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Mike Lee Suggests FEMA, Federal Poverty And Food Safety Programs Are All Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 19-01-2011

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Last week, ThinkProgress highlighted a lecture by Sen. Mike Lee (R-UT) where he claimed that federal child labor laws violate the Constitution. Under Lee’s vision of the Constitution, basic labor protections such as child labor laws, the minimum wage, and bans on race and gender discrimination all must be “done by state legislators, not by Members of Congress.” Yesterday, in an interview with Utah public radio host Doug Fabrizio, Lee doubled down on this call for a return to failed constitutional vision that spawned the Great Depression, suggesting that even victims of Katrina-like disasters cannot constitutionally receive aid from the federal government:

LEE: The listener identifies an issue with flood and disaster relief—should that be a federal prerogative or is that a state power? I think a compelling point can be made that’s one thing that states historically have focused on…and I think that’s one area where we ought to focus—one of many areas where we ought to focus — on getting that power back to the states, keeping that money in the states to begin with.

FABRIZIO: But could Louisiana, for example, have dealt with Katrina? That would have absolutely broken the bank. Should the federal government, in an ideal way, should the federal government have been involved in that at all?

LEE: Well, look, they were, and I generally make a practice of not unnecessarily and futility going back a few years and saying we shouldn’t have done that because the fact is that we did. But looking forward…states will prepare differently if they understand that it’s their responsibility rather than that of the federal government.

Nor are disaster victims the only people Lee would leave out in the cold. Earlier in the same interview, Lee also claims that all federal anti-poverty and food safety programs also violate the Constitution:

QUESTION: Are you saying that if the government would have stayed out of it, the country could have worked out the issues that are being dealt with by these programs, like poverty, like food safety…?

LEE: I’ve never said that isn’t the role of government. What I’ve said is it’s not necessarily the role of the federal government. I think it’s important to ask the question, not just “should government do this? What is the proper role of government?” But “which government are you talking about?”

QUESTION: You said the framers intended state lawmakers deal with that, not the federal law?

LEE: Absolutely.

Listen:

Of course, Lee’s bizarre ideas call into question whether he has actually even read the Constitution. As ThinkProgress has explained, the Constitution gives Congress broad authority to regulate interstate commerce and to raise and spend money to benefit the “general welfare.” These two powers easily enable Congress to regulate the national food market and to provide a basic safety net to the poor and the unfortunate, regardless of what Lee may claim.

For the folks at home who are keeping track, this means that Lee has now suggested that child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, and even Medicare and Social Security violate the Constitution. Like Joe Miller before him, it turns out that there’s only three things Mike Lee likes in a sentence: a noun, a verb, and “unconstitutional.”

ThinkProgress

Sheila Jackson Lee: Repealing ObamaCare is unconstitutional

Posted by admin | Posted in The Capitol | Posted on 18-01-2011

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Okay.


Via Philip Klein, I can’t decide whether she’s serious or whether this is part of the Democrats’ new kitchen-sink approach to “messaging” about ObamaCare. She might be calculating that even an argument as inane as this one is worth making in order to counter the GOP’s claims that O-Care is unconstitutional. If you’re battling over [...]

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TENTHER: Sen. Mike Lee (R-UT) Says Child Labor Laws Are Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 17-01-2011

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Newly elected GOP Sen. Mike Lee (UT) says that federal child labor laws are unconstitutional because as per the Tenth Amendment, only laws expressly laid out in the Constitution are legal. Lee is part of the new class of “states rights” Congress members intent on overturning all federal legislation not mentioned in the Constitution.

Joe. My. God.

Senator Claims U.S. Child Labor Laws Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 14-01-2011

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Children working in factories, picking crops and hauling lumber on construction sites is a vision Mike Lee, the Republican senator from Utah, apparently wants to make a reality again in the United States. In a lecture on his YouTube channel, Lee explains in great detail why he believes U.S. child labor laws are unconstitutional.

In Lee’s view, the federal government doesn’t have authority to enact federal minimum wage laws, civil rights laws or to provide Medicare and Social Security.

