Re: Darned that pesky Constitution: Obamacare

Topics: Health
17 Dec 2010

From: Ervan Darnell

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I heard a good debate on the Newshour this week [1] about the judge's
decision.

"**The Department of Justice has labored mightily both in our case and
the Virginia case to come up with some limiting principle to tell the
court, if you find for us here, if you sustain this mandate, you
wouldn't have to do it again and again ...... Americans default on over
$80 billion worth of credit card bills every year.**And that money gets
passed on to those who do pay their credit card bills.** Under her
['Center for American Progress'] logic, the government can impose a
mandate on everybody who has credit cards to carry insurance that pays
for that.**[...] There's no limiting principle.**Every activity, under
her logic, every human behavior would provide that kind of result."

Yes, exactly. The legal reasoning offered by the liberals is that there
is no limit on federal authority and the Commerce Clause means
nothing. I like the credit card analogy because it doesn't just sweep
in everything, but specifically focuses on the Obamacare argument that
people must be forced to buy insurance in order to keep costs down.
That applies in lots of areas.

I actually think the economic argument is a bit wrong because a credit
card contract already implicitly includes insurance in high rates after
late payment, but the legal argument by analogy seems good.

The liberal response: "**This notion of inactivity or activity is a
doctrine that is made up by constitutional conservatives.**

The issue here really is that we have a health care system.**For
example, 30 economists, two Nobel Prize-winning economists, filed an
amicus brief exactly on this point of economic activity.*"
*

And it's a perfectly reasonable doctrine, as if Roe v. Wade weren't a
doctrine made up by liberals to something found much less obviously in
the Constitution than the commerce clause. But the rest of her argument
is even more telling: we have an economic argument so it doesn't matter
if the law is constitutional. Exactly, it's not, and they know it.

[1] http://www.pbs.org/newshour/bb/health/july-dec10/healthcare_12-13.html

On 12/13/2010 7:42 PM, Ervan Darnell wrote:
> A federal judge just threw out the "must buy" part of Obamacare [1] as
> not being authorized by the Commerce Clause. Well, of course it
> isn't. Just how the heck do you get from regulating interstate
> commerce to forcing someone to buy health insurance? Most of the rest
> of it isn't either. How about the section that forbids your doctor
> from opening a new clinic nearer to you? Sounds in-state to me
> (usually).
>
> Liberal reaction is the funniest part of this. I especially like "The
> Atlantic" [2], which fishes around and finds a bad precedent
> (Wickard), then an even more egregious use of the bad precedent
> (Raich) and declares in effect that all limits on Congress are dead.
> Yes, Stare Decisis should maybe apply (always difficult when previous
> decisions are clearly unconstitutional), but that's different than
> expanding on bad precedent where the original argument doesn't apply.
> One bad use of the Commerce Clause doesn't mean that any bad use is
> therefore acceptable.
>
> Wish I had kept some of those liberal blog posts that opined the whole
> suit was frivolous, ha ha. Yeah, I know it's unlikely to survive
> without being overturned, but even a blip of sanity is refreshing.
>
> I love this one too: '"If we're going to outlaw discrimination based
> on preexisting conditions, the only way to keep people from gaming the
> system and raising costs on everyone else is to ensure that everyone
> takes responsibility for their own health insurance," said Stephanie
> Cutter, assistant to the president for special projects, in a blog
> post Monday.' [1] No, you can keep people from raising costs by not
> giving them unlimited free healthcare, or more narrowly by not forcing
> insurance companies to cover pre-existing conditions for the regular
> insurance price (or even by perhaps by subsidizing pre-existing
> conditions explicitly instead of implicitly as Obamacare does). Oh,
> wait, I'm talking about markets, the administration hasn't heard of
> those. I just really liked the "take responsibility part". From the
> Obama administration? The very people dedicated to rewarding
> irresponsibility in every policy they advocate.
>
> "The Obama administration says Virginia does not have the legal
> standing to challenge the law on behalf of its citizens, particularly
> for something that has yet to take effect" [3] Never mind the
> gazillions of mandates on states. I doubt they think individuals have
> standing either. Oh well, it's consistent, neither the courts nor the
> states have any authority to limit Congress.
>
> ----------------
> [1] 12/13/10 LA Times:
> http://www.latimes.com/news/nationworld/nation/la-na-healthcare-20101213,0,5667245.story
> [2] http://www.theatlantic.com/politics/archive/2010/12/commerce-clause-conundrum/67953/
> [3] http://www.reuters.com/article/idUSTRE6BC39D20101214?pageNumber=2
>


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I heard a good debate on the Newshour this week [1] about the
judge's decision.

