patrick.net

Man you are determined aren't you. I can claim it's unconstitutional for the Federal Government to regulate my interstate highways, or collect my income tax, or take part of my paycheck and call it Social Security. We can go on at length about the the Interstate Commerce Clause is used to cover.... nearly anything.

I'm from the Deep South. There are plenty of people there who think "the South will rise again boys, save your Confederate money!". Forgive me if I consider people who are still mentally fighting soon 150 years old war to be "not right in the head".

Similarly this Constitutional argument is reaching quite a bit, and steps right over the FACT that people have allowed all kinds of "Constitutional abrogations" but of course THIS is the one that'll get them riled up and we'll have our Boston Tea Party and then boy howdy!

The only people you'll attract with this argument are the Glenn Beck fan club.

LOL, unable to answer the question except with the conclusion that, apparently, because Constitutional abrogations have happened, the argument is moot when you agree with the abrogation? Therefore, this is OK, as is abrogating the 2nd Amendment, but at the same time, you take the Constitution "seriously...." LOL.

Vicente says

Similarly this Constitutional argument is reaching quite a bit, and steps right over the FACT that people have allowed all kinds of “Constitutional abrogations” but of course THIS is the one that’ll get them riled up and we’ll have our Boston Tea Party and then boy howdy!

It seems to me you are saying: "I agree the Constitution is the law of the land, but because so many people ignore it, I guess we should too, because that's the trend." It's kind of obvious what side you would have been on back in the Founders' days.

Without the Constitution, we are left to trusting politicians and their appointed surrogate judges to ‘protect’ us from the obtrusive powers of the central government. The Constitution was designed to LIMIT these powers. When the American people collectively decide the Constitution is no longer a necessary force in limiting centralized power, totalitarianism will soon follow.

Paralithodes says

LOL, unable to answer the question except with the conclusion that, apparently, because Constitutional abrogations have happened, the argument is moot when you agree with the abrogation? Therefore, this is OK, as is abrogating the 2nd Amendment, but at the same time, you take the Constitution “seriously….” LOL.

Great job at pointing out the mental gymnastics required for such convoluted reasoning.

No mental gymnastics required on my end, that's your specialty.

The lack of YEAH CONSTITUTION RULEZ & DOWN WITH OBAMACARE comments from anyone other than you two, should indicate something to you. Of course it doesn't.

I'm the cult of, I'm the cult of, I'm the cult of personality.

Pehaps this post is actually proposing single-payer? After all, there's no doubt that taxes are constitutional. The income tax even has its own amendment. And the govt can obviously spend tax money. So if it's not constitutional to require purchase of insurance, we'll have to go single-payer.

The commerce clause is one of the stretchiest clauses in the constitution. For years GOPers have interpreted this to mean that the DEA can go after people growing their own marijuana for use in their own state. So it's neither interstate nor commerce. Healthcare is far more relevant to interstate commerce since there's usually interstate companies involved. And it's obviously commercial.

SiO2 says

For years GOPers have interpreted this to mean that the DEA can go after people growing their own marijuana for use in their own state

To their credit, Rehnquist, O'Connor, and Thomas didn't join the majority on that one. Probably the only Thomas decision I agree with.

Healthcare is far more relevant to interstate commerce since there’s usually interstate companies involved

I think interstate commerce can be generalized a bit. The interstate highway system's costs are 99.999% intrastate, yet the system as a whole benefits interstate commerce. A federal insurance system would work similarly, to increase labor mobility and level the playing field among rich and poor states.

twelc says

This process was sidestepped, and that may be one reason people feel uneasy about it.

What do you mean sidestepped? The original proposal was originally supposed to pass before the summer recess.

Last I checked the House and Senate are charged with representing the will of the people. The House of Representatives -- note the name -- passed a public option plan last year. It's only the undemocratic senate and its superundemocratic requirement for supermajorities that is hindering passing reform.

twelc says

You could also argue the Constitution was intended to create an environment that allows a slower process of enacting laws, thereby giving bills time to be reviewed/debated, and responded to in a manner that reflected the preference of the “people”, not the will of the few holding power over the country.
This process was sidestepped, and that may be one reason people feel uneasy about it.

These were the arguments of the founders, and many quotes from them can be found to show they intended the process to be slow and diffcult. A major reason they gave us a bicameral legislature, for example, was because of concern that a single body would act too impetuously.

twelc says

Some people have pointed out that Obama campaigned on transparency in the White House, like debating Health Care on C-Span, but clearly that’s not what transpired.