Lee’s diatribe shows just how determined he and his ilk are to fight the gains workers have made. And we must be as determined to stop them, AFL-CIO Executive Vice President Arlene Holt Baker said. Speaking yesterday to the federation’s annual King Day celebration, she said:

We must protect Social Security and Medicare, and we need jobs. We must put our people back to work, to build an economy built on shared, broad-based prosperity.

 And there is only one way we can prevail-and that is together.  We can only succeed if we are “greater than 1.”  We can only succeed if we harness the strength of our numbers. 

Lee is one of the  “tenthers”—conservatives who say federal laws and rules like the minimum wage, Medicare, Social Security, unemployment insurance, the Department of Education and a laundry list of other federal laws and programs are unconstitutional.

They argue that if a federal power is not specifically spelled out in the Constitution, the government doesn’t have it, according to their view of the 10th amendment.

 As Ian Millhiser points out on Think Progress:

Lee’s call for a return to failed constitutional vision that spawned the Great Depression is obviously wrong. The Constitution gives Congress the power “[t]o regulate commerce…among the several states,” and to “make all Laws which shall be necessary and proper for carrying into Execution” this power to regulate commerce. Even ultraconservative Justice Antonin Scalia agrees that these powers give Congress broad authority to regulate “economic activity” such as hiring and firing.

 Check out Millhiser’s column and Lee’s video here.

AFL-CIO NOW BLOG

Sen. Mike Lee Calls Child Labor Laws Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 14-01-2011

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Last week, Sen. Mike Lee (R-UT) posted a lecture on his YouTube channel where he explains in great detail his views on the Constitution. As part of the lecture, which is essentially a lengthy defense of his radical tenther interpretation of the Constitution, Lee claims that federal child labor laws are unconstitutional:

Congress decided it wanted to prohibit [child labor], so it passed a law—no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt. In that case, the Supreme Court acknowledged something very interesting — that, as reprehensible as child labor is, and as much as it ought to be abandoned — that’s something that has to be done by state legislators, not by Members of Congress. [...]

This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what.

Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.

Watch it:

Lee’s call for a return to failed constitutional vision that spawned the Great Depression is obviously wrong. The Constitution gives Congress the power “[t]o regulate commerce…among the several states,” and to “make all Laws which shall be necessary and proper for carrying into Execution” this power to regulate commerce. Even ultraconservative Justice Antonin Scalia agrees that these powers give Congress broad authority to regulate “economic activity” such as hiring and firing. Which explains why the Supreme Court unanimously overruled Hammer v. Daggenhardt in a 1941 decision called United States v. Darby.

Moreover, Lee is simply wrong to claim that child labor magically disappeared after the Supreme Court rendered Congress powerless to prevent it. The reason why exploitative child labor has largely disappeared is because Congress placed very strict limits on child labor when it enacted the Fair Labor Standards Act of 1938, and the constitutional cloud over this law was removed three years later when the Court overruled Lee’s pet decision.

Child labor laws are also only one of many essential protections that would evaporate in Mike Lee’s America. The same legal theory Lee uses to impugn child labor laws applies equally to the federal minimum wage and the ban on whites-only lunch counters. And Lee doesn’t even stop there. In a subsequent section of the lecture, Lee attacks President Franklin Roosevelt for calling for the federal government to provide “a decent retirement plan” and “health care” because “the Constitution doesn’t give Congress any of those powers.” Watch it:

So Lee wouldn’t just remove the most basic protections against child sweatshops, he would also eliminate Social Security and Medicare.

ThinkProgress

When Is “Undersight” Unconstitutional?

Posted by admin | Posted in The Capitol | Posted on 08-01-2011

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Crosspost from Freakonomics:

If oversight is when a superior has the right to disapprove of an underling’s decision, what is “undersight”?

