The 11th Circuit has struck down the individual mandate of ObamaCare: [PDF]
We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.
Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.
Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce. [fn omitted]
The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.
This is the case that involves 26 States and it appears they affirmed the lower court in some parts but also stated the individual mandate can be cut out of the act.
On to the Supreme Court
See author page
Who needs funding approval for the styrofaom temple OblameO
IMHO, there is a good chance that the Supreme Court will not bother to hear it and let the Appeals Court ruling stand. Rumor has it they are all a bit tired of the stuff Obama and his pets have been generating. If that happens I’ll go into a corner and go, “BAWHAHAHHAHAAHHA.”
It’s good to see that the majority of the justices on this Appeals Court, unlike the last one, actually read and understand the Constitution although the way the law was written it should have been struck down in its entirety.
Pity numb-nuts “Cry Baby” didn’t hold out on raising the debt-ceiling in return for the elimination of Obamacare!
But don’t worry, the mandate will be ruled uncon by the USSC, but that won’t stop this Admin, nor the Republican Congress from continuing the scam.
Decision says that severability is in effect even though it was not written into the bill. Which is to say, striking down one part of the bill does not negate the entire bill – even though it should. What on earth does that mean?
Non-severability was a major weakness in ObamaCare law.
In one way, it looks like the courts are ”fixing” that big problem for Obama, piece-by-piece.
What a shame!
They should have ruled that because one part was unconstitutional, it all had to go.
After all, non-severability.
Edited to add:
There’s a real gem in that PDF.
Ya think?
Without mandatory participation, people who pay for private insurance will continue to subsidize people who don’t. Healthcare providers simply shift losses from the uninsured to those who pay for insurance by raising their service fees; insurers then raise premium rates to cover the higher fees and to maintain their own profit margins. Taxpayer costs to provide care for the uninsured also increase as service fees rise. Together, taxpayers and people who pay for insurance wind up subsidizing both the uninsured and private insurance company profits.
A great system.
@another vet:
Well, two out of three anyway. My jaw dropped when I read what Judge Stanley Marcus wrote in dissenting from the majority opinion:
So if Congress usurps power that they were never granted in Article 1, Section 8, that’s just fine by Judge Marcus as long as it’s “generally accepted”. Accepted by whom? There’s no better definition of a “living constitution” than what Marcus just wrote.
Can anyone find his photo on the net?
Well, Greg, a little reducto ad absurdum regarding your utility argument: If everybody had to wear a mandatory GPS tracker that continuously broadcast location data to a central permanent repository, a lot of crimes that go unsolved now would be solved in the future. A lot of lost children would be found. Society would definitely benefit. Should we make everybody wear a mandatory GPS tracker?
Anyway – besides the groundbreaking unconstitutional nature of the mandate, there are the other intrinsically undesirable qualities of the gigantic, byzantine bill — it will cost far more than was claimed, it will inhibit economic growth, it will diminish the availiability of healthcare for most people in order to benefit a few, and a majority of the public did not want it when it was passed and does not want it now. It fixes nothing and grows the Federal government enormously.
@Wm T Sherman:
Watch out, Wm T Sherman, Greg might just say, ”Double Plus Good!”
LOL!
Michelle Obama is looking at that individual mandate and thinking in terms of limiting our food choices …..for our own good.
Breakfast #1 Oatmeal, 6 oz OJ, 6 oz Milk.
Breakfast #2 Cold Cereal, dehydrated fruit for cereal, 6 oz Milk.
Lunch #1 Tuna sandwich, Tomato Soup, 6 oz mixed fruit juice.
Lunch #2 Peanut butter & jam sandwich (Just jam if allergic!) Veggie soup, carrot sticks, Lemonade.
And so on.
Why let the rabble eat the Kobe Beef, the Swordfish steak, the Rainbow Trout, the saffron rice, the pate, the crab the lobster and so on?
PS, tonight I am actually having Kobe beef!
