A number of constitutional scholars have weighed in on Judge Roger Vinson’s ruling that struck down the entire Affordable Care Act, mostly finding it flawed if not absurd. Yale Law School Professor Akhil Reed Amar writes about the ruling in the Los Angeles Times, and presents a number of reasons why Vinson doesn’t know the Constitution from refrigerator mold.
The first argument is that, as a lower court judge, Vinson has no authority to completely ignore Supreme Court precedents. This same argument can be found in many other dissections of Vinson’s opinion, including one at Volokh Conspiracy, by Orin Kerr —
Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way.
Back to Professor Amar. The central issue, Amar says, is how much power the Constitution gives to Congress. Amar cites the landmark case McCulloch vs. Maryland (1819):
In McCulloch, when states’ rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress’ basic mission. Though the words “federal bank” nowhere appear in the Constitution’s text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce. Other words not in the Constitution include “air force,” “NASA,” “Social Security,” “Peace Corps” and “paper money,” but all these things are constitutional under the logic of McCulloch. Obamacare is no different.
I’d rather he didn’t call the Affordable Care Act “Obamacare,” but I’ll overlook that for now. Then Professor Amar looks at the Commerce Clause —
Obamacare regulates a healthcare industry that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state. When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.
Even were it conceded that a particular piece of Obamacare regulates a wholly intrastate matter, that piece is OK so long as it is a cog within a truly interstate regulatory regime. In 2005, the court allowed Congress to criminalize private possession of homegrown marijuana plants because, even if these plants did not themselves cross state lines, a blanket prohibition was part of a legal dragnet regulating a genuinely interstate black market in drugs.
I liked this part —
Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.
Amar says that, strictly speaking, the ACA does not mandate the purchase of insurance. It just says that you either purchase insurance or pay a tax. Apparently Vinson found that this tax does not fall under the powers given to Congress to levy taxes, a argument that Amar finds bizarre.
Finally, after that and some other good points, Amar adds —
In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.
Naturally, the rightie blogosphere, the Cato Institute, and rightie media generally are going nuts over that last paragraph and tearing it to shreds, while mostly ignoring the rest of the column. They are basically taking it as an insult. One guy wrote
Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.
BTW, the same guy who wrote the sentence above crafted a rebuttal to Amar that consists entirely of false analogies, straw men, and ignoring Amar’s arguments. The rebuttal is anal beyond words and reveals the writer has no grasp whatsoever of health care issues and how the Affordable Care Act addresses them. I don’t have time to take the whole thing apart, but for example —
“There is nothing improper in the means that Obamacare deploys,†he writes. “Laws may properly regulate both actions and inactions…” Of course, that part’s true, but it’s beside the point. Congress doesn’t have a general power to write laws; it only has power to “regulate commerce…among the several states.†If the founders had intended to give Congress a general power to write laws, they would have. But what they chose to do instead was to give Congress specific, limited powers. The question here is whether a law that forces people to engage in commerce qualifies as a “regulation of commerce.†Amar merely dodges that question.
Amar doesn’t dodge the question of the commerce clause at all, as you can see by the parts I have already excerpted above.
Get this —
“…and in any event,†he continues, “Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.â€
Think about that: breathing is an action. Does Amar believe that Congress can put conditions on your choice to breathe?! There’s a word for governments that require every citizen to do something as a condition of continuing to breathe. The word is not “freeâ€!
Did I say this guy was anal beyond words? I mean, how stupid do you have to be to have so totally missed the point? The point, of course, is that the individual mandate addresses the issue of cost shifting caused by uninsured people who can’t pay for their own care. The costs are shifted to taxpayers and to the insured — hospitals pad their bills to make up for uncompensated cost, and that cost is passed on to the people who pay padded insurance premiums. But it’s an extremely inefficient and costly way to provide health care. Seeing to it that most people are insured should (the CBO says) bend the curve on health care costs. And this is central to what the Affordable Care Act is trying to do — keep skyrocketing health care costs from bleeding our economy dry. And this makes it a perfectly reasonable thing to be regulated under the commerce clause, since it impacts the entire American economy and the commerce thereof.
But Mr. Anality continues, saying that “Nor is Amar’s reference to emergency rooms relevant. Obamacare has nothing whatsoever to do with this.” Like most righties, he can’t see how things interconnect. The Affordable Care Act probably doesn’t directly address the mandate for federally funded emergency rooms to at least stabilize everyone who comes through the door, even if they can’t pay. But one of the obvious effects of getting more people insured is to relieve the stress on emergency rooms and get people care in a more cost-effective way.