It’s my term for when an underling has the right to disapprove of a superior’s decision. It’s not surprising to see principal-agent contracts with oversight provisions, but in two recent statutes the lame duck Congress has arguably imposed undersight provisions on the President acting as our commander-in-chief:

  1. A major defense authorization bill, which “both chambers passed on the last day of Congress’s lame-duck session” included a “provision [that] forbids the transfer of any detainee to another country unless Defense Secretary Robert M. Gates signs off on the safety of doing so.”
  2. The ‘‘Don’t Ask, Don’t Tell Repeal Act of 2010’’ only becomes effective, inter alia, 60 days after the President “transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating [that] the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

These acts are constitutionally troubling because they undermine civilian control of the military. It might be permissible for Congress to delegate a purely ministerial function to an underlying. For example, it might be permissible for Congress to condition an appropriation on a non-discretionary accounting (such as when the “Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 suspended DOD affirmative action in any fiscal year directly following a fiscal year in which DOD certified that it awarded at least 5% of its contract dollars to small disadvantaged businesses”). But it strikes me as impermissible for Congress to give a non-civilian underling veto power of military policy. And to be clear, our military leaders are constitutional underlings to the President because of the commander-in-chief clause.

These recent undersight provisions remind me of the wrong-headed reconstruction amendment to the Army Appropriation Act, which required Andrew Johnsonto transmit all orders to military commanders through General of the ArmyUlysees S. Grant. One way to avoid the constitutional difficulty is take the “commander” in “commander-in-chief” more seriously. These three underling provisions on policy would not be troubling if the President could simply order his underling to make the requisite statutory certification. But the intent of Congress in the GITMO, DADT and reconstruction examples seem to be to insert an underling as an independent decision maker. It’s not surprising that Obama’s lawyers are debating whether to issue a signing statement “asserting that his executive powers would allow him to bypass the restrictions.” One can make a principled distinction between a President resisting a Congressional ban on torture and a President resisting a veto from a constitutional underling.

Balkinization

King: Babies In Garbage Cans Prove Health Reform Is Unconstitutional (VIDEO)

Posted by admin | Posted in The Capitol | Posted on 06-01-2011

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Rep. Steve King (R-IA), master of the pithy C-SPAN clip, made an original argument today for why health care reform is unconstitutional during an emergency House rules meeting about the GOP’s upcoming vote to repeal it.

After Rep. Jared Polis (D-CO) said that health insurance counts as interstate commerce and therefore falls under the Congress’s constitutional powers, King argued that there are people who never even use health care — and therefore a law requiring them to buy insurance is unconstitutional.

“There have always been and likely will always be, babies that were born, lived and died within the jurisdictions of the individual states,” he said, “who never cross a state line, access no health care and therefore do not impact interstate commerce. Therefore, to compel someone who fits that category to buy an insurance policy” does not fit under the interstate commerce clause.

“You find the baby that was not born in a hospital or with a midwife, who did not receive inoculations,” Polis said. “You find that baby and identify them and I’ll be happy to have that discussion.”

“I hate to tell you but they show up in garbage cans around this country, sir,” he said.

Polis was more or less speechless.

That’s Rep. Alcee Hastings (D-FL) shaking his head in the background.

(H/T Media Matters)







TPMMuckraker

Filibuster ‘Reform’ May Be Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 05-01-2011

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The left has been messaging for over a year that the Senate should abolish the filibuster.  They now are desperate to seize complete control of one chamber of the federal legislature so they can play defense against Speaker of the House John Boehner’s (R-OH) conservative agenda and lock Senate Republicans out of the legislative process.  Now is the time and the liberals are ready to pull the trigger of what some call the “Nuclear Option” to restrict the rights of individual members of the Senate to engage in extended debate.

Liberals in the Senate are ready for high noon today as the moment for them to start a procedural fight to chip away at the filibuster.  They hope this ploy will result in a successful power grab.  Liberal Senators and allies on the left have been preparing for months for this moment so they can strong arm through the Senate a change in the rules that will grant them complete control over the Senate’s agenda.

Expect liberals in the Senate to offer a resolution to lower the threshold to shut off debate.  They plan on arguing that the Senate is not a continuing body, notwithstanding the fact that the Senate’s rules state otherwise.  They are intent on forcing through this change to the rules with only a simple majority of Senators.  This ploy is a violation of the constitutionally authorized rules of the Senate and may be an unconstitutional power grab.

I wrote almost a year ago on Big Government that the filibuster is the friend of conservatives.

