a penalty can be enforced through the tax code.

                            JUSTICE GINSBURG: But yesterday you told
                            me -- you listed a number of penalties that are enforced
                            through the tax code that are not taxes and they are not
                            penalties related to taxes.
                            Your point that somehow if he just calls it a tax then suddenly it would magically become constitutional is a bit of a stretch. Not even the opponents in this are arguing it's not constitutional because it's not a "Tax".  Their argument is that it's not constitutional mainly because it does not get levied at the point of sale but rather before, forcing the individual into commerce.  i.e getting taxed for inactivity.

                            Right man, right job and right time

                            by Ianb007 on Thu Apr 05, 2012 at 08:25:00 PM PDT

                            [ Parent ]

                          •  I didn't say it would be magically constitutional. (0+ / 0-)

                            I said that it would be more difficult to fault the law since it would not rely solely upon the expansion of powers within the commerce clause as opposed to the established powers of taxation. It isn't a matter of what he calls it, it is a matter of what the mandate penalty actually is. Saying that I said otherwise is again disingenuous.

                            Also, several times Verilli called it "penalty tax". It is one or the other. Not both. Whether it is enforced like a tax is irrelevant for that particular argument. The difference between it being a penalty or tax has rather serious ramifications as have been pointed out already by the justices. Personally I find the oral arguments for this case to be largely useless. As they stand, they have no real bearing on the case. They are political theater and only confusing the populace on the issue. It is encouraging to see citizens engaged in attempting to understand the law at least so I'll take what I can get.

                            Please go read what Armando wrote about this already. While I may disagree with him on certain contexts within the area of the limiting principle, his dissection of nearly everything regarding the law as it relates to the commerce clause is spot on. I have neither the time nor the patience to write again, what has already been explained elsewhere.

        •  tax paid to gov is significantly different to... (1+ / 0-)
          Recommended by:
          hazzcon

          ... being forced under penalty of law to buy something from a private company.  

          That's the nexus of the whole issue.

          1-2-3 below, is fully constitutional, no question about it, no controversy 'bout that:

          1)  Small general tax increase, to pay for
          2)  Public Option for all, except for
          3)  those who provide proof of private insurance get a rebate in the amount of the tax increase.  

          "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

          by G2geek on Thu Apr 05, 2012 at 12:53:21 AM PDT

          [ Parent ]

    •  Who elected the actuaries? (0+ / 0-)

      Are you seeking to install them as the Fourth Branch of government?

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Wed Apr 04, 2012 at 09:51:13 PM PDT

      [ Parent ]

  •  We mandate because taxing is (4+ / 0-)
    Recommended by:
    Seneca Doane, BachFan, Odysseus, G2geek

    politically impossible. Yes we could provide medical care for all by taxing everyone for the service and then providing a mechanism for providing care from these funds. Indeed this is what practically every other developed nation does. The political problem is we have just created a "single payer" health care system, also known as "socialized medicine." The mandate is necessary to keep the illusion there can be a market based health care system. If the mandate is ruled unconstitutional then we will have to choose between "socialized medicine" and watching health care become so expensive only the 1% can afford it.

    •  "Politically impossible" is a political argument (7+ / 0-)

      You may be right there, but from a constitutional law perspective, it doesn't matter.  It can't matter.  Horrible consequences would follow from such a principle.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 01:05:30 PM PDT

      [ Parent ]

      •  from a constitutional law perspective (0+ / 0-)

        if the New Deal was unconstitutional Roosevelt should have simply sat there and let the Communists take over. Instead he campaigned against the court until the court changed its mind.

        •  The difference is that FDR was correct there (5+ / 0-)

          The Supreme Court was overreaching.  The Supreme Court has been overreaching a lot lately, as with Citizens United, but that does not mean that this would be an overreach.  Of course, Obama can campaign against the Court all he wants; it would just be better if he did so in a case where he was correct.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 01:29:20 PM PDT

          [ Parent ]

  •  Dude - Jacobson. (3+ / 0-)
    Recommended by:
    Geekesque, yellowdog, Ianb007

    That was a whole lot of words on a screen to show you don't know which precedents were used in this case and how they apply.

    You also don't know how Supreme Court decisions are "argued." Hint: Not everything is done inside the courtroom on those 3 short days. The predominance of the evidence the Justices will consider is in written form. The circus you witnessed was just so they could ask absurd questions and get them on the record.

    And characterizing Verrilli as not having articulated his argument is uninformed at best. From someone who knows what he's talking about, having served as Ronald Reagan's Solicitor General and having argued 25 cases before the Supreme Court himself, former General Charles Fried weighs in thusly:

    The government’s chief advocate got hammered for his defense of Obamacare before the Supreme Court. Former Solicitor General Charles Fried on what his critics got wrong.

    ... the solicitor general is treated with great deference by the justices not because of his title but because he is trusted to give on behalf of the government a sober, accurate, measured presentation that is scrupulously fair to the other side of the argument and insists on stating the strengths and weaknesses of his own case.

    ...

    What he encountered instead was a barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions, which are supposed to clarify the presentation and probe for weaknesses.

    Read also: Reagan’s solicitor general: ‘Health care is interstate commerce. Is this a regulation of it? Yes. End of story.’
    EK: It seemed at times that Verrilli was struggling to articulate a limiting principle. Was that because he felt he needed to appeal to Kennedy and Roberts by almost inventing a limiting principle that isn’t really evident in the case law?

    CF: I think Don did a perfectly fine job. The only thing that I missed was the kind of passion and rhetoric which we were hearing from the other side of the bench. I don’t know if I can fault him for that.


    And Charles Fried's testimony before the Senate Judiciary Committee
    There is the argument, which I believe is entirely wrong and even worse quite confused, that the health care mandate is not a regulation of commerce because it requires an economic act -- entering the health insurance market -- rather than prohibiting or limiting an economic activity. This is what Chief Justice Marshall, who had been an active member of the Virginia legislature at the time the Constitution was adopted, wrote in 1824 in Gibbons v. Ogden Regarding Congress's Commerce power:

       

    What is this power?

        It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, declaring war, the sole restrains on which they have relied, to secure them from its abuse.

    To my mind that is sufficient to provide the constitutional basis for the mandate. The mandate is a rule (more accurately, part of a system of rules) "by which commerce is to be governed." Neither the Constitution nor the great Chief Justice said anything about limiting such rules to those that prohibit or limit commerce. But to those who may argue that, for some reason not disclosed in any constitutional text or known constitutional doctrine, this is not sufficient, there are these words of Marshall in 1819 in McCulloch v Maryland, often invoked, most recently in United States v Comstock, in an opinion joined by Chief Justice Roberts, and in Gonzales v Raich, in an opinion joined by Justice Scalia:

     

      [T]he powers given to the government imply the ordinary means of execution. . . The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed to select the means. . . The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution. . . We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.
    Mandatory enrollment by all in the health insurance system seems close to absolutely necessary -- though, as Marshall wrote, the necessity need not be absolute -- to a scheme that requires private health insurers to accept virtually all applicants regardless of preexisting conditions and to retain them no matter how large the cost they impose on the system. To allow the young and well to wait until they are older and sicker to enroll is to design a system of private insurance that cannot work. Everyone knows that.

    ...

    Is the health care mandate an invasion of constitutionality protected by liberty? That question was answered in 1905 by a unanimous Court in Jacobson v. Commonwealth of Massachusetts, upholding against a liberty argument the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination. By refusing to submit to a state-mandated smallpox vaccination, Jacobson was endangering not only himself but others whom he might infect. By refusing the much less intrusive and less intimate imposition of a requirement that one purchase health insurance if one can afford it, a person threatens to unravel -- in the view of Congress and the health insurance industry, but Congress is enough -- the whole scheme designed to protect by health insurance the largest part of the population.

    ...

    To sum up:

    Insurance is commerce.

    Health insurance is undoubtedly commerce.

    Congress has the power to regulate commerce, and that means that Congress may prescribe, in Chief Justice Marshall's words, a rule for commerce.

    The health care mandate is a rule for commerce. And in any event it is a necessary and proper part of the particular regulation of health insurance that Congress chose to enact.

    ...

    The objection that the mandate is an imposition on the individual is an objection not to Congress's exceeding its power to lay down a rule for commerce, but to Congress's violating an individual liberty as guaranteed by the 5th Amendment. But the Jacobson case, which has been settled precedent for more than one hundred years, shows conclusively that the mandate is not an unconstitutional imposition on individual liberty."