Update: Some of you will appreciate this — “Health Care Challenge in Florida: Blotting Out the Necessary & Proper Clause” by Simon Lazarus at the American Constitution Society.
The first sentence of section 8, which defines the powers of Congess lists the power to “provide of the common defense and general welfare”. The last section adds, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”.
Like I said before they usually skip the “necessary and proper” clause. Somehow only the power to “regulate commerce among the several states” seeems t make it through the filter.
Man, I was so eager to beat Cundgulag to the first comment, I didn’t proofread. That should be “for the common defense”.
If the founders had intended to give Congress a general power to write laws, they would have.
My first reaction: “Wait… what?” My second: what goatherd said.
My third: alternate title for this post? Rogering the Constitution.
Yeah, how dare Congress write laws. I think I kind of know what the guy meant, but he didn’t explain himself, and he does pretty much ignore the “necessary and proper” clause.
A few years back, I watched an interview with the CEO of one of the larger health insurance companies, in which the CEO explained that it would be too expensive for his company, or any other single company, to accept people with preexisting conditions, because they would all then gravitate to that company and bankrupt it. He went on to explain that if ALL health insurance companies accepted everyone with preexisting conditions, “then of course we could insure everyone.”
Only mention this because it’s pretty close to how things actually shook out. In exchange for having to accept everyone, insurance companies are rewarded with millions more enrollees–many of them healthy–to balance the books. Can’t see them being any too happy about the possibility of losing that many folks and still being required to accept people with preexisting conditions. Or, for that matter, having the whole thing overturned by the SCOTUS. Methinks the Roberts’ Court will get the message from Corporate headquarters to find in favor of “Obamacare.”.
goatherd,
LOL!
Congrat’s – you won!
The only reason I think I’m first a lot is that I have maha as my homepage, and I’m unemployed and have a lot of free time on my hands when I’m not looking for work on my PC.
And like joan, I too 2nd what goatherd wrote.
But this is the funniest line to me:
“Congress doesn’t have a general power to write laws…”
Then who the “f” does? Yeah, I know, God!
If you don’t think Congress has the power to write laws then what are you doing writing about something you obviously know nothing about as your job? If it’s not to write laws, then please tell me ‘wtf’ you think Congress’s purpose is, you yutz?
Jesus, you would be a much more productive member of our society if you quit writing and started working at changing oil in a Jiffy Lube, and leave real thinking to people who are far more capable of it. Try a government retraining program. Oh, right, I forgot, that’s Social/Communo/Fascism. Congress outta pass a law! Oh yeah, THEY CAN’T!!! HAHAHAHAHAHA!!!!
“Yeah, how dare Congress write laws. I think I kind of know what the guy meant, but he didn’t explain himself, and he does pretty much ignore the “necessary and proper†clause.”
That’s because all these arguments start from the premise “That Kenyan n!%%@r beat us and now he will pay” and work backward from that.
I still hope they can quietly strangle Vinson’s tortured decision in some court below the Supremes. I have NO confidence in the Roberts court.
Muldoon – I’m a mailman, and that makes me a federal employee on the bottom rung. However I select my insurance (BCBS) from the same menu of options as Congress. All the major insurance carriers agree to the conditions of the Federal Employee Health Benefit Plan.
[b]This includes accepting preexisting medical conditions![/b]
There’s no question they can – they ARE!
What Mr. Anality certainly does not realise is that law school professors graduate from law school with a much higher GPA than federal judges do.
Most law school profs graduated number one in their law school class.
Tom B. Alas, the 4th Circuit is the most conservative circuit in the country, often to the right of the Supreme Court. If this trainwreck of an opinion is going to be reversed, the Supreme Court will have to do it.
Prof. Amar’s lucid explanation of the Commerce Clause is a joy to read.
The reason the mandate is not considered a tax is because the bill was crafted in a manner to avoid being considered a tax. This was to help sell the bill to the American people. I remember Pres telling Stephanopolous the mandate is not a tax.
Judge Vinson did not ignore the Necessary and Proper Clause. He did not argue that Congress can’t make laws generally. They just have to do so within constitutional constraints.
He interprets the N & P Clause differently from you, and relies on caselaw in doing so. It appears you interpret that Clause to be a blanket law-making ability, above and beyond the enumerated powers. Judge Vinson’s treatment of the N & P Clause begins on page 56 of his opinion. He analyzes the use of N & P for the mandate with the recent case of US v. Comstock’s 5 considerations. He concludes that it fails at least 2 considerations. He points out that Comstock is not a complete reversal of prior Sup Ct precedents.