If you hate big government, you should love the Senate filibuster.  The filibuster serves the good government purposes of slowing legislation.

This allows citizens to understand and participate in the legislative process, provides scrutiny for complicated legislation and slows the process to confirm nominees.  The left absolutely hates the filibuster, because the filibuster prevents liberal Democrats from steamrolling moderate Democrats and Republicans when trying to pass legislation or confirming extremist judges with minimal debate.  A veteran Senate staffer tells Big Government that “the filibuster is a tool to slow down and make people really consider things. For those that believe in freedom and limited government the less the Congress does the better.”  Of course the left’s goal is to exterminate the filibuster from the Senate rules by setting the table for Senate Majority Leader Harry Reid to argue that a filibuster is unconstitutional, then for Vice President Biden to order that the rule be ignored.

Liberals are going to use a procedural tactic called the “Nuclear Option,” also known as the “Constitutional Option.”  This option is merely a theory that Senators can change the rules of the Senate at the beginning of a new Congress.  They claim that the Senate functions under anarchy until the Senate operates under the old rules.  This theory allows  for a simple majority of Senators to expunge the filibuster rule from the Senate’s rule book — even though the explicit rules of the Senate mandate that they need 67 votes to shut off debate on any rules change.  This power grab by the left may be unconstitutional, because it tosses aside constitutionally authorized Senate rules.  A strong case can be made that the actions of liberals in the Senate is an unconstitutional power grab.

The Constitution empowers the House and Senate to establish rules of procedure.  Article I, Section 5 of the Constitution states that “each house may determine the rule of its proceedings.”  This provision in the Constitution empowers the Senate to make rules governing debate.

The Senate in 1917 established the cloture rule requiring a 2/3rds vote of all Senators present and voting to shut down debate after years of not having a means to shut down debate.  Senate Rule 22 today states “invoking cloture on a proposal to amend the Senate’s standing rules requires the support of two-thirds of the Senators present and voting.”  The clear letter of the Senate’s rules mandate a supermajority vote to stop debate on a change to the Senate’s rules.

The Senate’s rules further state that the Senate is a continuing body.  According to Marty Gold and Dimple Gupta’s Harvard Law Review article titled “The Constitutional Option to Change Senate Rules and Procedures:  Majoritarianism Means to Over Come the Filibuster,” Senate Majority Leader Lydon B. Johnson’s (D-TX) proposed a compromise in 1959 to make it easier to shut down debate and affirm that the Senate is a continuing body.  Senator LBJ’s proposed compromise was the following:

Rule XXII would be amended to reduce the required vote for cloture to “two-thirds of the Senators present and voting,” and, in order to assuage the worries of Senators who opposed the constitutional option, a new clause would be added to the Senate Standing Rules holding, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”

The Senate is set up as a continuing body.  Our Founders set up the Senate with staggered 6 year terms and only 1/3rd of the Senate is up for election every two years.  Our Founders set up the Senate to be a far different body than the House of Representatives.  The length of terms and mandate that every state, regardless of size, gets two votes is evidence that our Founders wanted a Senate to be far different from the House.

The facts are that the constitution authorizes the Senate’s rules.  The Senate’s rules confirm that the Senate is a continuing body and that it takes a 2/3rds vote to shut off debate on a rules change.

The so called “Constitutional Option” is arguably unconstitutional.


Big Government

The Durbin Amendment Is Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 29-12-2010

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(Todd Zywicki)

So says Richard Epstein in today’s Washington Times. Richard argues that by depriving debit card issuers of a reasonable rate of return the Durbin Amendment capping debit card fees, as interpreted by the Federal Reserve, is unconstitutional.

In related news, Chase announced (even before the Fed announced its unexpectedly onerous price caps) that in response to the Durbin Amendment in Feb. 2011 it would start phasing out its rewards debit cards, imposing new fees on checking accounts, and scaling back on the availability of free checking.  In light of the Fed’s announcement that debit fees will be slashed much more than expected, consumers can expect to feel an even greater pinch with new bank fees and fewer bank services than was originally predicted.