    ...

    So there you have it. Your slippery slope has been paved over.

    Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

    by jillwklausen on Wed Apr 04, 2012 at 01:05:35 PM PDT

    •  Do immigrants have to pay back-premiums (1+ / 0-)
      Recommended by:
      wsexson

      to cover those they didn't pay when younger?

      That seems to be implied here:

      To allow the young and well to wait until they are older and sicker to enroll is to design a system of private insurance that cannot work. Everyone knows that.

      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Wed Apr 04, 2012 at 01:11:31 PM PDT

      [ Parent ]

      •  (Pssst.... Clem....) (1+ / 0-)
        Recommended by:
        Clem Yeobright

        (Are we having fun yet?)

        (If at some point it seems like I'm losing my mind here, you -- not the others here -- let me know.)

        Democrats must
        Earn the trust
        Of the 99% --
        That's our intent!

        "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

        by Seneca Doane on Wed Apr 04, 2012 at 02:41:24 PM PDT

        [ Parent ]

        •  I'm here until Dodgers-Angels is over (1+ / 0-)
          Recommended by:
          Seneca Doane

          Then I have other obligations.

          I'm truly disappointed that no one here wants to deal with the question at hand ... The best answer you've gotten as far as I can see is last week's from Armando: "Feck you".

          You've been judicious so far, I'll tell you that.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 03:12:37 PM PDT

          [ Parent ]

        •  BTW: (2+ / 0-)
          Recommended by:
          Seneca Doane, wsexson

          The 'immigrant' question addresses Alito's spot-on recognition (per Clement) that the ACA has been constructed to make the relevant time-period one year - not a lifetime as some would have it.

          It's not especially relevant to your exposition so I'm rather glad my comment has been ignored, but in general it's another problem for the ACA and assertions of its 'fairness', I think.

          Game's over! Angels 8-3. Fuck.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 03:32:24 PM PDT

          [ Parent ]

        •  I don't think you are (0+ / 0-)

          I think that both sets of folks here have good arguments.  I've gone from being fairly convinced that this falls squarely within the commerce clause to unsure.

          I don't have time at the moment to say more, except, THANKS!

    •  My liberal constitutional lawyer friends, who are (4+ / 0-)
      Recommended by:
      Clem Yeobright, fuzzyguy, BachFan, wsexson

      all generally part of the centrist neoliberal consensus regarding regulated markets, would agree with Fried that the broccoli argument is a "canard."  I think that this is because they start with the idea that we need to do it this way, so it is the Court's responsibility to allow us to do it this way.  The problem is that the broccoli argument -- or, more persuasively to me, the health club argument -- is not a canard.

      True, the idea that the government can force people to eat broccoli is a canard, because it runs into privacy issue of bodily integrity.  But the government can still lead people to water even if it can't make them drink.  If the mandate is upheld, it can by the same logic force them to purchase a private health club membership (unless they can show that they exercise on their own.)  An actuary will tell you that that lowers costs.

      So, if you can really regulate commerce based on the "activity" of mere existence, then you need to either accept the "can make you buy broccoli/health club access" argument or come up with a much better bright line.

      Jacobson argues for there being a slippery slope.  I'd argue that it would be justified as a tax imposed for the general welfare -- as this should be.  And note also that this was an exercise of the state's police power (not the federal government's power) against a federal liberty interest.  This doesn't rely on a plenary police power because the federal government is once again understood not to have one.

      It shocks me at the misuse of cases by defenders of this law -- not so much you, but great professors and attorneys who should know better.  It's like they flat out don't understand the objections at issue.  They don't get how this is new -- and how, if it's possible, it's pretty much uncabined.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 01:54:20 PM PDT

      [ Parent ]

      •  The problem with your argument is that (3+ / 0-)
        Recommended by:
        fuzzyguy, Mindful Nature, Ianb007

        with the precedents we have in place, Congress actually can force someone to buy broccoli.

        The fact that they haven't done so is merely a reflection of the fact that no one has proved the welfare of the nation "essentially depends" on eating broccoli.

        See again McCullough, Comstock and Raich.

        Just because it's bad law doesn't mean it isn't existing law. And it's precedent that enjoys Stare Decisis, no less.

        Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

        by jillwklausen on Wed Apr 04, 2012 at 02:19:10 PM PDT

        [ Parent ]

        •  Did you read my previous diary? (1+ / 0-)
          Recommended by:
          Clem Yeobright

          The one that starts out

          The government can, absolutely, force you to buy broccoli.  (Do you really doubt it?  After all, it can force you to buy unwanted fighter jets and standardized tests for your schoolkids, too.)
          Yes, it can.  It can do so through the Taxation power.

          McCulloch didn't say "you, citizen, have to open an account with the federal bank."  Raich didn't say "you, citizen, have to grow marijuana so that we can keep you from growing marijuana."  Raich voluntarily entered the arena of commerce.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 02:44:29 PM PDT

          [ Parent ]

          •  I did not read your other diary, but (1+ / 0-)
            Recommended by:
            Mindful Nature

            you're forgetting Wickard in all this, too.

            Not only was Wickard not in the wheat market, he didn't have to be in the wheat market if he chose to kill (or sell) all his animals he was using his wheat to feed.

            The Robes still made him destroy his crop because he wasn't participating in commerce by growing his own wheat.

            Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

            by jillwklausen on Wed Apr 04, 2012 at 03:48:56 PM PDT

            [ Parent ]

            •  that's key (1+ / 0-)
              Recommended by:
              jillwklausen

              o.k., must run, but I think tha'ts the right analysis.

            •  Sure he was in the wheat market (1+ / 0-)
              Recommended by:
              Clem Yeobright

              As a farmer keeping livestock, he was someone that other farmers would count upon as part of their market for providing feed.  By growing his own wheat, he affected the broader market.  If everyone else did the same (because surely his sole farm would not have been a problem) the industry could suffer substantially.  So, yes, by supplanting commerce he was affecting it by undercutting demand.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 06:15:00 PM PDT

              [ Parent ]

              •  And that is exactly what freeloaders are doing (0+ / 0-)

                with health care and health insurance.

                Exactly.

                By refusing to participate until their condition is such that it will cost exponentially more to treat, they are severely affecting commerce in the already-regulated health care and health insurance industries, driving costs up for everyone who's participating so we can cover their costs at a later time. Costs which, I remind you, they have no paid into the system for as the insured have.

                How is it that you don't recognize that?

                Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

                by jillwklausen on Wed Apr 04, 2012 at 07:27:58 PM PDT

                [ Parent ]

                •  As noted above (in response to you) (2+ / 0-)
                  Recommended by:
                  wsexson, Seneca Doane

                  The ACA reboots every twelve months.

                  If your argument here were valid, then immigrants would have to pay back-premiums to age 18. After all, someone who immigrates at age 50 and pays FICA for 15 to 20 years receives SS benefits calculated on his actual contributions, significantly less than someone the same age who sat in the cubicle next to him and received the same salary for all those years but also made contributions for 30 years previously.

                  A scofflaw who manages to evade ACA for 30 years - or someone who pays the penalty - will enter the health insurance market when s/he chooses on exactly the same terms as the party who has been paying premiums for all those years.

                  Am I right, or am I right? - The Singing Detective

                  by Clem Yeobright on Wed Apr 04, 2012 at 08:15:15 PM PDT

                  [ Parent ]

                  •  Immigrants are not under US (0+ / 0-)

                    jurisdiction until they have immigrated into the United States so I don't think we could hold them accountable for not having paid into the system before they immigrated.  

                    Right man, right job and right time

                    by Ianb007 on Wed Apr 04, 2012 at 10:25:25 PM PDT

                    [ Parent ]

                    •  Point is: (0+ / 0-)

                      If ACA is a 'lifetime plan', as the above commenter contends, then immigrants would suffer effects for being latecomers - just as they do under Social Security.

                      If immigrants are not 'freeloaders' then neither are others who join the pool later rather than sooner.

                      Note: There is a case and a place for the 'free rider' argument under an annually-based system, but this is not it.

                      Am I right, or am I right? - The Singing Detective

                      by Clem Yeobright on Thu Apr 05, 2012 at 05:05:54 AM PDT

                      [ Parent ]

            •  There are other routes out of Wickard. (1+ / 0-)
              Recommended by:
              Seneca Doane

              The resolution which most appeals to me would be to mark those animals as tainted and assess a tax lien against the market value of the wheat.  Any monetary transaction involving the tainted property would be seized until the lein is fulfilled.