“The Supreme Court has repeatedly held, and the emphasized text makes clear, that the Clause is not an independent source of federal power.”
Vinson did not ignore precedent. He analyzed the case under Maryland v. McCullough. You see, the idea of implied powers is not the same as a blanket ability to write any law Congress thinks is good for the country.
Under McCullough’s famous quote, a law must still be “appropriate,” and “not inconsistent with the letter and the spirit of the Constitution.” Vinson concluded that the mandate is inconsistent and inappropriate.
I understand you disagree with that analysis, but disagreement does not make Judge Vinson’s ruling absurd, or stupid, or tortured, or a trainwreck, or the mistake of a man who doesn’t know the Constitution from refrigerator mold.
Your best argument is through the Orin Kerr post that you linked above, The Weak Link In Judge Vinson’s Ruling. His point is not exactly a ringing endorsement of the mandate, though.
Basically, Kerr points out that Judge Vinson relied too heavily on the dissent and concurrence in the Raich case. Since Raich is recent, binding precident, perhaps Vinson should have said something along these lines:
“Well, the Supreme Court majority ruled in Raich that the Commerce Clause has unlimited elasticity. Therefore I am forced to rule against the plaintiffs, but I want the Supreme Court to know that they should use the following analysis to limit Raich in the future . . . .”
I have an honest, completely un-rhetorical question for you and your readers. If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?
Any thoughts on this are appreciated. What, to your mind, is the best meaning of the phrase “interstate commerce?”
Cheers!
Apples and oranges. No one — no sensible person, anyway — is arguing that the mandate itself is a tax. However, the penalty for not purchasing insurance is a tax. The Obama Administration calls it a tax, too. Some people who are opposed to health care reform argue that the penalty isn’t a tax, because if it isn’t a tax then Congress might not have the constitutional authority to impose it. But, as I understand it, Vinson seems to have wandered into some gray area where he thinks the penalty is a tax, but that Congress doesn’t have the authority to levy that particular tax. But the penalty/tax isn’t any sort of capitation or “direct” tax, so it wouldn’t be excluded from the taxing powers of Congress (exclusions in Article I, Section 9).
As a federal district judge, he does not have the constitutional authority to overturn Supreme Court decisions. As Professor Amar explained, there are Supreme Court decisions going back to the early 19th century that disagree with Vinson’s ideas about constitutional constraints.
In other words, he is ignoring truckloads of case law to impose his own ideas about what the Constitution means in his decision, and this is way overstepping HIS authority. The Supreme Court itself, in theory, could overturn all that case law if it wanted to, but not a federal district judge. This is explained in the post by conservative law professor Orin Kerr at The Volokh Conspiracy — which you seem to have skimmed. You are trying to give Vinson powers that the Constitution says he doesn’t have.
So, who’s trashing the Constitution now, hmmm?
No, he doesn’t rely on case law at all. There’s no respectable constitutional scholar on the planet who thinks Vinson was even in the ball park of case law. If you want more specifics, see Lawrence Tribe’s recent op ed in the New York Times.
Regarding the Necessary and Proper clause, there’s a good brief article on this at the American Constitution Society —
Again, Vinson was way overstepping his bounds and trying to legislate from the bench.
Got that?
Note:
So it isn’t just us evil liberals who are making this stuff up. Vinson may have cited precedents such as Maryland v. McCullough, but his ideas about what the precedents actually mean are a huge departure from what anyone else who actually understands the Constitution thinks they mean.
No, Kerr said that Judge Vinson seemed to be following the logic of Justice Thomas’s dissent (but no concurrence) in the Raich case. But he can’t base a decision on a dissent; he has to base his decision on the majority opinion. He can’t choose to toss out a Supreme Court decision because he doesn’t like it. The Constitution does not give him that authority.
What you’re admitting here is that case law required Vinson to rule against the plaintiffs. He does not have the authority, under the Constitution, to do otherwise. I suppose there is no rule against him presenting his disagreement with case law in his argument, but of course it wouldn’t be binding on the Supreme Court. And Lawrence Tribe argues that the current court is unlikely to agree with Vinson.
Your question assumes something that isn’t true. The mandate falls within long-established Constitutional authorities of Congress.
I have nothing to add to what the Supreme Court has already said it means. See the already mentioned Gonzales v. Raich, which in turn was based on other case law going back more than a hundred years. I have no quarrel with Justice Scalia’s concurring opinion in Raich, which you can read here.