@John Cooper: He was appointed as a judge by Reagan and named to the Appeals Court by Clinton. It wasn’t long ago he was questioning its Constitutionality.
http://johnpaulus.com/blog/2011/06/08/federal-judges-question-health-care-constitutionality/
Here’s what I liked about the ruling:
Read more:
Now, I don’t like the decision, and I hope that SCOTUS will find the law constitutional, but I loved the judiciary appearing to rule on their individual opinions of the relevant legal principles (i.e. honestly calling balls and strikes) and not having it be political. There was a Dem appointee who voted against the law and a GOP appointee who voted in favor of the law.
Regrettably, I think that SCOTUS is more political than are some of the appeals courts.
P.S. Here’s what Wikipedia says about Marcus:
– Larry Weisenthal/Huntington Beach, CA
@openid.aol.com/runnswim: If SCOTUS rules this to be Constitutional, it will grant Congress and the President the power to make us do whatever they want and essentially render the Constitution null and void. I think Curt was the one who summed it up in a nutshell, if the Commerce Clause was intended to give the pols in DC the right to do whatever they want, there was no purpose in writing the rest of the Constitution.
Before wishing to give our pols in DC that type of unrestricted power, remember that those powers will be given to all, which means if we have a Congress and a President who are as far to the right as this POTUS and the last Congress are/were to the left, they can force laws down our throat that you may oppose. All they have to do is cite the Commerce Clause and Obamacare as the precedent. I personally do not want to put that type of power in the hands of our politicians be they left wingers or right wingers.
Constitutionality was questionable from the very beginning – when evidence of critical elements of the plan became public. However, what is most telling here, is that Obama has been slapped with “unconstitutionality” by this appeals court – when the world had been convinced by his handlers and the MSM that he was a Constitution expert.
With this kind of expertise roaming the halls of universities, no wonder the quality of the more recent crops of graduates have been questionable. And the only thing this President supposedly knew anything about, well . . . . turns out . . . . maybe not so much. This just adds to the evidence that voters were sold a bag of air who can’t be too much bothered.
@another vet (#13):
You’ve got a point. Well stated.
I guess I look at it a little differently. This is not a case where failure to purchase insurance makes you wind up in prison. The individual has a choice. Either buy insurance or pay a fine. The fine is paid to the federal government. It is really the same thing as a tax, only the Dems didn’t want to call it a tax. But the situation is basically this, except for semantics. The Dems instituted a special tax to pay for health care for the uninsured. Individuals get a tax credit in the amount of the tax hike for purchasing insurance. If they don’t purchase insurance, they don’t get the tax credit.
It’s really just semantics. It’s got nothing to do with the government forcing anyone to buy anything. You could make the same argument about electric cars. If you buy an electric car, you get a tax credit. If you don’t buy an electric car, you don’t get the credit. According to Curt’s argument, the government is “forcing” people to buy electric cars. No, it isn’t. It’s simply making a tax break available to people who buy the electric car (or, in the case of corporations, exploring for oil). Congress does this sort of thing all the time. Picking winners and losers through the use of their power to tax and grant tax breaks.
The only difference with the health care “mandate” is semantics. The Dems could have said: “We are raising everyone’s taxes to pay for health care for the uninsured, but you can get a tax break in the amount of the tax increase if you purchase health insurance and are therefore not uninsured.”
It would be the exact same thing; exact same effect. The only difference is semantics.
– Larry Weisenthal/Huntington Beach, CA
@openid.aol.com/runnswimI just have a hard time giving anyone a blank check on anything especially when it comes to our Constitutional rights. Without getting into how I feel about abortion, what if it was decided that a woman had to pay a fine or tax of $20,000 in order to have an abortion but if she decides not to have an abortion, she’ll get a “tax break” and won’t have to pay the 20 grand. After all, if purchasing insurance is interstate commerce and abortion is covered in insurance those services then are “interstate commerce”. Or if we all had to buy a Chevy Volt and get a tax break or pay a fine or a tax if we didn’t. It’s interstate commerce as well. The individual mandate is a very slippery slope. Where does it end?
@another vet (#16):
You are giving an unreasonably extreme example.