The Volokh Conspiracy

Rep. Randy Forbes Decries Smithsonian Art Museum Funding As Unconstitutional

Posted by admin | Posted in The Capitol | Posted on 24-12-2010

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In October, the Smithsonian National Portrait Gallery unveiled a new exhibit, “Hide/Seek: Difference and Desire in American Portraiture”, which explored gender and sexual identity in American culture. Four weeks later, the conservative CNS News released a report complaining about some of the artwork, including a video exhibit that showed ants on top of an image of Jesus, meant to symbolize the suffering of an AIDS victim. Soon thereafter, the right-wing backlash began.

As ThinkProgress detailed last month, conservatives were up in arms against what the Catholic League called an “assault on the sensibilities of Christians.” Many on the right called for a congressional probe into the museum’s funding, including Rep. Jack Kingston (R-GA) and incoming House Majority Leader Eric Cantor (R-VA). The day after CNS News’s report, the Smithsonian decided to remove the video in question.

Rep. Randy Forbes (R-VA) fired another volley this week in the war against the Smithsonian. During an interview on the right-wing radio program Wallbuilders Live!, Forbes and host Rick Green agreed that funding for the Smithsonian National Portrait Gallery was unconstitutional because, as they allege, the Constitution “only gives Congress the power to protect an artist’s creation, not to actually fund it”:

GREEN: We’ve been talking about how Article I, Section 8 only gives Congress the power to protect an artist’s creation, not to actually fund it. So Congressman Forbes, what do you think?

FORBES: I think that’s a great point. As you know, the Founders envisioned us just creating an environment where we were empowering artists to use their talents and their creations, and we were having individuals reach out and raise those funds on their own and not involve the government in doing that. We’ve come so far away from the original intent about constitutional mandate and I think it’s time we get back to it.

GREEN: Yeah, seems like if you did it that way where Congress was protecting their rights in terms of being able to do it and in terms of protecting their proprietary creations, but then the market would decide whether or not the money would there to do something. I can’t imagine folks like this - this trash that gets out there - being funded by the market. Maybe it would be, but at least it wouldn’t be my tax dollars, you know what I mean?

FORBES: Well I think you’re right Rick. We see that over and over again when we get these left-wing radio shows and these left-wing TV programs, and you just look at the viewing audience and where it is. They’re always subsidized, if they’re not subsidized by the federal government, it’s somebody who has that kind of agenda. And every single time, their ratings are very, very low and their viewing audience is very, very low. So as you mentioned, in the marketplace of ideas, this is just not the kind of thing that would be very acceptable, and I think you wouldn’t see it coming in a private sector venue.

Listen here:

Though Forbes is up in arms about federal funding being used to pay the Smithsonian’s budget, ThinkProgress’s Tanya Somanader makes an important point: “While 55 percent of the Smithsonian budget is federally funded, those funds are only used to pay for the buildings, the care of collections exhibited at Smithsonian venues, and museum staff. Museum exhibits are funded solely by private donations, including ‘Hide/Seek.’”

Still, Forbes is simply adding his voice to the growing chorus of conservatives — including Ginni Thomas, Sen. Tom Coburn (R-OK), and failed Senate nominees Joe Miller, Sharron Angle, Ken Buck, and John Raese — who simply declare any policy they disagree with “unconstitutional.”

ThinkProgress

Are Lame Duck Sessions of Congress Unconstitutional?

Posted by admin | Posted in The Capitol | Posted on 19-12-2010

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Schlepping.
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What If The Mandate Is Ruled Unconstitutional?

Posted by admin | Posted in The Capitol | Posted on 18-12-2010

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Austin Frakt’s guess: Short of a unified government, I doubt Congress will be able to patch the law. That means it will become a state problem. I expect many, even most, states will do something to fill the hole left…





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What If The Mandate Is Ruled Unconstitutional? Ctd

Posted by admin | Posted in The Capitol | Posted on 17-12-2010

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Avik Roy’s proposal: It is my view that the Swiss system could be adapted for American purposes by replacing the mandate with a German-style limited enrollment period, as Paul Starr has advocated at The American Prospect. The limited enrollment approach…





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The Daily Dish | By Andrew Sullivan

