Losing the argument - In Opinion Journal, two lawyers for the states' case against Obamacare write "Why Obamacare is losing in the courts - The government's lawyers keep changing their arguments as each one is exposed as constitutionally suspect."
Meanwhile, in the court of public opinion, "finding out what's in the bill" has not convinced Americans to support Obamacare.
4 comments:
HIW49
said...
Two lawyers for the states' case: "Both before and after the Supreme Court accepted the constitutionality of federal economic regulations in the late 1930s, it has consistently stated that there are limits on federal power and, in particular, on Congress's power to regulate interstate commerce. It has upheld those limits in a number of cases, making clear that federal regulation cannot reach into areas too remote from legitimate federal concerns."
This just isn't true. The Supreme Court would need to create a fresh line in the sand and reverse its own history of rulings in the area of commerce to do what Rivkin and Casey incorrectly claim has already been done "consistently." Which is not to say the Court won't do just that -- but they haven't before.
"Thus the administration's position comes to this: ...Congress can be trusted to act responsibly, imposing purchase mandates only when they are essential. That's why Congress can mandate medical insurance but would never require Americans to buy broccoli. The courts have always found such promises constitutionally insufficient."
Actually, the Supreme Court has repeatedly and explicitly said just the opposite for decades.
To hear Rivkin and Casey tell it, one would never know that "Obamacare" has been upheld many more times than it has been overturned. And a first-year law student could tell them that, historically, early rulings in important cases have no predictive power.
Finally, the authors' critique of the government's shoddy argument techniques would be much improved if they didn't draw an analogy between national health coverage and the housing market. They might also have avoided claiming that the law outstrips the old Soviet Union's control over its citizens.
Unfortunately for you, the USSC starting reversing those rulings about 16 years ago.
Oh, and Obamacare has been upheld several more times in lower courts than it has been struck down? So? Those rulings and a $1.50 will buy you a cup of coffee, otherwise they don't mean squat.
Oh, and Obamacare has been upheld several more times in lower courts than it has been struck down? So? Those rulings and a $1.50 will buy you a cup of coffee, otherwise they don't mean squat.
Er, yes, I kind of mentioned that in THE VERY NEXT SENTENCE. Did you black out precisely at that point? Does "Obamacare" cover narcolepsy?
Wow HIW49, are you totally wrong. I'll tell you what isn't true, just about everything you said... http://en.wikipedia.org/wiki/United_States_v._Lopez
Wow, Anonymous, do you realize that US v. Lopez did not reverse any prior rulings on the commerce clause? The Lopez decision hinged on noneconomic factors which were judged to be too tangentially related to the commerce clause. But the clause itself emerged intact.
While Lopez is a significant decision, Gonzales v. Raich is just as compelling a ruling for the "other side." You might also look at United Haulers Assoc. v Oneida-Herkimer Solid Waste Management Authority, in which John Roberts wrote for the majority in a commerce case where the public benefit was judged to outweigh the cost of the restrictions. Your claim - "the USSC starting reversing those rulings about 16 years ago" - is not correct.
Wow, are you aware that the Supreme Court has said on more than one occasion that the appropriate remedy for perceived commerce overreach is via election? One such example: "The principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action."
Wow, do you realize that the Court has overturned several laws involving the commerce clause over the decades, before and after Lopez, without ever once disputing Congress' intrinsic constitutional power to interpret and legislate the clause?
You can root, root, root for the home team, but your ardor won't make Supreme Court precedent say what you wish it did.
4 comments:
Two lawyers for the states' case:
"Both before and after the Supreme Court accepted the constitutionality of federal economic regulations in the late 1930s, it has consistently stated that there are limits on federal power and, in particular, on Congress's power to regulate interstate commerce. It has upheld those limits in a number of cases, making clear that federal regulation cannot reach into areas too remote from legitimate federal concerns."
This just isn't true. The Supreme Court would need to create a fresh line in the sand and reverse its own history of rulings in the area of commerce to do what Rivkin and Casey incorrectly claim has already been done "consistently." Which is not to say the Court won't do just that -- but they haven't before.
"Thus the administration's position comes to this: ...Congress can be trusted to act responsibly, imposing purchase mandates only when they are essential. That's why Congress can mandate medical insurance but would never require Americans to buy broccoli. The courts have always found such promises constitutionally insufficient."
Actually, the Supreme Court has repeatedly and explicitly said just the opposite for decades.
To hear Rivkin and Casey tell it, one would never know that "Obamacare" has been upheld many more times than it has been overturned. And a first-year law student could tell them that, historically, early rulings in important cases have no predictive power.
Finally, the authors' critique of the government's shoddy argument techniques would be much improved if they didn't draw an analogy between national health coverage and the housing market. They might also have avoided claiming that the law outstrips the old Soviet Union's control over its citizens.
Wow HIW49, are you totally wrong. I'll tell you what isn't true, just about everything you said.
For starters, take a look at this limit to Federal power to regulate in interstate commerce.
http://en.wikipedia.org/wiki/United_States_v._Lopez
Unfortunately for you, the USSC starting reversing those rulings about 16 years ago.
Oh, and Obamacare has been upheld several more times in lower courts than it has been struck down? So? Those rulings and a $1.50 will buy you a cup of coffee, otherwise they don't mean squat.
Oh, and Obamacare has been upheld several more times in lower courts than it has been struck down? So? Those rulings and a $1.50 will buy you a cup of coffee, otherwise they don't mean squat.
Er, yes, I kind of mentioned that in THE VERY NEXT SENTENCE. Did you black out precisely at that point? Does "Obamacare" cover narcolepsy?
Wow HIW49, are you totally wrong. I'll tell you what isn't true, just about everything you said... http://en.wikipedia.org/wiki/United_States_v._Lopez
Wow, Anonymous, do you realize that US v. Lopez did not reverse any prior rulings on the commerce clause? The Lopez decision hinged on noneconomic factors which were judged to be too tangentially related to the commerce clause. But the clause itself emerged intact.
While Lopez is a significant decision, Gonzales v. Raich is just as compelling a ruling for the "other side." You might also look at United Haulers Assoc. v Oneida-Herkimer Solid Waste Management Authority, in which John Roberts wrote for the majority in a commerce case where the public benefit was judged to outweigh the cost of the restrictions. Your claim - "the USSC starting reversing those rulings about 16 years ago" - is not correct.
Wow, are you aware that the Supreme Court has said on more than one occasion that the appropriate remedy for perceived commerce overreach is via election? One such example:
"The principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action."
Wow, do you realize that the Court has overturned several laws involving the commerce clause over the decades, before and after Lopez, without ever once disputing Congress' intrinsic constitutional power to interpret and legislate the clause?
You can root, root, root for the home team, but your ardor won't make Supreme Court precedent say what you wish it did.
Facts v. Anonymous (2011), case dismissed with prejudice.
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