Congress has very broad powers to compel citizens to do lots of things. Congress has the power to reinstitute the military draft, for example. There is nothing to stop Congress from bringing back the draft and making the term of service 20 years, rather than the previously customary 2 years. Congress could mandate that all motor vehicles sold in the USA must get 100 miles per gallon or must run on 100% ethanol or must have emergency parachutes, to deploy in the event of catastrophic brake failure. Congress could take away my house tomorrow, declaring eminent domain, and use my land for a marble monument to President George W Bush. All of this is perfectly Constitutional.
At a certain point, we simply have to rely on the system of checks, balances, freedom of the press, and the ballot box. They are, in the end, our best Constitutional protections against Congressional overreaching.
– Larry Weisenthal/Huntington Beach, CA
Without the mandate, the funding side of Obamacare falls apart. I also consider the fact that the Democrats locked the Republicans completely out of the discussion and creation of the bill should make it unconstitutional, as it disenfranchised those voters who were represented by Republicans. I also think that it is scandalous that the Democrat Speaker Pelosi declared that “You have to vote on it to find out what’s in it.” Every single representative, Democrat and Republican, should have taken umbrage at such insanity. Who in their right mind would ever sign a contract, agree to a treaty, or vote for a law that they have never even read?
@Ditto:
Well then, we’ll just have to raise taxes on the rich then, won’t we? /sarc
@openid.aol.com/runnswim:
Except the 13th Amendment, of course.
@openid.aol.com/runnswim: You said:
No, the penalty for not purchasing health care and the tax credit for an electric automobile are not the same and you know it.
The Commerce Clause was put in to allow Congress to regulate commerce, not create it.
@openid.aol.com/runnswim: I wanted to give extreme examples just to illustrate the point of how extreme this could get by giving Congress and the President unchecked powers. If SCOTUS upholds the law when it’s quite evident the individual mandate is unconstitutional, then our system of checks and balances will have failed. We will have a situation where one party in control of our legislative and executive branches of government can pass whatever type of law they want and have it rubber stamped by a judicial branch who think its their job is to change the Constitution through court rulings instead of amendments which is the way it’s supposed to be done. For me this case has implications that far exceed the healthcare issue. Perhaps you’re not as suspicious or un-trusting of our pols as I am.
To the Gang of Three (20,21,22) and John Galt:
Firstly the 13th Amendment has been found explicitly in court decisions not to apply to the military draft. Thus my example of hypothetically allowing for extended periods of forced military service was correct.
With regard to the Constitutional authority of Congress to give citizens the choice between purchasing health insurance or paying a fine (which is — effectively — the exact same thing as levying a tax and then providing a tax credit to encourage certain behavior), this goes to the arguments of Judge Marcus (#8) and legal precedent (stare decisis). It’s really an argument about strict versus loose constructionism. It’s an argument that the founding fathers had among themselves.
During Washington’s Presidency, there was a dispute between strict constructionists Madison and Jefferson and loose constructionist Hamilton (Hamilton having been the most prolific contributor to the Federalist Papers). Washington asked Madison and Jefferson to write legal briefs defending strict constructionism. He then asked Hamilton to critique those briefs. The Father of our Country then sided with Hamilton.
The following is an excerpt of the best, concise explanation of this absolutely pivotal event in Constitutional jurisprudence.
– Larry Weisenthal/Huntington Beach, CA
@openid.aol.com/runnswim:
There is a problem with the use of that example and in trying to relate it to Obamacare, Larry.
In the example above, of whether or not to empower, or create, a central bank, the whole argument evolved from a given, enumerated power, of the the federal government.
Article I, Section 8;
The argument you cite wasn’t whether the federal government had the power to do what they wished to task a central bank with doing, but rather, about whether or not the creation of a central bank was an allowable power to accomplish those things.
Obamacare is quite different, Larry. The argument isn’t about whether or not a power is available to accomplish an enumerated power, but rather, if that enumerated power even exists for them to apply the “necessary and proper” clause to.