              The only thing I'm not sure of is whether it's common to hold leins in abeyance like this.

              -7.75 -4.67

              "Freedom's just another word for nothing left to lose."

              There are no Christians in foxholes.

              by Odysseus on Wed Apr 04, 2012 at 06:28:12 PM PDT

              [ Parent ]

    •  for someone who's a ferocious Obama supporter... (0+ / 0-)

      .... you sure are underestimating him.

      Now it turns out that the infamous Geekesque is also a ferocious Obama supporter, so I owe him an apology for insinuating he was some kind of conservative.

      But he's underestimating Obama too.

      After the SC decision comes out I'm going to publish a diary with the thesis I've had in mind for what Obama is really up to.  It may surprise you.

      But in the meantime, read this:

      https://en.wikipedia.org/...

      "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

      by G2geek on Thu Apr 05, 2012 at 01:01:28 AM PDT

      [ Parent ]

  •  It's the Court's job to come up with the (0+ / 0-)

    limiting principle.  And they're emminently capable of doing so, if they're motivated.   They've been doing that with commerce clause cases for well over a century.

    The problem is that they have no interest in doing so.  They are going straight from "government seeks power" to "ohmigod LIBERTY!!!"

     

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Wed Apr 04, 2012 at 01:08:19 PM PDT

    •  They are going to find a limiting principle (2+ / 0-)
      Recommended by:
      Clem Yeobright, Mindful Nature

      and there's a good chance that it will be along the lines of:

      "you can't drag someone into a market when they've taken no affirmative action to put themselves in the market and then regulate them as market participants; otherwise there would be a grand parade of horribles."
      That stance has at least 3-4 votes, maybe 5.  I still think that Kennedy may do something like saying "I'm going to invoke constitutional avoidance and not even reach the Commerce Clause question because this power is justified by the Taxation Power as it is boosted by the Necessary and Proper Clause."  That would be constitutional -- and little danger of a parade of horribles.

      Alternatively, I hope that he is more open than he seems to severing the mandate (maybe with just a few other painful excisions) rather than tossing the whole bill.

      There's a whole argument up there if you would like to engage it.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 01:21:30 PM PDT

      [ Parent ]

      •  Yes, they will fabricate a pretext (1+ / 0-)
        Recommended by:
        cheerio2

        that allows them to strike down the statute.

        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

        by Geekesque on Wed Apr 04, 2012 at 01:26:14 PM PDT

        [ Parent ]

        •  It wouldn't have to be a pretext (2+ / 0-)
          Recommended by:
          fuzzyguy, Clem Yeobright

          If you want to overlook Lopez and Morrison, then this becomes easy.  But if your plan is to demand that the Court overturn its two signal Commerce Clause decisions of the past two decades to get this one right is unrealistic and unwise.

          Again -- engage the freakin' slippery slope argument.  That's why I wrote it.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 01:32:37 PM PDT

          [ Parent ]

          •  It's only slippery if you grease it. (0+ / 0-)

            If someone says they can't come up with a limiting principle that would allow the mandate to go forward, they are simply refusing to try.

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Wed Apr 04, 2012 at 01:47:25 PM PDT

            [ Parent ]

            •  Sure, I can do that (1+ / 0-)
              Recommended by:
              wsexson

              but the limiting principle would allow lots of other things to go forward to.  If it were so easy, Verrilli would have done it in oral arguments and you'd be doing it right now.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 02:13:21 PM PDT

              [ Parent ]

              •  The limiting principle has been pointed (0+ / 0-)

                out to you.

                You just then cite Lochner's logic to ignore it.

                Here's your fallacy:

                You claim there needs to be a limiting principle to the 'necessary and proper clause.'  But then you turn around and state that it doesn't matter what that limiting principle says, because Congress doesn't have that power to begin with.

                Your conclusion--that the mandate is per se unconsitutional--drives your analysis.

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Wed Apr 04, 2012 at 02:19:39 PM PDT

                [ Parent ]

                •  I think you misunderstand me (1+ / 0-)
                  Recommended by:
                  Clem Yeobright

                  and if I could figure out the logic of your claim, I'd rebut it.

                  Yes, there has to be a limiting principle to the "Necessary and Proper Clause."  Do you agree?  In fact, I use the N&P Clause to argue why the government can impose its "tax that isn't a traditional tax" under the Taxation power.

                  I don't think that "it doesn't matter what the limiting principle says."  The second part of my argument is that if this is permissible, it puts us on a hellacious slippery slope.

                  I've addressed Lochner elsewhere.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Wed Apr 04, 2012 at 02:47:52 PM PDT

                  [ Parent ]

                  •  For one, the "necessary and proper clause" (0+ / 0-)

                    itself is a limiting principle.  

                    But I digress.

                    What I don't believe I've explained is why the mandate is "necessary" in a way that a whole host of other possible regulations are not.

                    It all goes back to the adverse selection death spiral.  That problem is the key obstacle to health care reform.

                    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                    by Geekesque on Wed Apr 04, 2012 at 02:53:05 PM PDT

                    [ Parent ]

                    •  Adverse Selection Death Spiral (2+ / 0-)
                      Recommended by:
                      Clem Yeobright, wsexson

                      The Adverse Selection Death Spiral would be a problem currently if it were a genuine threat to commerce. There will likely be some adverse selection, however there is not any empirical evidence proving that the level of adverse selection would collapse the health insurance systems as opposed to stabilizing under a higher premium price. There are enough studies showing that young, relatively healthy people are willing to pay extra with limited incomes to maximize their coverage in "Cadillac" insurance plans within the retail sector even though they likely would not need the extensive coverage but they still purchased the better plans more often than not increasing their costs, but not their benefits in an appreciable way.

                      If costs were lower and policies weren't rubbish people would buy them.

          •  Now I am curious (0+ / 0-)

            where is the "limiting principle" to the tax and spending power in your mind?  The government could accomplish the exact same "parade of horribles" you just mentioned by changing tax incentives to penalize people who do not buy broccoli or health club memberships.  

            So if you think there needs to be limiting principle on the Commerce Clause to prevent broccoli related horrors, there should also be a limiting principle on the Tax and Spending Clause to prevent broccoli related horrors.  

            •  If the law is justified by the Commerce Clause (1+ / 0-)
              Recommended by:
              Clem Yeobright

              then it doesn't matter if there's a limiting principle in the Taxation Clause.

              But, yes: the government could tax people and give them broccoli as a federal benefit.  It would be unpopular and probably pointless, but it could do it so long as it could justify it being spending for common defense and/or general welfare.  It would also either have to meet the other criteria for a tax or be something that could sneak through via the N&P Clause.

              I argue that the government could not force you to eat broccoli, though, because it is constrained by your right to privacy, subspecies "bodily integrity," which I think lives most in the Ninth Amendment.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 02:52:55 PM PDT

              [ Parent ]

              •  I'm just saying that (0+ / 0-)

                if you are saying the slippery slope argument is justification for a limiting principle for the Commerce Clause, then it could also be justification for a limiting principle for the Tax and Spending Clause, since the government could use the taxing power to bring about the exact same situation as the mandate.  

                •  No it wouldn't (0+ / 0-)

                  because the case law for each is different and the Taxation Clause has its own limits that the Commerce Clause does not.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Wed Apr 04, 2012 at 10:25:21 PM PDT

                  [ Parent ]

                  •  You are changing the subject to case law (0+ / 0-)

                    which you were not arguing in your diary.  You did not say, "Case laws don't limit the commerce clause enough."  You argued that penalizing people for not buying broccoli/health club memberships is bad, so there needs to be a limit to the commerce clause.  But the government can penalize people for not buying broccoli/health club memberships through the tax and spending power.  Ergo, there needs to be a limit to the tax power also.  

      •  There is no need to take affirmative action (1+ / 0-)
        Recommended by:
        Geekesque

        to be in a market.

        And there is nothing "new" about Congress forcing people to pay into an insurance scheme. See also: Medicare, Social Security.

        I can't fathom why you're making this so hard on yourself. You seem to be at your wit's end about it, and you needn't be.

        Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

        by jillwklausen on Wed Apr 04, 2012 at 01:35:41 PM PDT

        [ Parent ]

        •  The question before the Court - and here - is (2+ / 0-)
          Recommended by:
          Seneca Doane, wsexson

          the Commerce Clause justification for the mandate.