Linda,
Interesting. Thank you.
Personally, I wish there was no mandate. I’m a ‘Medicare for everyone!” kind of guy.
I do find it ironic though, that the mandate was the best idea that the Republicans thought they had over a decade ago, and even a Republican judge finds it unconstitutional.
I’m not too worried about the SCOTUS on this issue, though. Really. The mandate is worth billions, no, trillions, for the companies, so I’m sure they’ll read Roberts the speach from “Network” if he starts to monkey around.
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Maha:
I quoted Vinson’s ruling itself to back up my statement that he relies on case law in his interpretation of the Necessary and Proper Clause. You quote Lawrence Tribe to back up your counter that “No, he doesn’t rely on case law at all.”
I wave the BS flag here. If you want to criticize the Vinson opinion, then quote the parts you object to and state your case against it. Don’t quote Tribe or some ACS article which sounds like it was written by someone who didn’t actually read the opinion.
Read the Vinson opinion yourself, and explain specifically why it is not based on case law. I already said that he discussed that famous Maryland v. McCullough quote in his legal analysis.
You and I are agreeing about Orin Kerr’s point. I don’t know why you think we differ there. I did say that is your best argument, but constitutionally speaking, of course, I hope that the Supreme Court decides that Vinson is right and they made a mistake with Raich, or at least that they find the facts different enough to warrant a different result regarding the individual mandate.
“You are trying to give Vinson powers that the Constitution says he doesn’t have. So, who’s trashing the Constitution now, hmmm?”
Really, I’m not sure why you have your claws out here. I never said anything about anyone trashing the Constitution. I’m quite aware that lower district courts are expected to follow the precedent of higher courts, but this mandate is a new issue, never before adjudicated. So to a certain extent, the district courts are fumbling in the dark, and have to do a little of their own critical thinking. Hence the fact that two have said yes it’s constitutional, and two have said no.
Is it so hard to admit that Vinson knows the difference between the Constitution and refrigerator mold?
Cundgulag: You’re welcome, and thanks right back atcha! It’s hard to go debating in hostile territory, so to speak, and courteousness like yours means a lot.
Linda:
The charge was that Vinson didn’t use case law. Vinson may have thought he was using case law, and he may even have cited other opinions, but there are armies of law professors and constitutional scholars saying that Vinson was not going by case law at all, because his interpretations were several miles off. I quoted and linked to some law professors and constitutional scholars to prove that Vinson’s opinion ignored case law.
Why did I bother to link to all those people and even highlight the important parts? Because I’m not a lawyer, and neither are you. These issues are not simple to understand. I took courses in constitutional history and principles a long time ago, and so I understand a lot of this better than most non-experts, but I don’t presume to have perfect knowledge without doing some studying first. I was showing you the research I had already done.
So, it’s settled. Vinson’s opinion ignored long-established case law, and all those people I quoted, who have deep knowledge of this issue, say so. You can call BS on that all you like, but your opinion means absolutely nothing, because a truckload of constitutional scholars and law professors say you have no idea what you are talking about.
All those people I linked to explained why Vinson’s opinion is based on misinterpretations and his own political opinion, not on what case law actually says. They all explained this, in several different ways, and I don’t have time to write the Cliff’s Notes synopsis for you if you’re too lazy to read the stuff. That’s why I linked to them, so that you could read expert opinion to show you why you don’t understand the issue. I even bolded the important parts. If you don’t understand what was discussed in the articles I’m sorry, but if this issue is all way over your head there’s nothing I can do about that.
You yourself disagreed with Orin Kerr’s point. Orin Kerr said that Vinson ignored the necessary and proper clause; you disagreed. Orin Kerr said that Vinson ignored the majority opinion in Raich and instead argued from the dissenting opinion, which he is not allowed to do. Kerr very plainly said that Vinson overstepped his constitutional authority in his ruling, and that point seems to have sailed right over your head.
If the point here is to protect the integrity of the Constitution, then Vinson should worry you. His opinion was out of constitutional bounds.
However, the commerce clause is not a new issue. Vinson is not allowed to interpret the commerce clause any way he likes; he ignored case law (such as the majority opinion in Raich) and instead injected an interpretation of the commerce clause based on his personal political opinion. He doesn’t have the authority to do that. This Orin Kerr explained very plainly.
Once again: Vinson overstepped his constitutional authority in this ruling. He ignored established case law and ruled incorrectly. That’s what Orin Kerr and everybody else I cited said.