Now, you apply a label to me of being a “Madison” constitutional thinker, while you fancy yourself a “Hamilton” supporter. However, in the case above, one cannot argue that Madison was on the opposing side of Hamilton, considering Madison was merely tasked with the development of a veto opinion by Washington.
Concerning Madison, and the Federalist Papers, he wrote, in no. 41, of the argument against using the “general welfare” phrase found in Article I, Section 8, Line 1;
In short, Madison argues that the “general welfare” phrase is merely an allusion to the list of specific, enumerated powers, that follows Line 1. Even Hamilton did not argue against that idea.
And, concerning the use of the “commerce” clause, Madison writes in Federalist Paper no. 42;
In short, the “commerce” clause was intended only as an instrument to deny the States from imposing unfair duties, taxes, and levies against the commercial interests of the other States. It was never intended as an instrument of regulation by the federal government over any product, from “cradle to grave”. The federal government has continued to overstep it’s bounds concerning this clause. As well, no argument of “it’s been done before so it should be allowed” is reconcilable against the original intent of any clause, phrase, section, etc. found within the Constitution.
Larry, you have taken an example of a worthwhile argument, the central bank, and wrongly applied the argument for it to that of the “individual mandate” found within Obamacare. And, on top of that, you wish to claim that the government has the power to compel citizens to engage in commerce that they otherwise might not engage in. That argument, while not only being in opposition to what is found within the Constitution, and the original intent as spelled out within the Federalist Papers, but would lead to many consequences, both foreseen and unforeseen, of essentially giving the federal government tyrannical powers. For example, what would limit the government from requiring then, that each taxpayer be forced to purchase a domestic-originated automobile every 5 years or so, as a way of increasing the “competition” of a domestic product against imports? Or, what would limit government from requiring that all homeowners purchase a solar power array, of a power output minimum mandated by the government, as a way of regulating the commerce of the power industry?
There are many more examples one could think of, essentially limited only by the imagination and those products people choose to purchase, or not to purchase. The can of worms that would be opened up are virtually limitless, but would lead to the very type of tyrannical government the founders had no intention of giving us.
Without meaning to be Larry, you are being a tyranny supporter. You are allowing your need to feel good about yourself through your pseudo-compassion to ignore all reason and eventually allow a dictatorship to arise.
@John Cooper
I don’t think Rich Wheeler has that much money.
@Larry
I call b*llsh*t on that fabrication by Aaron Nathaniel Coleman, as such an interpretation makes a Supreme Court unable to rule on the constitutionality of laws passed by the Congress and signed by the President. The purpose of the SCOTUS is not to enforce state observance of the eminent power of a tyranny, but to determine the Constitutionality legality of laws and legal actions by governments State AND Federal.
Putting forth a college student’s paper does not impress me of your arguments. Nor do college papers have any legal bearing or importance in the courts. It is not rare for “educated” college students to write papers with some conclusions that are just plain wrong. Aaron Nathaniel Coleman cites only enough cherry picked portions of Madison, Jefferson and Hamilton (especially very brief segments of Hamilton’s writings,) to attempt to support his argument.
Cumberland College is a Kentucky liberal arts university. The Upsilonian is a fraternity operated student mouthpiece publication. The student staff decides what goes in their publications, and I doubt seriously that they are experienced enough editors to review student opinion papers for factual accuracy or properly reasoned arguments.
Nice try Larry
@John (#24):
It’s obvious that Madison agrees with you. Madison wrote a lot of the Federalist Papers. So, of course, when you quote Madison’s Federalist Papers writings, they will support your view. But Madison himself wrote that the Federalist Papers were not the blueprint for US government and that the Constitution was the final word. As I noted, Hamilton contributed equally or more than Madison to the Federalist papers. Hamilton agrees with me.
In the singular debate over the National Bank, conservatives don’t like the way it turned out, so they try to narrow its scope to that of the issue of the National Bank, itself, and argue that Washington’s decision should not be generalized. But it is 100% clear that the parties involved (Madison, Jefferson, Hamilton, and Washington) were not arguing and considering issues narrowly limited to the National Bank, but were, rather, arguing and considering the general issue of strict versus loose interpretation of the Constitution. I urge you to read the entire text of my link, from a scholarly essay entitled:
It’s a short essay, which encapsulates the very essence of of a dispute continuing to this very day.