          It's just noise for you to cite Social Security and Medicare, which have never been justified under the Commerce Clause.

          You'll do better to focus, I think.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 01:39:08 PM PDT

          [ Parent ]

          •  Sweet Jesus. Congress set out to regulate (0+ / 0-)

            the national health care market, which includes the health insurance/financing aspect of is.

            Part of that meant expanding health coverage to all Americans to make sure that none were denied health care on the basis of a pre-existing condition.

            In order to make that work, there needs to be an incentive to avoid the free rider problem.  Otherwise, adverse selection kills the entire program.

            The mandate/penalty is there to prevent individuals from arbing the system just like other regulations are in place to prevent insurance companies from arbing it.

            All well within the jurisdiction of Congress as part of its ability to regulate the national market.

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Wed Apr 04, 2012 at 01:58:07 PM PDT

            [ Parent ]

            •  I think that there's an argument to be made there (3+ / 0-)
              Recommended by:
              Clem Yeobright, fuzzyguy, wsexson

              that Congress should have the authority to regulate, but on the other side of it is the slippery slope argument, which you join most other defenders of the law as just trying to wish away.  And the slipperiness of the slope would be a legitimate reason for a Court to say "no, this extension of our Commerce doctrine to add a 'but we gotta do it because of the possibility free riders!' exception doesn't work."

              Please don't insult Clem and me by pretending like we don't understand what free riding is, what adverse selection is, why the mandate is there, etc.  This is not about the wisdom of the policy, it's about the authority to enact it.

              Meanwhile, you seem to leave the "Necessary" out of the "Necessary and Proper Clause."  If it can be done constitutionally through the Taxation Clause, then is a bold new Commerce Clause principle "necessary"?

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 02:18:05 PM PDT

              [ Parent ]

              •  Why wouldn't the "only to prevent free riders" (0+ / 0-)

                limiting principle work?

                What about it is so vast and unmanageable?

                This is the problem.

                You argue for an alternative, but then you refuse to consider in good faith the alternative presented.

                The "only to prevent free riders" argument would never permit mandatory gym memberships, for instance.

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Wed Apr 04, 2012 at 02:21:43 PM PDT

                [ Parent ]

                •  Mandatory gym membership is PRECISELY (1+ / 0-)
                  Recommended by:
                  Seneca Doane

                  a 'free rider' argument!

                  Am I right, or am I right? - The Singing Detective

                  by Clem Yeobright on Wed Apr 04, 2012 at 02:24:22 PM PDT

                  [ Parent ]

                  •  No, it isn't. (0+ / 0-)

                    The person with a gym membership would be paying the same for health insurance as the person without a gym membership.

                    What we are talking about is the case where one person buys health insurance but another doesn't, but both receive the same entitlement to health services and coverage.

                    The former is not the free rider problem that would be captured by the limiting principle, but the latter is.

                    In the latter case, the inevitable result is the adverse selection death spiral brought about by the free riders.

                    This is NOT the case with regards to exercise or eating right.  So long as participation is universal, personal habits are immaterial to the adverse selection problem.

                    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                    by Geekesque on Wed Apr 04, 2012 at 02:29:14 PM PDT

                    [ Parent ]

                    •  Of course it's a free rider question. (2+ / 0-)
                      Recommended by:
                      Seneca Doane, wsexson

                      Two people must pay the same premium, A does everything in his power to avoid incurring expense to be compensated while B does nothing to limit his/her expense, and A's premium is thereby determined by B's requirements.

                      B is certainly a Free Rider on A.

                      Am I right, or am I right? - The Singing Detective

                      by Clem Yeobright on Wed Apr 04, 2012 at 02:39:07 PM PDT

                      [ Parent ]

                      •  Do you understand the adverse selection (0+ / 0-)

                        death spiral problem?

                        The mandate is relevant to that problem, gym memberships are not.

                        "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                        by Geekesque on Wed Apr 04, 2012 at 02:45:56 PM PDT

                        [ Parent ]

                        •  Changing topic: Candidate Obama held (1+ / 0-)
                          Recommended by:
                          wsexson

                          that the mandate was not necessary. Justice Sotomayor elicited ready agreement that measures equivalent to the mandate would be justified 'at point of purchase'. What if the mandate were enforced through a severely restricted enrollment period, perhaps one month every fifth year?

                          The mandate as enacted in the ACA seems not to be as clearly necessary as you seem to think.

                          Am I right, or am I right? - The Singing Detective

                          by Clem Yeobright on Wed Apr 04, 2012 at 02:56:55 PM PDT

                          [ Parent ]

                          •  So now the Court has the expertise to make that (0+ / 0-)

                            determination?

                            What makes Justice Scalito an expert on health care economics?  How does he know whether your counter-proposals would work?

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:03:50 PM PDT

                            [ Parent ]

                          •  Aren't you asking him to rely on the SG's (1+ / 0-)
                            Recommended by:
                            Seneca Doane

                            argument that the mandate is necessary (and so not severable from the other two legs)?

                            What's the difference?

                            If the statute is unconstitutional because of the mandate, the severability question is a different question.

                            Am I right, or am I right? - The Singing Detective

                            by Clem Yeobright on Wed Apr 04, 2012 at 03:15:54 PM PDT

                            [ Parent ]

                          •  Courts are supposed to defer (0+ / 0-)

                            on policy matters to the political branches, which have vastly superior understanding of the subject matter.  If there is a plausible argument that the mandate is essential, that needs to be enough for the Court.  The courts can invalidate where it's clear that the government is full of it, but if the government has made a determination based on thorough analysis, the courts really need to accept that.

                            Otherwise, the Court will be enacting Mr. Herbert Spencer's Social Statistics as law.

                            In the case of the individual mandate, that burden has been more than met.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:22:23 PM PDT

                            [ Parent ]

                          •  Or even his Social Statics ... (0+ / 0-)

                            I'm done.

                            Am I right, or am I right? - The Singing Detective

                            by Clem Yeobright on Wed Apr 04, 2012 at 03:27:02 PM PDT

                            [ Parent ]

                          •  I defer to the advocate of Lochnerism (0+ / 0-)

                            on that point.

                            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                            by Geekesque on Wed Apr 04, 2012 at 03:28:30 PM PDT

                            [ Parent ]

          •  NO. (0+ / 0-)

            It is not noise to cite Social Security, Medicare, the provisions of the income tax code, etc.

            The Republican judges are arguing that the mandate is not "proper" under the Constitution. The Republican judges are arguing that there is some zone of economic liberty here, possibly protected by the Tenth Amendment, upon which the government has infringed. The Republicans are specifically relying on the claim that the mandate "goes too far" and "fundamentally changes the relationship between citizens and government." For this reason, they have presumed that the government faced a heavy burden to show its constitutionality. Their argument depends upon this premise.

            This premise is unfounded. When you compare the level of coercion inherent in the mandate to the level of coercion upon citizens inherent in other provisions implemented throughout the tax code, this argument falls apart. Congress has done nothing here to change the relationship to its citizens. It is doing the same thing it does through its powers of taxation to promote the general welfare: giving citizens a choice between doing X and paying a higher income tax bill. The relationship between the citizens has not changed in any fundamental way as the Republicans claim, but it has only been packaged in a slightly different (and even less coercive) form.

            •  No, they're arguing that the mandate (2+ / 0-)
              Recommended by:
              Clem Yeobright, wsexson

              as presented to them, with a big label saying "THIS IS NOT A TAX."  That's the mandate (and the case) in front of them.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 06:16:43 PM PDT

              [ Parent ]

  •  If you REALLY want a way to limit the damage (2+ / 0-)
    Recommended by:
    Geekesque, Deep Texan

    Head over to my diary about using the proper framing language to talk about this legislation.

    Even if it ends up being overturned, reminding people how good it actually is (or was) is more than half the battle to being able to get even better legislation in the next round. But there can only be a next round if we get more Democrats and Progressives in Congress! And we won't be able to get them into Congress if we leave them flapping in the wind without the right way to win people back into our camp on the health care issue!

    Health Care Reform Framing Language Redux

    Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

    by jillwklausen on Wed Apr 04, 2012 at 01:10:04 PM PDT

    •  I am trying to clean up my online language (2+ / 0-)
      Recommended by:
      Clem Yeobright, NearlyNormal

      so I will merely call that "happy horsepucky."  We've already got enough issues ammunition to win.  What we may not have is enough motivation and money.