That's rightwing bull. Obama's election promise was that he wasn't going to drop a bill onto the Congress without their input (the mistake the Clinton team made). Obama doesn't have the power to compel the Senate to televise their negotiations. Do you guys even understand the separation of powers?

twelc says

There were closed door meetings that were not bipartisan, and deals designed to get votes that still remain in the healthcare package even to this day.

Welcome to the sausage factory. Democracy does not require bipartisanship when the minority is completely and totally wrong about everything.

"Pushed so hard..." and "not enough time for debate" on an issue which has been polarized by party for over a decade?

Everyone has pretty much picked their team on this issue already and more time and debate won't change anything. More "debate" is just about tying it up in knots hoping it'll go away. The Republicans hope they can kick the can down far enough that they can make it an issue in the next election. They are terrified that if it passes and DOES NOT result in Communism and people standing in bread lines, that they will have a deuce of a time ripping it out later. Passage would over time erode the base of the No Party.

Troy says

Do you guys even understand the separation of powers?

Judging by Obama's lecturing the Supreme Court members at his State of the Union, he either doesn't understand the separation of powers or chooses to ignore it.

twelc says

agree with Eliza, that we need *something*, but it needs to be reviewed/debated, and responded to in a manner that reflected the preference of the “people”, not “fast-tracked”.

Not according to Nancy Pelosi. We need it quick like and she'll tell us what's in the bill after they pass it. LOL

RayAmerica says

Judging by Obama’s lecturing the Supreme Court members at his State of the Union, he either doesn’t understand the separation of powers or chooses to ignore it.

"With all due deference to the separation of powers, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections . . ."

Do you guys have a functioning brain?

RayAmerica says

Uhhhh, the question here is not what the “government requires” but, UNDER PENALTY OF LAW, this legislation FORCES citizens to purchase from a PRIVATE entity a product, in this case health insurance. Please inform us when the federal government has ever done such a thing?

uhhh, this was a clause slipped in by the wonderful heathcare industry lobbyists during the planning process... I really wish you turkeys were as intent on limiting corporate powers as you seemingly are on killing the Democratic gov...

Anyway, is it "Constitutional"? Before you ask a sweeping question like that I'm sure you've done a lot of reading and research as to what actually is defined by the Constitution and have a fairly balanced understanding of what areas it covers and doesn't, right? I suppose you've also contacted a constitutional lawyer for a general opinion or extensively read online blogger/lawyers such as Glenn Greenwald who regularly write about such topics?... Certainly that would be a good starting point so that you don't ask questions that make yourself sound like a dolt, right? So what do they say on the subject?

Also, the Bush/Cheney Gov were planning on pushing through forced retirement saving accounts to replace the Social Security system, where all private earnings that currently go into the SS system would be channeled into the private coffers of investment houses. I bet you were up in arms over that one, right?

RayAmerica says

twelc says

agree with Eliza, that we need *something*, but it needs to be reviewed/debated, and responded to in a manner that reflected the preference of the “people”, not “fast-tracked”.

Not according to Nancy Pelosi. We need it quick like and she’ll tell us what’s in the bill after they pass it. LOL

Huh. Huh. Good one Beavis.

You seriously think that's what she's saying? That nobody understands the bill, but we should pass it anyway?

The main points of what's in the bill are already very well understood by anybody that cares to take the time to read up on it. This had been debated for many months. The current bill that is likely to be voted on is very similar to the Senate version that was passed in December, as has been widely reported.

It's been over two months for #$@*'s sake!!! Why are you pretending that nobody knows what's in the bill?

If you don't like the bill, fine, that's your prerogative, but pretending that Pelosi or anybody else is trying to pass some mystery bill sinks to Beavis and Butthead level of debate. It's your own fault if you supposedly care about this issue but have bothered to acquaint yourself with the proposal.

"uhhh, this was a clause slipped in by the wonderful heathcare industry lobbyists during the planning process… I really wish you turkeys were as intent on limiting corporate powers as you seemingly are on killing the Democratic gov…"

LOL, it must have been the Republicans who allowed this to be inserted in the Democrats' bill, right? Probably right there with making the construction industry the only industry where instead of a 50 employee threshold, it is 5 (as a payment to the trade unions for their support).

kentm says

Also, the Bush/Cheney Gov were planning on pushing through forced retirement saving accounts to replace the Social Security system, where all private earnings that currently go into the SS system would be channeled into the private coffers of investment houses. I bet you were up in arms over that one, right?