The arguments given by Madison, Jefferson, and Hamilton, and considered (and decided) by Washington, were not simply the narrow issue of the National Bank. In fact, all the arguments you (John) gave in defense of the National Bank were not the central arguments made by Madison, Jefferson, and Hamilton and considered and decided by Washington. The arguments and the decision were broadly based, going to the central issue of strict versus loose (or “implied”) constructionism.
You (John) have consistently represented your own personal views as if they were clearly correct and opposing views are clearly wrong. Were that the case, there wouldn’t have been any dispute, going all the way back to George Washington and continuing right up to the present. But it’s a dispute which was always present and always will be present. The whole reason for the importance of legal precedent (stare decisis) is that, in the absence of precedent. there will be wild swings in Constitutional jurisprudence. One court will swing to the extreme end of Madisonianism and the next court will swing to an extreme Hamiltonian point of view, with unsettling effect on American law.
Over a long period of time (two centuries) there has been a gradual shift to the Hamiltonian point of view, in the way that the powers of both Congress and the President have been expanded. We have evolved to a very centralized government. I, personally, am very troubled by the Imperial Presidency, which has strong recent Republican support. I am much less troubled by actions of Congress, as Congress has a lot more in the way of checks and balances and much less power to rule by decree than the Presidency.
You concluded:
My response:
It’s a false analogy. Medicaid currently costs the Federal government $275 billion per year. A hefty portion of this is health care for the uninsured. The individual mandate is a Republican idea, founded on conservative principles. Require people to take personal responsibility and not be a drain on society. Republicans were behind this idea, when they could use it as a weapon against a Democratic alternative. Now, Republicans are opposed to their own idea, because it was co-opted by the Democrats. It’s a political issue, but the Republicans now claim to be against something which they once favored, and cloak their current, self-contradictory arguments in Constitutional principles not raised, back in the day when the individual mandate was the conservative idea.
For a brilliant, conservative defense of the individual mandate, I can’t come up with a better reference than a brilliant treatise by Robert Moffit (of the Heritage Foundation), circa 1994 (back when the individual mandate was the sensible conservative alternative to “socialistic” HillaryCare).
How core values do change, with the shifting of political winds.
Brings to mind a famous quote: “He was for it, before he was against it.”
– Larry Weisenthal/Huntington Beach, CA
@Ditto: You are using the “you quoted Wikipedia” argument. I quoted the paper in question because it offered a very nice, clear, short summary of the central issues. Rather than pointing to factual inaccuracies or logical errors or offering a contradicting reference, you simply say, oh, that’s just from a college paper.
I’m at work right now. I’ll try to dig for a reference which meets your editorial standards, in the future, when I have time. It’s an issue which isn’t going away, any time soon.
P.S. Here’s the very first thing which popped up on Google. It’s not from Stanford, but it’s a start. I’m sure I’ll have no problem at all backing up the assertions in the comment which you rejected, solely on the grounds of whom I quoted.
http://www.shmoop.com/legislative-branch/strict-constructionism-broad-constructionism.html
– Larry Weisenthal/Huntington Beach, CA
@openid.aol.com/runnswim: A couple of good books you may enjoy or for that matter anyone else interested in a similar situation in our history that pitted two interpretations of the Constitution against each other: “The Great Triumvirate”, by Merrill D. Peterson and “The Union at Risk”, by Richard E. Ellis. The first encompasses a greater period of time in our history focusing on Clay, Calhoun, and Webster and eventually gets around to Andrew Jackson and the Nullification Crisis of 1832. The second deals more specifically with Jackson and the Nullification Crisis which is probably more applicable to what we are debating about. There are parallels. Both historians deal in facts and they don’t try to persuade the reader that one side was right and the other was wrong. If I had to pick one to recommend it would be Ellis.
