There are some very smart lawyers who are ardent SCOTUS watchers and believe quite earnestly that even the conservatives on the Court today will ultimately vote to uphold the law, relying on reasoning that is largely consistent with Judge Silberman's majority opinion today.
In fact, I just read one scholar's prediction that if the SCOTUS majority is assigned to either Justice Scalia or Justice Kennedy, the law will likely be upheld in the face of a Commerce Clause challenge.
This is pretty much true. No matter the validity of the arguments, there is no way Clarence Thomas and Antonin Scalia vote in favor of this - their positions in the past have often been driven by their political leanings than cons utional originalism.
The court isn't saying congressional passage is evidence of the law's cons utionality. That's because the assertion itself isn't true. The court is saying that congress has the power to limit people's "freedom."
Then why do we even need a cons ution or a judicial branch to interpret it?
Actually, the court is stating that congress has the power and means to address national issues. And when congress addresses those issues, legislation will not automatically be considered uncons utional because it infringes upon people's rights.
That still begs the question of whether any piece of legislation is uncons utional - i.e. it passes any of the tests the court has developed in dealing with laws which restrict/violate people's rights and freedoms.
So you believe in judicial activism in this instance?
You don't want courts largely deferring to Congress, particularly on issues where the Cons ution is essentially silent?
How is interpreting the cons ution judicial activism?
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Cons ution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
The Cons ution enumerates certain powers for the federal government; the Tenth Amendment provides that any powers that are not enumerated in the Cons ution are reserved for the states. Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states.
I simply don't see how the commerce clause can be justifiably used by the federal government to force individuals to buy a commercial product they don't want.
Neither can I.
Can someone please explain it to us.
In general, the debate concerning "judicial activism" centers on complaints that courts are invalidating legislative enactments without sufficient deference to the political branches and their representative roles in our democracy. Thus, when a court invalidates, for instance, a legislative ban on same-sex marriages as a violation of the 14th Amendment, it is labeled (frequently) as having been "activist" in doing so, largely because its textual assessment of the Cons ution is at odds with a majoritarian political view of the legislation's subject. In those cases, interpreting the Cons ution and overriding legislative action is, in fact, decried as activism.
Here, the Court has done the same thing, only it has concluded that its proper role is to defer to legislative prerogative because the text of the Cons ution does not clearly preclude this exercise of Congressional authority. While you certainly have your view of the Commerce Clause, that view is hardly unanimously accepted and continues to be debated by people who have devoted large portions of their professional lives to understanding cons utional law. The fact that there is not a broad consensus on the scope of the Commerce Clause suggests to me that your view is plausible, but it certainly doesn't demonstrate that it is objectively correct in any sense.
That's the odd thing to me about the "judicial activism" canard (which, by the way, I'm not contending to have been something that you in particular have raised) -- those who scream activism claim to want judicial restraint, but when judges do restrain themselves, they somehow are castigated for not having been more overtly activist.
He is basically saying that the argument that Congress cannot limit freedom is not true and then goes on to point out multiple instances that they have done just that.
Was there an application of a standard when addressing this? I don't know nearly enough about federal court cases to know what standards have been applied but it sounds to me like the plaintiffs tried a much too broad approach and suck at litigating.
I always laugh when 'conservative' wads try and get blanket denials of power from the courts. The NFL was doing the same . Its a dumb approach to ask especially amongst the baby boomer demographic to limit their own powers.
they very well may think they're righteous but that doesn't help with these panels when you are trying to win.
don't worry. Bachman, Cain, Romney and Perry will repeal Obamacare
ing politicians and their "campaign promises"
Fair enough. I have read all the arguments and looked at the previous cases and agree that the cons ution was pretty ambiguous on defining commerce, and the many cases decided since then (by courts leaning in various ways) haven't really helped. The defining thread of the commerce claims that have been upheld seems to have been that SOMETHING involved in the conflict had to have moved from one state to the other...like forcing a restaurant in Alabama to desegregate under the commerce clause during the civil rights era... Ollie’s Barbeque, a family-owned restaurant in Birmingham, Alabama because, although most of Ollie’s customers were local, the restaurant served food which had previously crossed state lines. Katzenbach v. McClung, 379 U.S. 274 (1964).