If you are going to make a point, at least be honest about it. The plan Bush was pushing was a VOLUNTARY option to allow individuals to invest a portion of their SS retirement set aside in the stock market if they chose to do so. I thought it wasn't a good idea either, but if you are going to make an argument, at least state correctly what the plan was.

kentm says

RayAmerica says
Uhhhh, the question here is not what the “government requires” but, UNDER PENALTY OF LAW, this legislation FORCES citizens to purchase from a PRIVATE entity a product, in this case health insurance. Please inform us when the federal government has ever done such a thing?

kentm says

uhhh, this was a clause slipped in by the wonderful heathcare industry lobbyists during the planning process… I really wish you turkeys were as intent on limiting corporate powers as you seemingly are on killing the Democratic gov…

How exactly was this "slipped in?" You can't be implying that the evil, nasty lobbyists just "slipped" it past the Democrats ... you know ... the pure as the driven snow, watchdog, anti-lobbyist ones that had control of the bill Democrats? You can't be saying that ... or are you? LOL

Troy says

Do you guys have a functioning brain?

Too bad you go through life with a deeply furrowed brow and no sense of humor. With so much to laugh at, why take yourself so seriously?

MarkInSF says

If you don’t like the bill, fine, that’s your prerogative, but pretending that Pelosi or anybody else is trying to pass some mystery bill sinks to Beavis and Butthead level of debate. It’s your own fault if you supposedly care about this issue but have bothered to acquaint yourself with the proposal.

Have you read the bill?

RayAmerica says

MarkInSF says

If you don’t like the bill, fine, that’s your prerogative, but pretending that Pelosi or anybody else is trying to pass some mystery bill sinks to Beavis and Butthead level of debate. It’s your own fault if you supposedly care about this issue but have bothered to acquaint yourself with the proposal.

Have you read the bill?

No. But I have read the summaries by people that HAVE read the bill, and even had input into the language. That's all that matters.

Just like when the US retirement system was being overhauled very few people actually read the bill, but knew the key ideas like the introduction of 401Ks, and that's all that mattered.

You are setting an absurdly high bar for being able to understand a bill. What's important is the principals. Knowing every nitty gritty detail is pointless unless you're in the insurance or health industry and have to live by the new rules.

There are many, many, many eyes on this. That's why you get people raising red flags for things like exemptions for union members in having tax-exempt status for "cadillac" plans taken away. Of course there is some sausage making going on, but that's just the reality of congress.

Have *YOU* bothered to learn about the bill? I find that the most strenuous opponents barely know a thing about it. Just these two pages go a long way:

this is a good place to start

and this article has good info on health exchanges.

MarkInSF says

There are many, many, many eyes on this.

Any idea how many 'many, many, many" would be?

So whats your point???

And if you liberal bird-brains are so against the constitution by your actions (you lie with your words and claim to support the constitution), why is it that the President, all law enforcment and military personnel all take an oath, NOT to defend the country, NOT to defend the people, NOT to defend the government and NOT to defend the land - but to DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES FOREIGN AND DOMESTIC???

My guess is that you hate the constitution because it provides freedom and liberty. I know your kind, you are rights haters and freedom destroyers. Small,bitter people who have some sinister need to control and manipulate others, and then kill babies.

I'm still waiting for someone to show me the section of the constitution that prevents the Federal Government from requiring people to pay a fee if they do not posses health insurance.

I often wonder if you guys have ever actually read the constitution. Your arguments just don't make sense.

Kevin says

I’m still waiting for someone to show me the section of the constitution that prevents the Federal Government from requiring people to pay a fee if they do not posses health insurance.

Actually that's not how the Constitution was supposed to work, if one subscribes to a strict Enumerated Powers reading. The SCOTUS is basically still split 5-4 on this question. Back in 1995 the conservative majority said Congress didn't have the power to ban guns within 1000' of schools.

There are further Constitutional tests of legislation -- rational basis, etc:

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

Anyhoo, in 1968, Justice Harlan wrote:

"There is no general doctrine implied in the Federal Constitution that the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other. . . . [I]t is clear that the Federal Government, when acting within a delegated power, may override countervailing state interests . . . . As long ago as 1925., the Court put to rest the contention that state concerns might constitutionally `outweigh' the importance of an otherwise valid federal statute regulating commerce."

While handguns are rather tenuously connected to commerce, I don't think the conservative majority on the court would care to assert that health care is not a significant part of our economy and therefore outside the Federal sphere of regulation.

Also, even if the commerce clause fails, there's still the General Welfare spending clause.

http://en.wikipedia.org/wiki/United_States_v._Butler

Interestingly, in Butler the court said Congress couldn't tax farmers not to grow stuff since that failed the General Welfare spending test.