@Another Vet (#30): Thanks! I’ll look for Ellis and download it to my iPad, if it’s not too expensive. – LW/HB
@openid.aol.com/runnswim:
First of all, I don’t even know johngalt, anticsrocks, or another vet, so to call us a “gang” tells us more about the way you think about others than the three of us.
Secondly, I was wondering if you ran your medical practice according to liberal court decisions rather than your understanding of the English language and the judgment of your own mind. What do the words “involuntary” and “servitude” mean in your world? Also, if you have the time, tell us what color your sky is, too.
@John Cooper. The “gang” reference was a shout out/tribute to “the gang of six.” No disrespect intended. Truly.
With regard to involuntary servitude, the 13th Amendment, and the military draft, here’s a quote from wikipedia:
No, I didn’t go looking for a treatise from the Stanford Law Review. Feel free to bash me, if you must, for quoting Wikipedia, as an alternative to actually arguing that Wiki got it wrong by quoting a contradictory source.
I don’t understand your comment about my medical practice. I don’t run my practice on the basis of liberal court decisions or conservative court decisions, but on the basis of objective evidence from the medical literature and my own, personal experience. Court decisions enter into my practice only with respect to the laws which all citizens are compelled to observe.
Sky in Huntington Beach is currently clear blue, as of 14:50 GMT -7, as it usually is, this time of day. Some wispy low clouds.
– Larry Weisenthal/Huntington Beach CA
@openid.aol.com/runnswim: You said:
No it is not. A tax credit is an incentive to partake in an action. The fine is for NOT purchasing health care, or in other words NOT partaking in an action.
Opposite ends of the spectrum, but nice liberal try there, Larry. This is really an easy concept to grasp, so I am surprised you are having trouble with this. Unless of course, you are being intellectually dishonest.
@antics:
There’s no ultimate difference at all between raising everyone’s taxes to pay for health care for the uninsured and then giving a tax credit to people who buy insurance for themselves (and are therefore not uninsured) versus giving people a choice — buy health insurance or pay a tax. The only difference between a “fine” paid to the government and a tax is a semantic difference. There’s ample precedent: e.g. during the Civil War, draft eligible citizens were given the choice between joining the army or paying a $300 fine.
I was simply addressing the (frankly hysterical) charge that the individual mandate was somehow a slippery slope to totalitarianism. I know that you guys won’t accept my arguments, but why not read what the Heritage Foundation said about the individual mandate, circa 1994, when the mandate was the great conservative alternative to HillaryCare.
– Larry Weisenthal/Huntington Beach, CA
@openid.aol.com/runnswim: Larry, now I know you are just being intellectually dishonest and I have lost a lot of respect for you on this.
There is no way that you can equate a tax break incentive to a penalty and still be honest about said comparison.
And as for the Heritage Foundation and the individual mandate argument, quit beating that dead horse, would you? That has been discussed and dismissed ad nausea here on FA. Just because it was an idea that was discussed by the HF at one time, does not mean it is a position they still defend.
JFK believed in bombing the Berlin Wall at one time, does that mean it was the platform of the entire Democratic Party? No.
You said:
So you have no problem giving your government the power to tell you what product you have to purchase? Tell me Larry, what is the limit on that power? Where does it stop? What products are “on the table,” and which ones are not? Once you give up that freedom to choose what you want and do not want to purchase, you are giving up an awful large chunk of personal liberty.
If you let the government tell you what insurance to purchase, then since they are looking out for your well being, why can they not tell you which foods to buy? Which drinks to buy? I mean after all, keeping the citizenry healthy is going to be cheaper on the government once they start dispensing health care.
It looks as if you want to be “right” about this and in order to do so you are dismissing logic.
Shame on you.
@openid.aol.com/runnswim:
Sorry, Larry, but my own humbleness concerning my intellect does not allow me to agree with that statement. On the contrary, I agree with Madison. I also agree with much of what Hamilton himself has written.