He doesn’t, though. Even I grasp the principles involved here better than he does, and I never went to law school.
It’s possible they will do that (although Lawrence Tribe doesn’t think so), but only they can do that. A federal district court judge cannot decide he likes a dissenting SCOTUS opinion better and disregard the majority opinion. So even if the SCOTUS reverses Raich, Vinson’s opinion will still have been out of bounds.
Thanks for your quick feedback. You say Con Law experts who conclude Vinson is wrong are “armies” and “truckloads.” And yet you quote Lawrence Tribe, Amar, and this ACS Lazurus guy.
These few don’t qualify as truckloads or armies, me thinks. A pointless exercise anyway, since for every legally trained person you could name in favor of Obamacare, I could find one constitutionally opposed.
Your latest comment seems like a muddling of two separate issues: 1) whether the insurance mandate is constitutional, and 2) whether the district court judge strayed from binding legal predecent. We’ve both established that Kerr makes a valid point regarding #2, but we seem to be making little headway regarding #1.
“I don’t have time to write the Cliff’s Notes synopsis for you if you’re too lazy to read the stuff.” No, I read the stuff but I’m not impressed by them, except for Kerr. I wonder though, are you too lazy to read Vinson’s opinion thoroughly yourself and base your opinion on your own reading?
The thing is, Tribe and the rest don’t matter to me. I’ve read the opinion myself and it is thorough and convincing, in light of Sup Court jurisprudence on the Commerce Clause and the Necessary and Proper Clause.
Raich is certainly relevant here, but not necessarily dispositive. The facts are different enough for me to reiterate my earlier point:
“this mandate is a new issue, never before adjudicated. So to a certain extent, the district courts are fumbling in the dark, and have to do a little of their own critical thinking. Hence the fact that two have said yes it’s constitutional, and two have said no.”
You want to rely on experts here, because
“I’m not a lawyer, and neither are you. These issues are not simple to understand. I took courses in constitutional history and principles a long time ago, and so I understand a lot of this better than most non-experts, but I don’t presume to have perfect knowledge without doing some studying first. I was showing you the research I had already done.”
But at this point, it is simple. Either the federal gov’t powers are limited, or they are limitless. Either the federal gov’t powers are enumerated, or they are innumerable. And so I ask again, if we are governed by a limited government, then what is its limit under the Commerce Clause if it can mandate that we buy a product or service?
You don’t have to be an expert to ask or answer that question critically. You don’t have to be a lawyer. You don’t even have to be legally trained. It sounds like you want me to discount my analysis because I’m “not a lawyer.”
Ah, but if I confess to a prior legal career, you’ll then simply dismiss my opinion as swiftly as you’ve dismissed Vinson’s, even though his legal training is not in dispute.
In other words, I reckon, why am I bothering to argue?
Cheers!
That was just the tip of the iceberg. The American Constitution Society all by itself has opinions from a host of experts I didn’t cite, plus here is a letter on the constitutionality of the individual mandate, signed by more than a hundred law professors.
That’s what you’re supposed to do when debating on this level. Just saying “I call BS” when I’m providing all the documentation is sophomoric.
However you won’t be able to find an equal number of experts at this level. You’ll find a few lawyers who work for the Cato Institute or other right-wing think tanks who will write something to the contrary, because that’s what they’re paid to do, but you won’t find an equal number of independent, high-caliber scholars who will argue that Vinson was right. They just ain’t out there. However, you are welcome to try to find a few if you want, and in fact I urge you to do so. You might learn something in the process.
They are two issues, but they are also related issues, because Vinson’s opinion was based on an interpretation of the commerce clause that is at odds with case law. That’s why his opinion of the constitutionality of the insurance mandate is invalid.
As far as the constitutionality of the law is concerned, I have already cited several reasoned arguments that say it is, but I explain a bit more below.
But you don’t understand what those things mean. Vinson’s arguments are persuasive to you because you don’t know enough about these constitutional principles to understand what a pile of crap Vinson’s decision is. Your saying what a wonderful decision it is means absolutely nothing.
This has already been discussed several times, but I’ll state it once, for the record, even though I despair that you will understand any of this.
Yes, the powers of the government are limited, but not in the way you think they are. The chief constitutional constraints on government are the Bill of Rights and the separation of powers.
