Friday, November 26, 2010

That pesky Commerce clause - The NY Times notes that a federal judge in Virginia is putting the stink eye on Obamacare's principle tenet that people can be compelled to purchase health insurance: "Administration is bracing for setbacks to health law."

Most legal opinion I've seen so far holds that Congress can do whatever the heck it wants but I can't understand how a law designed to regulate the exchange of goods across state lines can be used to regulate the non-purchase of services within state lines.

Extra - Althouse notes there's no severability language; if the individual mandate goes, it all goes.


Felix Bratwurst said...

All of this is very wonderful for lawyers who like billable hours and for lobbyists who like scaring up money to "fight against" issues that go unchanged for years, if not decades.

But the field of play is simple and inevitable. If some federal judge somewhere strikes down something in the health care plan, that ruling will be appealed. And if no judge anywhere strikes down anything in the health care plan, those rulings will be appealed.

Which zooms us right ahead to Square Last: the Supreme Court, whose legislative history on these matters is known.

It's possible that they'll overturn the law, of course. But they'll need five or more "activist judges" willing to "rewrite law rather than apply it." (The GOOD kind of activist judges, naturally: the kind who agree with us.)

It's too bad we can't save a whole lot of empty but remunerative slapfighting and just leap ahead to the Roberts Court: the only step in the process that will carry any weight whatsoever.

Eric said...

That's true, there's no doubt this will end up in the Supreme Court. But given the persistent unpopularity of the legislation, I wonder how Americans will feel about it when the tax bite hits in 2014. States are already grumbling (albeit unconvincingly) about dropping Medicaid.

On the legal issue let me invoke stare decisis which the Left loves when it comes to abortion. We've had one interpretation of a law on the books for not decades but centuries - is it "activist" to restore the original meaning of the Commerce Clause?

In other words: leave me alone.

The Donor Party said...

On the legal issue let me invoke stare decisis which the Left loves when it comes to abortion.

As an opponent of the healthcare law, you should avoid mentioning abortion-related legal precedents. We're on our third generation of dynamic politicians and lawyers vowing to "overturn" Roe v. Wade. "Repealing Obamacare" has all the makings of another lifelong promise.

So STOP Ted Kenne... er, that is, Nancy Pelosi. Give as much as you can afford, today! And also tomorrow! And for the 2028 elections!

Eric said...

Well, as I alluded, there are some issues where Americans may not give a fig as long as it doesn't affect them.

Obamacare is not one of them: taxes will go up, rationing is already underway, and the unintended consequences keep piling up. The law may not be repealed by Washington but by the accumulation of resistance by the states and people.

Anonymous said...

there's no doubt this will end up in the Supreme Court

Well, there's no doubt it will end up appealed up to the Supreme Court. But there is a reasonable chance the Court will decline to hear the case at all, as they did for the first time just 3 weeks ago. A conservative group in California had been disputing the government's power to impose the mandate.

This doesn't indicate anything special, as the Court routinely declines cases that haven't progressed through the system.

What's more interesting is that Clarence Thomas and Elena Kagan were both involved in the decision. That means that neither Justice should be expected to recuse themselves if and when the case reaches their bench.