And I never attributed to the Federalist Papers a standing higher than the Constitution, Larry. However, in order to understand the Constitution there is no better place to go than for the positive arguments in favor of it, especially as one of the principal authors of the Constitution is also one of the principal authors of the Federalist Papers.
And still, you attempt to misrepresent my assertions, Larry. I have given the point from Madison himself, regarding the “general welfare” phrase within the first line of Article I, Section 8. From an originalist’s point of view, that is the point of origin. And in that, he very clearly states that the first line is nothing more than the introductory sentence leading into the enumerated powers of Congress. That being the case, nothing within that first line is in any way meant to extend any power to Congress.
But, you still wish to argue as if that doesn’t matter. And, what’s more, despite your assertion being that the argument over the formation of a “National Bank” is a much broader argument over implied powers as given to Congress in the “necessary and proper” clause, that the “necessary and proper” clause is specifically linked to the enumerated powers listed under Article I, Section 8. You might be surprised to find that I agree that certain unenumerated powers that Congress has are entirely within the bounds of the Constitution. However, linking a power derived under the “necessary and proper” clause to a “power” that was never meant to be, is unConstitutional.
If you are talking about the “implied” powers that Hamilton suggests, then you are correct, and I have never argued to the contrary. What I have argued is that those “implied” powers, as suggested coming from the “necessary and proper” clause, are only Constitutional if they are derived from a specific, enumerated power under Article I, Section 8. I have also argued that the “general welfare” phrase is not an enumeration of a power. I have also argued that the “commerce clause” has been misapplied for over a hundred years starting with the advent of progressive politics.
No, it’s an entirely fair analogy. It relates to the idea from Obamacare that Congress has the power to force, or compel, citizens to engage in commerce. It’s because you dispute my assertion that Congress does not have that power under the Constitution that you believe it’s false.
I don’t care which party’s idea it is, Larry, and I’ve stated to you before that I’d like to believe that I would be just as against the idea if it was, say, GOPcare instead of Obamacare. It’s the principle of the thing, Larry, and whoever came up with the idea is irrelevant. As well, I dispute the assertion that the idea for the individual mandate was founded upon conservative principles. Not all GOP pols are conservative, Larry. That is merely your assertion.
Your memory must have very selective editing for you to discount the actions of Clinton separate from and in contrast to Congressional intent and Constitutional limitations on Executive powers.
Now, even after reading your link to the “conservative” argument for the individual mandate, I still disagree with it, and consider it a violation of Constitutional principles. I find it an express violation of my personal freedom to choose in what ways and industry that I will engage in commerce. To force, or compel, a person to engage in commerce, regardless of whether they do so now or not negates individual freedom concerning their own health.
It is very clear that you support a far reaching, limitless power that Congress can tap into at any time. My guess is that if that power is tapped into by the Republicans, in opposition to what you may favor for an issue to be addressed, that you would be crying foul.
This isn’t an issue of democrat vs. republican, Larry. This is an issue of Constitutional conservatism favoring original intent over the ever expanding powers that progressives wish to attribute to Congress and the government.
@johngalt: You said:
Well said, sir!
@openid.aol.com/runnswim: Judge Hull, a Democrat wrote this about Obamacare and specifically the individual mandate which you favor so heartily, Larry:
So johngalt is correct when he says this isn’t a Democrat vs. Republican thing.
Pretty good (and civil I might add) debate.
I declare another vet the winner because of this:
From Larry:
Yep, and these things would be overturned by the next congress if the people did not approve. The last poll I saw was in June, and around 57% of Americans want Obamacare repealed. As more of the plan is revealed, more people dislike it.
Plus, it seems Joe Wilson was right when he said Obama lied:
And of course, every democrat donor in the nation is getting a waiver. The plan is so good, people can’t wait to get out of it. And of course if all these waivers are eventually going to bring about an equal protection arguement.
@Aqua: That’s the first time I’ve won anything in awhile. However, I will give the winnings to Curt since he was the one who first made the comment in reference to the last Appeal’s Court ruling when they said it was Constitutional. Unlike BHO, I don’t want to accept credit for other people’s work. Much obliged however.