Is Obamacare Really Unconstitutional? Ctd

Posted by admin | Posted in The Capitol | Posted on 14-12-2010

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Jeffrey Toobin thinks politics matter more than the substance of yesterday's ruling:

Personally, I found Hudson’s opinion unpersuasive. His invocations of Comstock were particularly misleading, in my view. But I found Hudson’s use of Comstock illustrative of a larger point. Judges, to a great extent, can do what they want. They can manipulate precedents to reach the conclusions they want to reach. In high-profile cases, the decisions are more about politics than law. If Hudson can cite Comstock for precisely the opposite of what that decision was clearly intended to do, all bets are off. The fate of health-care reform will rest not with the skill of the lawyers who will argue it—or in the words of the cases on which they will rely—but on the preferences of the nine Justices who will decide the case.





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The Daily Dish | By Andrew Sullivan

Is Obamacare Really Unconstitutional?

Posted by admin | Posted in The Capitol | Posted on 14-12-2010

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A somewhat surprising blogospheric chorus of: meh. Reihan:

The individual mandate is a rhetorical device. To pay for a new health entitlement, we need to impose a tax. But to mask the cost of the new health entitlement, the president and his allies chose a more complex structure. That’s really all there is to it. The federal government can very easily offer everyone health insurance, and it can offer a choice of private insurance providers through an exchange. This is roughly what happens in a number of advanced market democracies. Yet if the individual mandate is found unconstitutional, the federal government will have to do this through a more transparent and coherent vehicle.

Chait:

Hudson conceded that striking down the individual mandate would not invalidate the whole Patient Protection and Affordable Care Act. If you strike the individual mandate but leave the rest, you have a system that could easily be patched up with a better mechanism to avoid free-riding. The real loser here is the health insurance lobby. Health insurers would have preferred to avoid any health care reform at all. But the health insurance lobby’s second-highest priority would be a working system with an individual mandate. A world in which they cannot discriminate against sick people but in which healthy people can avoid buying insurance until they’re sick is a nightmare.

Megan:

… a year ago, proponents of the law were dismissing legal charges as crackpottery with no chance of succeeding.  Now, while it doesn’t look precisely likely that the law will be overturned in the courts, there does seem to be at least a small chance it will happen.  As it should be in my opinion, even though I’m aware that this could have a disastrous impact on the insurance markets.  If the law stands, what does that mean for American liberty?  Or to put it another way:  what do supporters of the law think the government can’t force you to buy, and how do you reconcile the answer to that question with the rights the government is now asserting?

Josh:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Richard Epstein:

The decision of Judge Henry Hudson in Virginia v. Sebelius is no bird of passage that will easily be pushed aside as the case winds its way up to its inevitable disposition in the United States Supreme Court. The United States gave the case its best shot, and it is not likely that it will come up with a new set of arguments that will strengthen its hand in subsequent litigation.

Ilya Somin:

The weakest part of Judge Hudson’s opinion is his analysis of the government’s Necessary and Proper Clause argument, which merely claims that the Necessary and Proper Clause only authorizes legislation that is linked to an enumerated power, but does not really explain why the mandate is not. In my view, a far better answer to the government’s argument is that the mandate isn’t “proper” even if it is “necessary” and that it runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock. I discussed both points in some detail in the amicus brief (pp. 25–30), and in a shorter form here

 

Robert Alt:

Although the severability question is far from clear, we think the best evidence of what Congress and the President would have done is found in the statements of its leading sponsors (including Sen. Baucus) and President Obama that the individual mandate was absolutely essential to the economic scheme in the rest of the act.  In short, they would not have enacted the law without the individual mandate, and thus, the entire law should be struck down.

Don Taylor:

The practical definition of what is constitutional these days is whatever Anthony Kennedy thinks. This is the clearest, simplest treatment of the constitutional issue I have read, and makes me think the individual mandate will be upheld eventually (as does private convos with a couple of constitutional lawyers). …

No country has gotten anywhere near a universal coverage system without some type of a mandate, or a mix of mandates, and neither will we. Medicare, for example, is a type of mandate because you must pay payroll taxes, and then you are eligible for insurance.





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The Daily Dish | By Andrew Sullivan