      This is not a diary about framing.  It's a diary about whether or not we're right.  That may not matter to you from a PR perspective, but it matters to me both as an attorney and an activist.  Good luck with your diary.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 01:15:23 PM PDT

      [ Parent ]

      •  You're absolutely wrong on this (2+ / 0-)
        Recommended by:
        Deep Texan, Ianb007

        1. We have NO "issues ammunition" to win with without the proper framing of those issues.

        2. This reply was directed at your statement that you want a way to limit the damage that an unconstitutional ruling would have. I JUST GAVE YOU THAT WAY and you dismiss me by "politely" informing me you wont cuss at me? Way to cut off your nose to spite your face.

        3. I addressed your legal argument in a reply just above this.

        We'd love to have you on our team to fix our broken messaging problem, but that can only happen if you stop digging your heels in and refusing to see scientific facts that are right before your eyes, explaining in clear, unambiguous language the reason we lost the health care debate to the "death panel" crowd when this individual mandate shit was their idea in the first place.

        If we had handled our messaging right in the first place, the furor over this would have been hammered down to nothing and we wouldn't be here debating the constitutionality of this law, given that it IS constitutional according to every jurist who has reviewed it without a POLITICAL axe to grind (see also the decision by 4th Circuit Federal Judge Jeffrey Sutton - a more conservative jurist you won't find anywhere on this planet).

        In his 27-page opinion, Judge Sutton said that the health care law meets the classic tests that the Supreme Court has imposed in deciding whether Congress has acted within its authority under the Constitution's Commerce Clause, the provision that empowers Congress to regulate interstate commerce or matters that otherwise "substantially affect" interstate commerce.

        Noting that health care is a $2.5 trillion industry, Sutton said that "no matter how you slice the relevant market," virtually all of it affects interstate commerce, and Congress may constitutionally regulate such interstate economic activity. "Few people escape the need to obtain health care at some point in their lives, and most need it regularly," he observed. Everyone will eventually have some sort of big emergency bill that, left to their own devices, most individuals would be unable to pay. The health care mandate, he concluded, is little more than a requirement that everyone have insurance now so taxpayers and hospitals will not be left holding the bag later. Indeed, as he observed, federal law actually requires hospitals to accept many patients without regard to their capacity to pay.

        Furthermore, wrote Sutton, "No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce."

        Those opposed to the health care law raise good questions, he said, based on an intuition that this law cannot be constitutional. But "[n]ot every intrusive law is an unconstitutionally intrusive law," wrote Sutton.

        Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

        by jillwklausen on Wed Apr 04, 2012 at 01:28:24 PM PDT

        [ Parent ]

        •  Do you really think that we can't win the election (2+ / 0-)
          Recommended by:
          Clem Yeobright, fuzzyguy

          without winning these cases on Commerce Clause terms?  I disagree.  I also sure hope not, because our case isn't compelling.

          You're saying "limit the damage with proper framing."  That's not a constitutional law argument.  I'm saying that you have a sow's ear; advising me to describe it as a silk purse doesn't help anything.

          Look, LOTS of conservatives like the mandate plan because it is fundamentally a conservative/neoliberal proposal.  If you want to look to politics as a motivation for argument, that's why they defend it.  Movement conservatives are more interested in Tenth Amendment style arguments -- and the Court was (unexpectedly to most) echoing the concerns of movement conservatives.

          Sutton's argument boils down to "but we GOTTA do this."  That no more make it constitutional than Cheney's "but we GOTTA torture" make that constitutional.  Sutton did not give sufficient attention to the slippery slope implications.

          What we need now is a Plan B.  I've suggested one "Hail Mary" possibility.  I do you and the Party no favors by pretending that we can wish a winning argument into existence.  Whoever let Verrilli go before the Court with a lousy response on the key question of a limiting principle was the problem, not we messengers.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 01:42:37 PM PDT

          [ Parent ]

          •  You've accepted the Tea Party's legal (1+ / 0-)
            Recommended by:
            Deep Texan

            theory of the case, wherein if one asserts the slippery slope, the matter is decided.

            If folks such as yourself are going to enable the sophistry on the part of the new Lochnerists, you will be on your own.

            "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

            by Geekesque on Wed Apr 04, 2012 at 01:55:07 PM PDT

            [ Parent ]

            •  I am not pleased at all with the notion that (1+ / 0-)
              Recommended by:
              Clem Yeobright

              the Tea Party -- well, actually eminent libertarian legal scholar Randy Barnett, but I'm sure you see no reason to distinguish -- may be right on the merits here.  I really thought that the bright minds of the SG's office would have generated a firm and clear limited principle that would have knocked down the "broccoli and health club" argument without opening up a slippery slope.  I was and remain stunned that they somehow didn't.  It's almost like they were playing to lose.

              Calling names like "sophistry" isn't argument.  And, as I've said, I still want them to uphold the law but on different and more constitutionally secure grounds.  If they do take a huge leap and move us back to Lochner, I would oppose their doing so as a huge power grab.  But could they reasonably invalidate the entire law?  I can't rule it out.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 02:22:14 PM PDT

              [ Parent ]

              •  You have rejected various limiting principles (1+ / 0-)
                Recommended by:
                Deep Texan

                without giving a reason as to why they couldn't function as limiting principles.

                For instance, if one takes as the limiting principle "the government can mandate participation only to address free rider and other arbitrage-type of situations" you have not made a serious attempt to explain why that would not prevent the government from forcing people to buy broccoli.

                In other words, you need to somehow argue that people who don't buy broccoli or gym memberships would threaten the viability of a reuglatory scheme by free riding.

                "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

                by Geekesque on Wed Apr 04, 2012 at 02:25:47 PM PDT

                [ Parent ]

                •  Because that too involves free riding (1+ / 0-)
                  Recommended by:
                  Clem Yeobright

                  as I said above.  It wouldn't necessarily involve this regulatory scheme, but the general source of authority you cite -- that we have a new "... or to prevent free riding" addendum to the Commerce Clause, could in theory allow Congress to pass a law mandating purchase of health club memberships.

                  What you seem to want is a "one-off" justification for this law and nothing else.  That's not how constitutional law works.  If you got that, there would be no slippery slope, but you can't achieve it.  (Well, other than through a very specific Constitutional amendment, I suppose.)

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Wed Apr 04, 2012 at 02:56:39 PM PDT

                  [ Parent ]

              •  Again, Congress CAN enact a law forcing broccoli (0+ / 0-)

                purchase!

                They can! Jacobson says so.

                And that's precisely why Verrilli didn't argue that they couldn't!

                I posted the reason they could conceivably enforce broccoli purchase above, so I won't repeat myself here. Just scroll up a tiny bit.

                Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

                by jillwklausen on Wed Apr 04, 2012 at 02:36:48 PM PDT

                [ Parent ]

                •  Re-read Jacobson (2+ / 0-)
                  Recommended by:
                  Clem Yeobright, wsexson

                  Did Congress pass the law or did the legislature of the Commonwealth of Massachusetts pass the law under its well-recognized police powers?  I already addressed this above.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Wed Apr 04, 2012 at 02:57:42 PM PDT

                  [ Parent ]

                  •  It matters not. The United States Supreme Court (0+ / 0-)

                    ruled it constitutional under the United States constitution.

                    And don't forget Wickard. He refused to enter the wheat market and was growing his own for his own personal use. The Robed Ones said, "Nuh-uh, burn that shit down and buy it on the open market. You're affecting commerce by not purchasing it."

                    Sure, he could've killed all his animals so he'd have no reason to even need wheat, but the Court did not address that potentiality. It merely said Wickard was affecting commerce by not participating in it.

                    Bad law, but whatcha gonna do?

                    Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

                    by jillwklausen on Wed Apr 04, 2012 at 03:40:57 PM PDT

                    [ Parent ]

                    •  He ACTED by GROWING WHEAT (1+ / 0-)
                      Recommended by:
                      Clem Yeobright

                      Inaction would have been the government saying "we want you to grow wheat" and the farmer saying "nuh-uh!" and their saying "we are the government and we demand wheat, you're a farmer so grow us wheat!"

                      That would be regulating inactivity!

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                      by Seneca Doane on Wed Apr 04, 2012 at 03:43:35 PM PDT

                      [ Parent ]

          •  Aha! But Republicans sell sows ears every time! (0+ / 0-)

            So when you say, "I'm saying that you have a sow's ear; advising me to describe it as a silk purse doesn't help anything," that's not actually true.