I just don't see where forcing an individual to buy insurance (especially since all insurance is regulated by the states and not the federal government) qualifies.
If the republicans get the senate and presidency you can bet your ass they will repeal it.don't worry. Bachman, Cain, Romney and Perry will repeal Obamacare
ing politicians and their "campaign promises"
Oh, I think the fact that insurance companies in State A sell policies to people in States A, B, C, D, E, F, and G would make the business of health insurance an interstate commerce question.
http://balkin.blogspot.com/2011/01/h...ce-clause.htmlHall's New Article on Commerce Clause Challenges to the ACA
Frank Pasquale
Another federal judge has called the ACA uncons utional. Digby offers some realpolitik. For those interested in the Commerce Clause issue, Mark A. Hall's new article, forthcoming in the University of Pennsylvania Law Review, pinpoints the strongest arguments for and against federal power under the Commerce Clause to mandate the purchase of health insurance. His key points in defense of the law appear below:
1. The "commerce" in question is simply health insurance, and not the non-purchase of insurance as challengers have framed it. Because "regulate" clearly allows both prohibitions and mandates of behavior, mandating purchase is lexically just as valid an application of the clause as is prohibiting purchase or mandating the sale of insurance.
2. Although existing precedent might allow a line to be drawn between economic activity and inactivity, there is no reason in principle or theory why such a line should be drawn in order to preserve state sovereignty. Purchase mandates, after all, are as rare under state law as under federal law.
3. Challengers do not seriously dispute the cons utional validity of the ACA's regulation of insurers or the economic necessity of the mandate in order for that regulation to be effective. In fact, they essentially concede the mandate's necessity by asking to strike the entire law if it is declared invalid. Accordingly, the mandate would pass the tests for cons utional necessity articulated by at least seven of the Justices in the Comstock opinion last year, and might even pass the necessity test embraced by Justices Thomas and Scalia.
4. An important challenge, not yet clearly discussed by court opinions to date, is that the mandate does not, strictly speaking, simply "carry into execution" Congress' other regulatory powers, but is the exercise of a distinct power. However, both modern and historical precedents under the Necessary and Proper Clause are not limited narrowly to merely implementation measures. Both Comstock and a series of decisions under the Postal Power are good examples to the contrary since they authorize independent federal powers that expand the range of purposes and measures permitted by express Congressional powers.
5. There is no coherent basis for declaring a purchase mandate to be cons utionally "improper," and a categorical ban on regulating inactivity would contradict the implicit reasoning underlying several other established precedents -- such as those upholding the draft and the Congressional subpoena power. Also, federal eminent domain allows compelled transactions justified in part by the Necessary and Proper clause's expansion of the commerce power, when applied, for instance, to citizen's refusal to sell land for use in constructing highways, bridges, and canals.
6. Using the 10th Amendment to justify a categorical prohibition of purchase mandates (as Randy Barnett has argued) would be no more convincing than using the 9th or 5th Amendments (substantive due process). Instead, such a move would, for the first time and contrary to precedent, make the 10th a protector of individual liberties rather than just federalism concerns, and would radically enforce an absolute right to economic liberty, regardless of level of legislative justification or judicial scrutiny (see point 9).
7. Slippery slope concerns are no greater here than for any other of a range of expansive federal powers. Instead, the novelty of the mandate subjects it to greater political constraint, and so "parade of horribles" concerns may be even more unrealistic than similar settings where the Court has rejected them.
8. Grounding the mandate in the Necessary and Proper clause helps to confine its precedential effect by emphasizing its necessary role in the ACA's particular regulatory scheme that, in other respects, clearly resides within the core of the conventional commerce power. This essential supportive and interconnected role is not shared by free-standing mandates to purchase American cars or broccoli, for instance.