However, just because a particular issue — health insurance, air traffic controllers, meat inspection, paper money, whatever — is not specifically called out in the Constitution as something Congress can make laws about doesn’t mean any law about those things is unconstitutional. The Constitution has never been interpreted that way, ever, since the thing was written. If We, the People, want our legislators to make a law to take care of something the Founding Fathers never heard of, that’s OK.
In other words, “enumerated powers” doesn’t mean Congress cannot regulate health insurance just because Article I, Section 8 doesn’t list health insurance. That’s the issue the Maryland v. McCullough quote is speaking to.
As far as the commerce clause is concerned — there are entire libraries of decisions about the commerce clause, but let’s look at what Justice Scalia wrote in his concurring opinion in Raich. Scalia said that Congress could, under the commerce clause, punish people for growing marijuana for their own use, not for sale across state lines. Congress could do this, he said, because a ban on homegrown marijuana could be considered necessary and proper for enforcing federal regulations of drug markets.
In other words, the commerce clause takes in any economic choice or activity that impacts interstate commerce, not just stuff that gets transported across state lines for sale.
Now, I happen to think Scalia’s opinion is a much bigger stretch than the argument for the mandate, which is this — it has long been understood that the commerce clause gives Congress the power to legislate in matters of national economic significance, which health care and health insurance definitely is.
The problem of uninsured people is a terrible drain on our national economy. For example, people who use emergency rooms as “free clinics” are costing all of us, big time, because the costs for their care ends up being paid through taxes and through higher insurance bills — hospitals pad everyone’s bills to make up for uncompensated care. The costs of health care are rising so fast that it’s eating our economy, draining state and federal budgets, and hurting business and our ability to be competitive in global markets. Do you understand that much? (And no cracks about the cost of “Obamacare” — the CBO says it will save the federal budget big bucks; repealing it will cost the budget $230 billion in the first decade alone.)
People who have no health insurance when they get sick or get into an accident are freeloading, and what health care they eventually receive is provided in about the least cost-ineffective way anyone could devise. People — including people in other states — who choose not to get insurance or who can’t get insurance even if they try are impacting YOU. They are costing you money. It is cranking up the cost of everyone’s insurance. So these decisions to not get insurance have a broad impact that affects people across the nation.
The Affordable Care Act provides several ways to help people find and pay for lower-cost insurance. Also lots of people can’t get insurance, because they have pre-existing conditions and insurance companies won’t insure them. So, the Affordable Care Act mandates that in 2014, insurance companies can no longer deny people coverage because they have pre-existing conditions.
However, the only way that’s going to work is if there is some very strong incentive for everyone to get insurance, even while they are young and healthy. Otherwise, everyone would just wait until they needed medical care and then go out and buy insurance. But if they did that, insurance companies couldn’t stay in business. Keeping health insurance affordable depends on having a really big risk pool that includes a large number of healthy people who don’t make that many claims. That’s how insurance works.
So, because the problem of people without health insurance is a problem impacting our national economy, and the Affordable Care Act is the way Congress chose to address this problem, the insurance mandate is a necessary and proper regulation that is needed for the Act to work. Otherwise the whole thing falls apart. (That’s the one thing Vinson was right about — the individual mandate cannot be separated out from the rest of the Act.) This is in line with how the necessary and proper clause has been understood since Justice Marshall’s time. It also conforms to case law regarding the commerce clause going back more than a century.
That’s the argument in a nutshell. Other people have explained it better, but I’ve already linked to several better explanations that you apparently refuse to read.
I’m discounting your analysis because you don’t understand the principles involved, which are more complex than you appreciate. Your arguments are silly.
You are not arguing, actually. I am actually debating this issue, providing reason, documentation, and citation. You are just saying “I disagree with you” several different ways. That’s not arguing.
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Ah ha, I get it now, your experts are better than mine. Of course. Ha.
I think I’ll borrow a sentence of yours now: This has already been discussed several times, but I’ll state it again, even though I despair that you will understand any of this.
I do get the principle of implied powers. Saying that Congress’ powers are enumerated, ie, limited, is not the same as saying “there is no such thing as implied powers.”
Yes there are implied powers. I just don’t think the mandate is one of ’em. Under McCullough v. Maryland, even a law passed with implied powers still has to be appropriate and not inconsistent with the letter and spirit of the Constitution.
This is the point where our analyses diverge. You find it to be appropriate and consistent with your view of the Constitution. I do not. Logic dictates that there must be a limit to Commerce Clause at some point, and so I really wish someone could hazard an answer to that question I keep asking:
If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?