"The Department of Justice has labored mightily
both in our case and the Virginia case to come up with some limiting
principle to tell the court, if you find for us here, if you sustain
this mandate, you wouldn't have to do it again and again ......
Americans default on over $80 billion worth of credit card bills
every year. And that money gets passed on to those
who do pay their credit card bills. Under her
['Center for American Progress'] logic, the government can impose a
mandate on everybody who has credit cards to carry insurance that
pays for that. [...] There's no limiting
principle. Every activity, under her logic, every
human behavior would provide that kind of result."

Yes, exactly. The legal reasoning offered by the liberals is that
there is no limit on federal authority and the Commerce Clause means
nothing. I like the credit card analogy because it doesn't just
sweep in everything, but specifically focuses on the Obamacare
argument that people must be forced to buy insurance in order to
keep costs down. That applies in lots of areas.

I actually think the economic argument is a bit wrong because a
credit card contract already implicitly includes insurance in high
rates after late payment, but the legal argument by analogy seems
good.

The liberal response: " This notion of inactivity
or activity is a doctrine that is made up by constitutional
conservatives.

The issue here really is that we have a health care system.
For example, 30 economists, two Nobel Prize-winning
economists, filed an amicus brief exactly on this point of
economic activity."


And it's a perfectly reasonable doctrine, as if Roe v. Wade weren't
a doctrine made up by liberals to something found much less
obviously in the Constitution than the commerce clause. But the
rest of her argument is even more telling: we have an economic
argument so it doesn't matter if the law is constitutional.
Exactly, it's not, and they know it.

[1]
http://www.pbs.org/newshour/bb/health/july-dec10/healthcare_12-13.html

On 12/13/2010 7:42 PM, Ervan Darnell wrote:
cite="mid:AANLkTikWTGWR-vj=5BxdWrF1fcbJbk8AyxxEvigwi5sm@mail.gmail.com"
type="cite">
A federal judge just threw out the "must buy" part of Obamacare [1] as
not being authorized by the Commerce Clause. Well, of course it
isn't. Just how the heck do you get from regulating interstate
commerce to forcing someone to buy health insurance? Most of the rest
of it isn't either. How about the section that forbids your doctor
from opening a new clinic nearer to you? Sounds in-state to me
(usually).

Liberal reaction is the funniest part of this. I especially like "The
Atlantic" [2], which fishes around and finds a bad precedent
(Wickard), then an even more egregious use of the bad precedent
(Raich) and declares in effect that all limits on Congress are dead.
Yes, Stare Decisis should maybe apply (always difficult when previous
decisions are clearly unconstitutional), but that's different than
expanding on bad precedent where the original argument doesn't apply.
One bad use of the Commerce Clause doesn't mean that any bad use is
therefore acceptable.

Wish I had kept some of those liberal blog posts that opined the whole
suit was frivolous, ha ha. Yeah, I know it's unlikely to survive
without being overturned, but even a blip of sanity is refreshing.

I love this one too: '"If we're going to outlaw discrimination based
on preexisting conditions, the only way to keep people from gaming the
system and raising costs on everyone else is to ensure that everyone
takes responsibility for their own health insurance," said Stephanie
Cutter, assistant to the president for special projects, in a blog
post Monday.' [1] No, you can keep people from raising costs by not
giving them unlimited free healthcare, or more narrowly by not forcing
insurance companies to cover pre-existing conditions for the regular
insurance price (or even by perhaps by subsidizing pre-existing
conditions explicitly instead of implicitly as Obamacare does). Oh,
wait, I'm talking about markets, the administration hasn't heard of
those. I just really liked the "take responsibility part". From the
Obama administration? The very people dedicated to rewarding
irresponsibility in every policy they advocate.

"The Obama administration says Virginia does not have the legal
standing to challenge the law on behalf of its citizens, particularly
for something that has yet to take effect" [3] Never mind the
gazillions of mandates on states. I doubt they think individuals have
standing either. Oh well, it's consistent, neither the courts nor the
states have any authority to limit Congress.

----------------
[1] 12/13/10 LA Times:
http://www.latimes.com/news/nationworld/nation/la-na-healthcare-20101213,0,5667245.story
[2] http://www.theatlantic.com/politics/archive/2010/12/commerce-clause-conundrum/67953/
[3] http://www.reuters.com/article/idUSTRE6BC39D20101214?pageNumber=2







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