            With the right "frame" we can sell anything we want, and win with it.

            We have to let go of the idea that "right" makes "might" in political messaging. It never has and never will.

            I'm literally begging you to go look at my diaries on framing and what the experts have to say about it.

            And on the legal front, the "We GOTTA do this" argument is sound, when supported by evidence that the act in question is one "on which the welfare of a nation essentially depends." McCulloch v Maryland, United States v Comstock, Gonzales v Raich.

            The welfare of our nation did not depend on torturing people; a fact borne out by the fact that it didn't even work (not that we needed to test it as a theory to first prove, since evidence of its ineffectiveness is already on record).

            Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

            by jillwklausen on Wed Apr 04, 2012 at 02:33:53 PM PDT

            [ Parent ]

            •  I studied framing with Don Kinder in grad school (1+ / 0-)
              Recommended by:
              Clem Yeobright

              I know what framing is.  Ideally, it is not "lying."

              Again: McCulloch did not involve mandating individual activity; Raich had already actively entered commerce.

              Comstock is interesting.  Here's a synopsis from Oyez.com:

              The Supreme Court held that the Necessary and Proper Clause grants Congress authority sufficient to enact the Adam Walsh Protection and Safety Act. With Justice Stephen G. Breyer writing for the majority, the Court pointed to five considerations that compelled its holding. (1) the Necessary and Proper Clause grants broad authority. (2) The Court recognized that Congress has long delivered mental health care to federal prisoners. (3) Congress had good reason to pass the statute as it has the power to protect nearby communities from the danger prisoners may pose. (4) The Tenth Amendment does not reserve a zone of authority to the states in this context. (5) The Court recognized that the statute was narrow in scope and did not confer on Congress a general police power, which is reserved to the states.

              Justice Anthony M. Kennedy wrote separately, concurring in the judgment. He maintained that authority under the Necessary and Proper Clause is dependent upon the "strength of the chain" from Congressional action and its enumerated power, not on the number of "links in the chain." Justice Samuel A. Alito also wrote separately, concurring in the judgment. He cautioned that the majority opinion should not be construed as granting an unlimited ability by Congress to extend its power.

              Justice Clarence Thomas, joined in part by Justice Antonin G. Scalia, dissented. Justice Thomas argued that the Necessary and Proper Clause empowers Congress only to enact laws that carry into execution one or more enumerated powers. Here, he argued that the Adam Walsh Protection and Safety Act did not carry into execution an enumerated power.

              I don't think that Comstock matters much here; I reprint this because I find the middle paragraph interesting as a guide to what may happen here.

              If Comstock is as strong as you suggest, then it just makes the "slippery slope" argument stronger.  Given this opinion, how would you knock down a "you have to buy a gym membership unless you can prove you exercise" law?

              Also, in Comstock, the countervailing considerations were relatively weak.  ("Narrow in scope," right?  This isn't.)

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Wed Apr 04, 2012 at 03:06:31 PM PDT

              [ Parent ]

              •  I'd knock it down with the "the welfare ... (1+ / 0-)
                Recommended by:
                Ianb007

                of the nation does not essentially depend" on people belonging to a gym. There are myriad ways people can get exercise to remain fit. There are no ways to get surgery in the United States that don't involve the health care market.

                And given that the health care industry is a multi-billion dollar suck on our economy, regulating it - and creating a rule for regulating it - is both necessary and proper.

                Stop the party of Gut & Spend policies that gut our Earned Benefits programs like Social Security and Medicare and spends on deeper and deeper tax breaks for the wealthy elite.

                by jillwklausen on Wed Apr 04, 2012 at 03:44:55 PM PDT

                [ Parent ]

  •  As others have pointed out (3+ / 0-)
    Recommended by:
    cheerio2, Geekesque, Deep Texan

    the limit is already in article one section eight.  It says interstate commerce, not all commerce.  The framers already drew the line for the court.

    •  That's not the limiting principle invoked here (3+ / 0-)
      Recommended by:
      fuzzyguy, Clem Yeobright, wsexson

      and liberals on the Supreme Court already eviscerated that limitation a long time ago, so I don't know why you'd even raise it.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 01:34:06 PM PDT

      [ Parent ]

      •  In what ways has it been eviscerated? (1+ / 0-)
        Recommended by:
        Geekesque
        •  Here's language from *Lopez* that explains: (2+ / 0-)
          Recommended by:
          Clem Yeobright, wsexson

          (citing wikipedia)

          The [Lopez] opinion pointed out that prior decisions had identified three broad categories of activity that Congress may regulate under its commerce power.

          First, Congress may regulate the use of the channels of interstate commerce;

          Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities;

          Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 02:24:33 PM PDT

          [ Parent ]

  •  I feel like there is some sort of clue in the Kelo (1+ / 0-)
    Recommended by:
    Seneca Doane

    as to how this will turn out, not a precedent to be cited, but more of a philosophical direction, a blurring of a distinction between public and private for purposes such as eminent domain and taxation.

    It's an intuition, not a fleshed-out argument, so it's not something I would defend, just an idea that I think is worth exploring.

  •  Aunt Violet, Dowager Countess of Grantham (3+ / 0-)

    A bit off topic... sort of.

    Any Downton Abbey fans?

    This is a supreme compliment to you, Seneca Doane, I hope it is taken that way.

    I absolutely cannot read your diary without my mind drifting into hearing Maggie Smith's character, Aunt Violet, reading it aloud to me.

    I can't explain why and it doesn't make sense. Perhaps it's just a subconscious mental trick that makes reading legal analysis fun to a layman.

    Or... perhaps it is your lines such as...

    (pretend you are sharing tea with dear Aunt Violet):

    Any lawyer worth his or her salt, as you certainly are, could muster a robust parade of horribles out of that rule of law. It should be taken seriously.
    or
    While I sometimes enjoy being a contrarian, I'm not enjoying it this time. My life would be much easier and happier if I agreed with Armando that the other side is simply stupid, unreasonable, and vile.
    or
    Could it force you to buy -- not "consume," which runs into the countervailing liberty of maintaining one's bodily integrity, but just "buy" so that you have it personally available as needed or desired -- broccoli, vitamins, or health club memberships?
    I shudder to think that there are a few unfortunates out there who are unfamiliar with Aunt Violet.

    If you are one of them, take a break and watch this:

    ...the train's got its brakes on and the whistle is screaming.

    by themank on Wed Apr 04, 2012 at 03:54:20 PM PDT

    •  Thank you for the wonderful compliment! (2+ / 0-)
      Recommended by:
      Clem Yeobright, themank

      As a hetero male, I so rarely get compared to Dame Maggie in person!  But on the Internet, no one knows I'm a bulldog.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 05:40:57 PM PDT

      [ Parent ]

      •  Ha! (0+ / 0-)

        That's a hilarious twist I didn't see coming! I should have done more research before commenting.

        I'll read it again, this time while sharing imaginary brandy with Lord Grantham and his dog in front of an imaginary fire.

        Thanks for pointing it out. I love these small 'zen' moments of realization; the floor drops away as preconceived notions are shattered, but no one gets hurt.

        I do see your point in the diary. I read as a caution to be careful what we wish for.

        ...the train's got its brakes on and the whistle is screaming.

        by themank on Thu Apr 05, 2012 at 08:26:55 AM PDT

        [ Parent ]

  •  The "limiting principle" is called the elected (0+ / 0-)

    legislative and executive.

    Nobody will get elected on a platform of mandating broccoli.

    If a Justice is instead looking for a "limiting principle" which empowers him to overrule the elected branches, shame on him.

    (If there were a concern that this lends itself to discrimination against a minority (DAMN them broccoli haters!) I could see the glimmer of an issue here.)

    •  That's not a limiting principle (3+ / 0-)
      Recommended by:
      Clem Yeobright, dRefractor, wsexson

      It has a technical meaning: what limits (or cabins) the scope of the holding?

      When venturing beyond previous applications of the law into new territory -- which I saw we are and Armando and Geekesque say we aren't, although I think that Geek's best argument (death spiral) shows pretty clearly that we are -- it is right and proper to seek a limiting principle.  Imagine that a Republican regime was trying to do something rotten to reproductive rights and you'll appreciate why that is.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 05:44:56 PM PDT

      [ Parent ]

      •  Meh. (0+ / 0-)

        In the rarified air of constitutional scholars it may have that technical meaning. How self-serving - the point of my comment.