9. Counteracting imaginary slippery slope concerns about absurd hypothetical laws are the legitimate concerns about insurmountable barriers that a prohibition of purchase mandates would erect. Forbidding Congress from any purchase mandate could cripple necessary efforts, for instance, to require preventive measures in the face of a massive pandemic that threatened tens of millions of lives.
As Hall puts it in the article, "there is little dispute that the ACA’s mandate to obtain health insurance is inextricably intertwined with its other insurance regulations, which indisputably are cons utional."
Thats what they said about SS and medicare. Your bluster is cute though.
Please show me where Republicans ever said they would repeal Social Security and Medicare. your abject ignorance is cute though.
Judge Laurence Silberman, an appointee of President Ronald Reagan wrote ... the court's opinion.
Duh WH...
See where I said he didn't, but may as well of?
All I see is that you have no idea of the politics of anyone involved.
It doesn't matter what anyone says. You see what ever your pea brained biased mind is going to see.
Just for laffs, Bat crazymann weighs in:
Bachmann: Doctors need ‘liability shield so no one can sue them’
Republican presidential candidate Michele Bachmann told an unemployed man who was paying $500 a month for insurance that her administration would help him by making sure doctors who offer free services can’t be sued.
“That’s the failure of President Obama, that he didn’t address the cost issue,” the candidate said during an interview with ABC News. “What I will do is allow Alex to buy any health insurance policy he wants anywhere across America with no minimum mandate.”
She added: “Here’s the other thing I’ll do. For doctors and nurses and clinics and hospitals that want to offer free care to people, we’ll give them a liability shield so that no one can sue them. Because we want to encourage people in the health care industry to offer free or reduced care to people, but in exchange for that, we’ll give them a liability shield.”
At a campaign event in October, the Minnesota Republican suggested that a man with “no teeth” should rely on charity.
“We take care of people who are indigent, people without funds. We do that through charitable or we do that through university programs,” she said.
http://www.rawstory.com/rs/2011/11/0...e+Raw+Story%29
http://www.forbes.com/2009/08/27/med...-bartlett.html
Were you even paying attention in the 1960s and 1970s? This is from Forbes and the first thing a clicked on a "GOP Medicare 1960s" google search.
For s sake your line of thinking is the same rhetoric that wasput out by the GOP in FDRs day.
Romney aligning with Ryans' kill Medicare:
Romney’s Medicaid Proposal Falls In Line With Ryan’s Plan, Beneficiaries Could Face ‘Limited Access To Care’
http://thinkprogress.org/health/2011...ccess-to-care/
And there is no doubt that Repugs, if they win control of Exec + Congress, will try again to kill SS and have pensions handled by the criminal for-profit financial sector.
It's always fascinating to see Wild Cobra show that he has a better working knowledge of federal courts and cons utional law than people who devote their lives to studying those things. I mean, obviously, Laurence Silberman has been a liberal wolf in conservative sheep's wool since he was appointed -- or something.
For instance, he wrote an intermediate court opinion striking down the DC handgun ban in the appellate decision affirmed by the Supreme Court in er.
He wrote the intermediate court opinion concluding that the independent counsel statute threatened the President's Article II powers, a conclusion that Justice Scalia vigorously defended in a dissenting opinion when Silberman's opinion was ultimately overturned.
He's close friends with Clarence Thomas, Cheney, and Donald Rumsfeld.
He's been openly called a partisan ("Yet Silberman’s place at the head of the commission has already raised doubts about its credibility, given that Silberman has often behaved as if his paramount role as a federal judge is to protect Republicans, persecute Democrats and slander anyone who disagrees.")
He's been regarded "historically . . . as one of the stronger conservative voices on the federal appellate bench."
He's not new to being labeled a staunch conservative("He is a judge who came of age at the time when conservatives were responding to the activism of the Supreme Court in the 50’s and 60’s. He is a significant member of the conservative legal world, with membership in the Federalist Society and with a record of service in the Nixon, Ford, and Reagan administrations.")
But, clearly, his conservative bona fides are disputable.
Last edited by FromWayDowntown; 11-08-2011 at 06:05 PM.
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