Because if the answer is as I suspect–there is no limit–well then the Constitution can be used to support virtually any law that any Congress could conceive. You know, in a few years when the teabaggers have taken over the House, Senate, and Presidency, that fact may worry you a bit.
Wink.
I’ll finish by borrowing one more quote:
“But you don’t understand what those things mean. Vinson’s arguments are [not] persuasive to you because you don’t know enough about these constitutional principles to understand [how wonderful] Vinson’s decision is. Your saying what a [pile of crap] decision it is means absolutely nothing.”
Huh, that goes quite nicely both ways.
cheers!
You haven’t provided any experts. Not one. If you had, we might have something to discuss, but you haven’t.
Yes, that’s the argument in Vinson, borrowed from Justice Thomas’s dissent in Raich. And as I’ve explained, Vinson’s reasoning is out of line with long-established case law. This is what Professor Kerr explained. Vinson is imposing a weird (but trendy) “originalist” interpretation of the Constitution that ignores more than a century of case law. He doesn’t have the authority to do that.
Now, your opinion as to what the authors of the Constitution, however uninformed it may be, is your opinion. And Vinson’s opinion is Vinson’s opinion. But when the day is done, all that matters as far as law is concerned is how the Constitution has been read and interpreted by the Supreme Court lo these many years. And I’ve presented the argument that the mandate very easily fits into how the Court has understood the commerce clause for at least a century.
Note that this is not “my” opinion. It’s how the commerce clause has been understood for a long time. I’m simply explaining it to you.
Whatever activity or decisions (the “inactivity” argument is shredded by several of my experts, so please don’t be so tiresome as to dredge that up) has a significant impact on the nation’s economy is subject to regulation through the commerce clause. This is how the commerce clause is understood in U.S. case law, and how it has been understood for a long time.
Provisions in law that are necessary and proper to regulate whatever has a significant impact on the nation’s economy are constitutional.
You’re saying that you disagree with this because you don’t think the Constitution ought to be read that way is simply not a valid argument, in light of long established precedent that says otherwise.
I’ve answered this question before, but I will repeat what I said earlier using smaller words:
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
The two judges who found the mandate constitutional, and all the guys I’ve been quoting, including Orin Kerr, agree that the mandate falls well within the limits of the commerce clause that have long been established. I provided Justice Scalia’s concurrence in Raich, which cites case law going back more than a century, as an example of how broadly the commerce clause has already been interpreted. Once again,
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
Have you got that now? Thanks much.
Now, what is the already established limit? An example, also already cited by several of my experts and also by Justice Scalia, is found in U.S. vs. Lopez (1995). In that case, the Supreme Court overturned a federal law called the Gun-Free School Zones Act of 1990. This Act provided that people could not carry firearms within a school zone. When the act was challenged on constitutional grounds, the attorneys for the Justice Department tried to use the commerce clause to explain how Congress had the authority to make that law. But the Court nixed the argument, saying that the Justice Department failed to show how carrying, or not carrying, firearms in a school zone had any significant impact on the nation’s economy.
In other words, Congress may not write any law it likes and say it’s constitutional under the commerce clause. Congress’s authority under the commerce clause pertains to matters that significantly impact the nation’s commerce and economy. And, as I explained, the fact that large numbers of Americans lack health insurance has a massive impact on the nation’s economy.
Therefore, as the preponderance of legal scholars, law professors, etc., agree, the mandate easily falls within LONG ESTABLISHED PRECEDENT of how the commerce clause works. Once again,
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
This is not a “new” limit.
That’s why I am basing my arguments on the arguments of people who really do understand this stuff. I’m not just pulling opinions out of my ass, as you are doing.
In other words, what I’m telling you is not “my” opinion. It’s the opinion of many experts.
Now, as much fun as it is to explain the same thing to you six different times, without your once grasping what the hell I’m talking about, I don’t have time to do this any more. I have other stuff I have to spend the next several hours doing to make a living. So, bye.
I wonder why no one on the right was as upset about the “Patriot Act” and other numerous human and civil rights infingements and violations under Little Boots and his Republican Congresses as they are about a tax on people who choose not to buy health care insurance?
From 2003 to 2007 we saw a number of Executive and Congressional over-reaches, including even Habeus Corpus – what should have been the “holiest-of holy”, but not one peep from anyone on the right.
But now this health care legislation, and its mandate, is some sort of an atrocity on the level of Augustus/Nero/Stalin/Hitler/Mao proportions.
Why is that?