        In the real world, a limiting principle is something that prevents things from exceeding limits. It might be a doorstop, or the shortness of a chain, or the number of hours in the day.

        The not-so-special class of Constitutional prohibitions is one of many limiting principles on government overreach - and it is a Nuclear Option that relies on voiding the power of the people to make their own laws.

        Especially when that Constitutional prohibition is tucked away inside the notoriously fuzzy Tenth Amendment, anyone except a law geek would say - "Wait a minute! Doesn't the system work okay without invoking that??"

    •  "No limit" is a perfectly good answer. (0+ / 0-)

      Lots of countries empower their national legislatures to enact anything they see fit; in fact, without being able to devolve police powers on sub-units ('states'), it's hard to imagine that any nation could ham-string its legislature as we have ours.

      I will say you've sort of proven the existence of a personal god with the argument "He did answer my prayer; he said No", haven't you?

      Unfortunately, today's Court is likely to insist on 'limited powers' as still being a principle of the Constitution and not to accept "The sky is the limit" as persuasive.

      Am I right, or am I right? - The Singing Detective

      by Clem Yeobright on Thu Apr 05, 2012 at 05:28:27 AM PDT

      [ Parent ]

  •  No, there is already a principle in the Court's (1+ / 0-)
    Recommended by:
    Seneca Doane

    Commerce Clause jurisprudence. The Court in United States v. Lopez (1995, 5-4 decision) struck down a law prohibiting guns near schools as an invalid exercise of Congress' power to regulate commerce. Justice Rehnquist emphasized the importance of drawing such a limit to maintain a distinction between what is truly national and truly local. The Court in United States v. Morrison (2000, 5-4 decision) struck down a provision of the Violence Against Women Act which gave that gave victims of sex-motivated violence a right to sue in federal court. Justice Rehnquist relied on Lopez, and he emphasized the need to preserve a distinction between national and local authority.

    The ACA regulates a truly national problem. Health care expenditures represent 1/6 of the economy, and the United States spends a higher portion of its GDP on health care than other first-world countries. Health insurance regulation presents an inter-state externality problem that makes it necessary and proper to impose a uniform national scheme of regulation. Any state that addresses this problem will attract free riders, and in effect subsidize the health care of citizens from neighboring states. The ACA does nothing to infringe upon the sovereignty of the states.

    Problems such as gun violence near schools and violence against women fall within the traditional police powers of state and local governments. States are fully competent to regulate on those issues. Moreover, the states are also competent to address truly local issues such as broccoli consumption, health club membership, burial insurance, etc. These matters do not present the same interstate externalities as our dysfunctional health care market.

    •  I've cited Lopez elsewhere here, re intrastate (1+ / 0-)
      Recommended by:
      wsexson

      commerce.  I don't think that "national vs. local" is quite the issue, unless you mean "national vs. state" regarding police powers.

      An argument that went like this could have some bite:

      "Commerce in health insurance should be regulated at the state level, but in this case it can't be, because (unsupported factual assertion here) it will attract free-riders to any state that deals with it well and send that state into a state-specific death spiral.  Therefore the federal government has to step in, in the place of the states, and exercise this police power in their stead."

      It's a decent argument, but I think that the Court may decide that it founders on the fact that about 30 state attorneys general are in one of these very cases opposing this law, right?  (That's from memory; could be wrong.)

      How clearly, if at all, did Verrilli make that specific argument?

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 05:54:09 PM PDT

      [ Parent ]

      •  The argument is made by Katyal in the briefs (1+ / 0-)
        Recommended by:
        Seneca Doane

        but not by Verrilli in the oral arguments.

        The key principle guiding the two Rehnquist opinions in Lopez in Morrison is that Commerce regulations must not obliterate the distinction between what is truly local and truly national. That is (or at least was) the touchstone for interpreting Congress' power, according to the conservatives.

        The broccoli argument and all of its other variations use examples of regulations that are not truly national. These arguments against the mandate make no pretensions of justifying the regulations as national rather than local.

        Instead, they focus on an activity/inactivity distinction that relies on nothing except a gut feeling. The argument assumes without justification that there is some free-standing constitutional principle of economic liberty which forbids Congress from imposing income tax penalties on individuals to address a national problem of interstate commerce. There is no such constitutional principle, unless the Republican judges decide to create one here.

        The Republican argument improperly conflates the issue of state sovereignty with an issue of individual economic liberty. There are two possible grounds for accepting the Republican argument: either individual liberty or state sovereignty.  Once you accept that there is no constitutional guarantee of individual liberty prohibiting the use of penalties to incentivize purchase of health insurance (i.e. that a state could impose this regulation) the question becomes whether this is properly a realm of national or local authority. Clearly, the problem of a dysfunctional health insurance market that threatens to balloon the national debt is not the same type of local problem such as as guns in schools or violence against women.

  •  I don't follow 100% of this, but I'm (5+ / 0-)

    T&Ring because it seems to talk sense.

    It seems like we all want the individual mandate held up now because a) it's become our platform, instead of Bob Dole's platform, b) it's a cornerstone of the ACA, and c) we don't want the ACA overturned.

    But I've never been 100% sold on the individual mandate except as something necessary to make the other provisions -- e.g., not excluding sick people, or allowing lifetime limits -- work financially.

    Ideally I wanted Single Payer; practically, I hoped for a public option.  We got neither.  At least with a public option, one could argue that this is a government program like Social Security that one can't just opt out of -- or am I wrong?

    Anyway, arguing that something that was a third-rate choice is constitutional because it is necessary is not a place I want to be in, and I think you do a good job showing why it's not a terribly tenable position anyway.

    •  Talk about falling through the looking glass (4+ / 0-)

      Agree.

      Democrats are falling over backwards to embrace a Republican model for healthcare.

      There is a lot of Democratic political capital being spent on a Republican plan that many Democrats once opposed. Not to mention the fact that the actual healthcare 'reform' ended up so compromised and watered down - through, well, compromise.

      Now the left is rushing to it's defense.

      The ACA is better than nothing, but the irony of the situation seems lost on most people.

      ...the train's got its brakes on and the whistle is screaming.

      by themank on Wed Apr 04, 2012 at 05:27:09 PM PDT

      [ Parent ]

      •  I agree, and yet (3+ / 0-)
        Recommended by:
        cai, Clem Yeobright, wsexson

        if I thought that the case for constitutionality was clear -- and also that the political case for our supporting its constitutionality was well-expressed, I'd support it.  My sense, though, is that we're in an echo chamber right now, prompting each other to think that anyone who opposes our view must be acting out of pure politics.  I'm not sure that it's true and even if it's true I really doubt that it's going to come out that way.

        Democrats must
        Earn the trust
        Of the 99% --
        That's our intent!

        "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

        by Seneca Doane on Wed Apr 04, 2012 at 05:56:36 PM PDT

        [ Parent ]

        •  Tangentially similar to the birth control quandary (0+ / 0-)

          Not in reference to constitutional argument, but the echo chamber the Republicans put themselves in.

          Arguing against responsiblity? Providing economic disincentives for family planning? Advocating a policy that will raise costs to business and government? All while alienating millions of voters?

          It's a short sided fight for them, and they rushed into it with gusto (and look like idiots).

          ...the train's got its brakes on and the whistle is screaming.

          by themank on Thu Apr 05, 2012 at 08:45:44 AM PDT

          [ Parent ]

  •  The Commerce clause is overused. (0+ / 0-)

    Wickard v. Filburn was wrongly decided.  Commerce action requires two parties.  There was no counterparty to the wheat, therefore there was no commerce to regulate.  I do not buy the "implied counterparty" argument.  The government's power is limited to ensuring that all wheat was in fact consumed, and that none of it was sold.

    PPACA's "Guaranteed issue" clause  is constitutional because there is clearly an underserved market.  The government does have an affirmative power under the "provide for the general welfare" clause to intervene in creating solutions to underserved markets.  See also "redlining" where certain neighborhoods were locked out of mortgage markets by bank collusion.

    The individual mandate would be constitutional under the Social Security argument.

    Two Supreme Court rulings affirmed the constitutionality of the Social Security Act.