The Court's thinking at this time was conflicted so probably is not good jurisprudence, but Roberts' arguments are interesting background:

"Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate,

Page 297 U. S. 66

limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. [Footnote 12] We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."

...but to DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES FOREIGN AND DOMESTIC???

You do know where the "defend the Constitution of the United States, against all enemies, foreign and domestic" clause comes from, right?

It was enacted by the congress during the Civil War in 1862, and was a pledge that one was not against the constitutionally elected government of the United States Most, but not all, versions of the oath since 1862 have had a similar clause.

Kind of ironic that that the wingnuts of today are now saying the constitutional, democratically elected government is actually a domestic enemy. Just today I was reading comments on Mish's blog and came across this:

Ms. Pelosi is a traitor. The fed gov has no lawful right to involve itself in health care. She should be prosecuted for treason.

(Score: 112 by 138 votes)

Treason? And astonishingly most of Mish's readers that care to comment agree. Somehow I suspect that both Honest Abe, and RayAmerica agree also.

And I also suspect they are completely oblivious to the irony of bringing up the "all enemies foreign and domestic" clause of the service oath.

MarkInSF says

Treason? And astonishingly most of Mish’s readers that care to comment agree. Somehow I suspect that both Honest Abe, and RayAmerica agree also.

See my above, LOL. The Supreme Court ruled in 1936 that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution".

Nomograph says

Michael Savage said the exact same thing on his AM talk radio show today. Interesting.

What are you implying? That Michael Savage is in here reading my posts? Interesting.

Troy says

Kevin says

I’m still waiting for someone to show me the section of the constitution that prevents the Federal Government from requiring people to pay a fee if they do not posses health insurance.

Actually that’s not how the Constitution was supposed to work, if one subscribes to a strict Enumerated Powers reading. The SCOTUS is basically still split 5-4 on this question. Back in 1995 the conservative majority said Congress didn’t have the power to ban guns within 1000′ of schools.

That's a very different type of ruling though. Saying that congress can't ban something is not the same as saying that they can't force the uninsured to pay a fine.

Kevin says

Troy says

Kevin says

I’m still waiting for someone to show me the section of the constitution that prevents the Federal Government from requiring people to pay a fee if they do not posses health insurance.

Actually that’s not how the Constitution was supposed to work, if one subscribes to a strict Enumerated Powers reading. The SCOTUS is basically still split 5-4 on this question. Back in 1995 the conservative majority said Congress didn’t have the power to ban guns within 1000′ of schools.

That’s a very different type of ruling though. Saying that congress can’t ban something is not the same as saying that they can’t force the uninsured to pay a fine.

That gets right to Enumerated Powers. Both the General Welfare and Commerce clauses are used to justify outlays, but this whole penalty thing for not carrying coverage is a novel extension of government power.

In 1937 the people lost their attempt to opt out of social security and federal UE, but the government had to jump through some odd hoops to get these 5-4 decisions, like arguing that FICA taxes were not earmarked pension programs.

All you're arguing is that the constitution is flawed (because it has loopholes), not that these things are unconstitutional.

Update: at least one Federal judge gets it:

http://www.reuters.com/article/idUSTRE69D5CO20101014

This just in, "Senators get death bonuses, taxpayers get death taxes". Thats right, the Senate voted to pay Senator Byrds family a $200,000 death bonus. Yet another blatant display of cronyism by the political class. Them vs. us, the servant has become the master.

I kind of resent the fact that the government FORCES (there's that word again) forces everyone to name the IRS as one of your heirs. Death should not be a reason that the government uses to raid peoples after tax assets. Death shouldn't be a taxable event. And the libs accuse normal people of being greedy...hahaha, what a joke.

Abe is only happy when he's angry.

Honest Abe says

This just in, “Senators get death bonuses, taxpayers get death taxes”. Thats right, the Senate voted to pay Senator Byrds family a $200,000 death bonus. Yet another blatant display of cronyism by the political class. Them vs. us, the servant has become the master.
I kind of resent the fact that the government FORCES (there’s that word again) forces everyone to name the IRS as one of your heirs. Death should not be a reason that the government uses to raid peoples after tax assets. Death shouldn’t be a taxable event. And the libs accuse normal people of being greedy…hahaha, what a joke.

Why do you resent it? You will never have over a million dollars to leave to your heirs.

Oh no, some people have slightly smaller silver spoons when they die.

My kids are only going to get two or three million when I die rather than four or five million. Their lives will be so difficult.