Never mind. I think I know the answer…
c u — of course we know the answer. The rightie propaganda machine didn’t tell the lemmings they were supposed to be upset about the signing statements, the “unitary executive” theory, warrantless surveillance, the trashing of habeas corpus, and several other constitutional outrages perpetrated by the Bush Administration.
IOKIYAR. In Rightie Land, the constitutionality of anything is determined by the political party of the person doing it.
In Linda’s case, she said she agreed with the conservative lawyer (Orin Kerr) but didn’t care for the opinions of the other people I cited. But they were all saying the same thing. That’s really sad, with Truth Itself is determined not by what is said, but who is saying it.
Yup! Party over country!
They’d rather rule in Hell, than serve in Heaven. I wouldn’t mind it so much if they weren’t dragging all of the rest of us with them. They desreve Hell. The rest of us, uhm, not so much…
If I must name at least one expert, how about Randy Barnett. I judged those others by their opinions, not affiliations. Not that you’ll take my word on it.
Yes, yes, significant impact. Which can even be found in the aggregate via Wickerd. I still think the facts are distiguishable enough from prior precedent. This makes me a dumb lemming in your estimation, no matter what.
Should I apply the same logic and conclude you are a dumb lemming too, since you don’t agree with me?
PS Yeah, Gulag, I know what you mean. I was disappointed that more Tea Party reps didn’t block the Patriot Act reauthorizations.
Well clearly I’ve irritated you enough. Going away now. Bye-bye.
How about a link? (Not just pulling teeth, but pulling teeth out of a duck!). OK, I found him. He’s making the “commercial inactivity” argument, which my guys say is absurd.
So that’s one, although you get points deducted for using an expert who is a fellow at the Cato Institute. That doesn’t mean he’s wrong, but it does mean he is being well paid to write papers and op eds promoting Charles Koch’s views. Koch, a founder of Cato, is one of the Koch brothers who are major underwriters of the entire conservative moment, including the “tea party.” See also “Koch brothers now at heart of GOP power” in the Los Angeles Times and “The Billionaires Bankrolling the Tea Party” by Frank Rich in the New York Times.
Again, just because Randy Barnett is taking money from Charles Koch doesn’t mean he’s wrong, but it does make his opinions somewhat conditioned. But, by golly, you found one. Now if you can find about 109 more, we’re even.
The point is, as has been said elsewhere, opinion is not evidence. You are entitled to your own opinion, but when it comes to debating which opinion is correct, you have to offer evidence.
They were all essentially saying the same thing, yet you only agreed with the conservative. That says all I need to know.
No, because I offered tons of evidence, and I cited conservative as well as not-conservative legal experts as sources. This means that if we were competing in a debating tournament, I would win.
Wow, maha, that’s some heavy lifting you’ve been doing today! I really salute you for continuing to represent your point.
I realize you won’t have an answer, and I don’t know if Linda will be coming back, but I’m still confused by one particular thing she repeated that drove you into fits of repetition.
What I don’t understand is Linda’s implication that the suggestion that Government can mandate we buy goods and services is a new thing and the way she thrashes about asking what the “new limit” will be. Your answer was as clear as you can make it, and I agree. But I don’t even understand why the question comes up. Why would anyone think this was new, and wonder where the limit would be?
I presume the limit will be just where it has been for the centuries since the 1792 Militia Act. Sure, that was based on the militia clause and not the commerce clause, but if the guys who wrote and passed the Constitution thought it gave Congress the ability to tell people to buy specific items, then what’s the fuss about? It’s limited by having to have something to do with a legitimate function of Congress. Like organizing a militia, or like regulating interstate commerce. Same as it ever was.
If the mechanism of requiring private people to buy goods was presumably thought “appropriate and not inconsistent with the letter and spirit of the Constitution” in 1792, and even Vinson agrees that commerce clause mechanisms are valid as long as they are within Constitutional bounds and have an effect on the national economy, why are people still talking? The ACA is clearly OK.
This “OMG! Congress is doing something so new and overreaching!” attitude always confounds me.
(Apologies if you are sick of talking about the subject. I don’t blame you.)
I assume that someone she’s reading or listening to is asking that same question — “If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?” — and she thinks the question makes some devastatingly original point. After she asked it the first time, I explained several different ways that it was not a “new” limit, but then she asked the question again, completely ignoring what I’d written before. This suggests that she wasn’t really interested in the answer, but seems to have thought she had me stumped. She was so certain she had made a point that she didn’t notice I’d already answered the question. This makes me suspect the question itself has taken on significance in some little cul-de-sac of Rightworld.
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