        Steward Machine Company v. Davis, 301 U.S, 548[33] (1937) held, in a 5–4 decision, that, given the exigencies of the Great Depression, "[It] is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare". The arguments opposed to the Social Security Act (articulated by justices Butler, McReynolds, and Sutherland in their opinions) were that the social security act went beyond the powers that were granted to the federal government in the Constitution. They argued that, by imposing a tax on employers that could be avoided only by contributing to a state unemployment-compensation fund, the federal government was essentially forcing each state to establish an unemployment-compensation fund that would meet its criteria, and that the federal government had no power to enact such a program.
        Helvering v. Davis, 301 U.S. 619 (1937), decided on the same day as Steward, upheld the program because "The proceeds of both [employee and employer] taxes are to be paid into the Treasury like internal-revenue taxes generally, and are not earmarked in any way". That is, the Social Security Tax was constitutional as a mere exercise of Congress's general taxation powers.

    You need more specific examples.  I do not follow several leaps that you make in this chain.

    -7.75 -4.67

    "Freedom's just another word for nothing left to lose."

    There are no Christians in foxholes.

    by Odysseus on Wed Apr 04, 2012 at 05:56:11 PM PDT

    •  As I said, the Taxation power would be (0+ / 0-)

      perfectly fine here.  It was avoided as a justification at all costs.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 06:02:35 PM PDT

      [ Parent ]

      •  Calling the mandate a penalty rather than (1+ / 0-)
        Recommended by:
        Seneca Doane

        a tax was, without a doubt, a political decision.

        I think, as a constitutional matter, a court should not invalidate a levy on income based on the euphemism Congress uses. For instance, Congress might decide that people dislike paying Social Security taxes, but that people are more pleased with thinking of them as "contributions."

        Suppose that Congress changed the code to say that all Social Security taxes would now be called "mandatory contributions." They make no other substantive changes to the law. The people and the government are in the exact same position no matter what we call it. As judge, would you invalidate the new law on the grounds that Congress does not have the power to mandate contributions into a retirement fund? Or, do you take a more practical approach and say that Congress has not exceeded its taxation powers here.

        If you replace the word penalty with tax, there are no substantive differences here. The relationship between Congress and the individual is unchanged. Congress will require that income be transferred from individuals to the federal treasury, unless a certain condition is met. And under that scenario, the law is unquestionably constitutional.

        Within the limits of the Constitution, it could compel people to purchase health insurance by imposing a tax that is four times as large, and not waive criminal penalties and property liens as methods of enforcement for failure to pay that tax. No court would strike it down. Congress has not exceeded its "powers" in the ordinary sense. It has not expanded the scope of its general authority to use economic coercion and it has not usurped any power of the states. It has only (arguably) used the wrong word.

        How much do you value formalism? As a judge, would you be willing to invalidate a key provision, one that could be fixed without any substantive changes to the law, but only by substituting one word for an equivalent?

        I don't value formalism that heavily. If Congress chooses to call things taxes, levies, penalties, fees, mandatory contributions, personal responsibility charges, whatever, it would not matter to me as long as Congress did not exceed the functional scope of its power.

        •  I agree (0+ / 0-)

          and, as I've said this is exactly what I hope that Kennedy will do.

          The Administration sure hasn't made it easy for him, though.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 09:40:41 PM PDT

          [ Parent ]

      •  Then I think that's where you lose me. (0+ / 0-)

        We both agree that there is A path to constitutionality.

        You note that PPACA did not take that path, yet assert that there is a second path.

        I simply do not understand your second path.

        We all know that failure to exercise (an inactivity of which I am too frequently guilty) leads to worse health.  Worse health means more expenses for everyone else.  That's bad for everyone in the market (aka "everyone.")

        So, given that, why couldn't the government force everyone to purchase health club memberships -- perhaps deeply discounted or free for the indigent -- so that they will be more likely to exercise?

        I think this is irrelevant because there are so many other jamming factors.  Efficiency matters in public policy.  Is a subsidized gym membership the MOST effective path to greater citizen health?  To be a compelling argument, the policy not only has to have positive returns, but it should have no other solution with less cost, fewer moving parts, etc.  "Perfection is achieved not when there is nothing more to add, but nothing more to take away".  Why must you include a second private actor in a role which is clearly a Constitutional government function?

        -7.75 -4.67

        "Freedom's just another word for nothing left to lose."

        There are no Christians in foxholes.

        by Odysseus on Wed Apr 04, 2012 at 07:50:44 PM PDT

        [ Parent ]

        •  You're asking the Court to make the same sort (1+ / 0-)
          Recommended by:
          wsexson

          of policy evaluation with regard to gym memberships that you deny it with regard to the PPACA? [Or do you disagree with Geekesque as to that kind of evaluation?]

          The question is not whether Congress would pass that measure but whether it could.

          Am I right, or am I right? - The Singing Detective

          by Clem Yeobright on Wed Apr 04, 2012 at 08:23:25 PM PDT

          [ Parent ]

          •  Am I? (0+ / 0-)

            I'm not being coy, I truly don't understand your comment.  At all.

            What policy evaluation am I asking for?

            -7.75 -4.67

            "Freedom's just another word for nothing left to lose."

            There are no Christians in foxholes.

            by Odysseus on Wed Apr 04, 2012 at 10:19:47 PM PDT

            [ Parent ]

        •  It doesn't need to be the most effective path (0+ / 0-)

          That's not what the Supreme Court is supposed to decide.  They're just supposed to decide whether it passes constitutional muster.  We unnecessarily (in my opinion) turned a slam dunk into a three-pointer, and now we have a nail-biter.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

          by Seneca Doane on Wed Apr 04, 2012 at 09:43:09 PM PDT

          [ Parent ]

  •  Thanks to the many commenters... (1+ / 0-)
    Recommended by:
    Seneca Doane

    who have made for some exceptionally interesting (and mostly mutually respectful) reading here, and thanks Seneca for bringing it up in this light.

    Having gone through the Constitution word by word several times, and following numerous annual debates regarding SCOTUS cases such as this, I am led to the conclusion that nearly anything the government wants to do can be done politically in the name of one's favored interpretation of the words in the Constitution.

    "General Welfare," "Necessary and Proper," "Regulation," and on and on... Treating the Constitution as some sort of holy tome is about as useful as debating the validity of any religious doctrine -- it's all about the politics, through and through.

    The art of listening is the ability to pay attention to that which is most difficult to hear

    by dRefractor on Wed Apr 04, 2012 at 09:38:47 PM PDT

    •  Right now our chorus is that the only way that (1+ / 0-)
      Recommended by:
      dRefractor

      the Justices could reject the law is by being partisan.  If that's not true, or doesn't seem true to the public, it's going to hurt us.  I think we're being overconfident.

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

      by Seneca Doane on Wed Apr 04, 2012 at 10:18:44 PM PDT

      [ Parent ]

      •  That may be what we say, but I don't think (1+ / 0-)
        Recommended by:
        dRefractor

        that CW is true.

        First, I think there are legitimate arguments for the law to be struck down, in parts or in total. The mandate is an expansion of federal power, and I don't know that the Court will necessarily embrace it.

        Second, I doubt there will be political fallout that will help Democrats. The left doesn't like the law. The Tea Party doesn't like the law. I don't see there being anything to gain by "running against the Supreme Court."

        Third, I doubt it will be a 5-4 ruling. Either way it will be at least a 6-3, blunting issues of partisanship. Either Roberts will join the four "liberal" justices + Kennedy (so it does not appear to be as partisan an issue) or one of the "liberal" justices will join the "conservative" justices + Kennedy (because he or she honestly doesn't agree with the legal reasoning to uphold the mandate).

      •  Whtever the ruling, it will be partisan... (0+ / 0-)

        In who's favor is debatable no matter how they rule. I personally loath the idea of having to buy into a defacto socialized medical system administered by the parasites known as the medical insurance industry. At the same time, I can see why, in the absence of anything better at this moment, mandates serve the purpose of getting rid of the absurd practice of pre-existing condition denial -- so my own partisan (as in issue-partisan) hopes that the SCOTUS keeps the law intact and we will have to eventually confront the fact that private insurance for all makes no financial sense.

        What's really not debatable, IMO, is that regardless of the ruling, it will be defensible within the broad range of possible interpretations of the language of the constitution. Hell, we can't even agree on a common definition of "freedom" of speech, much less the nightmare of the commerce clause!

        The art of listening is the ability to pay attention to that which is most difficult to hear

        by dRefractor on Thu Apr 05, 2012 at 01:11:10 AM PDT

        [ Parent ]

  •  Late to the party (0+ / 0-)

    Intellectually, I do not find your argument valid or particularly interesting frankly. But others may disagree.

    I am wondering  though why you would focus on this concern.

    I wrote a partial response for Sunday.

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