Healthcare Reform Thread II

[Drake Tungsten]

Thank you.

[Darius871]

Given that the post links to a discussion of Raich and "Symbolic Federalism", I fail to see how you can claim that their is no legal arguments contained.

An offhand reference to the fact that Raich exists is not an argument, even if I happen to agree with Kerr's conclusion. I'd like to see an actual explanation as to why Raich's limited facts of actively producing and consuming the object of a federally prohibited market that is "never more than an instant from [entering that] interstate market" are so similar to passively sitting back and declining to purchase the object of a federally regulated market as to make Raich the controlling authority, particularly keeping in mind that Kennedy (the 5th vote) sided with the majority in both Lopez and Morrison, Scalia's concurrence was very circumscribed, and neither Roberts nor Alito were in the mix.

All I see for now is a nebulous haze of uncertainty that makes a Lopez/Morrison argument (to say nothing of the Printz/New York, Kelo, and substantive due process kitchen sinks that'll surely be thrown in) both colorable and inevitable for legislation of this magnitude. That's not to say it has a snowball's chance in hell, but then nobody dreamed that school gun bans or the Violence Against Women Act would be struck down either until Lopez and Morrison came along. As far as I'm concerned it ain't over until the fat lady denies certiorari.

EDIT: missed your almost-a-DanS-but-not-quite:

Raich's facts where the challengers had actively participated in a federally regulated market.

That's a questionable view on the "facts" involved in Raich. How does growing marijuana for your own personal use = actively participating in a federally regulated market? Raich pretty clearly indicated that the broad interpretation of the Commerce Clause laid out in Wickard was still supported by the Court, despite the minor defense of federalism in Lopez and Morrison.

Yeah, that's why I added the nuance of "actively producing and consuming the object of a federally prohibited market that is 'never more than an instant from [entering that] interstate market'" in my next post. In the Court's view such a potential distributor was for all intents and purposes tantamount to a distributor in terms of potential aggregate impact on the federal prohibition's effectiveness. My only point's that going out of your way to grow and smoke contraband, with the risk that its potential distribution could - in the aggregate - severely undercut federal attempts to "extinguish" the market in it, is very different from merely continuing to breathe and enjoying your right to privacy without going out of your way to buy X from private entity Y. A hail mary for sure, but far from frivolous as you said.

[Drake Tungsten]

An offhand reference to the fact that Raich exists is not an argument, even if I happen to agree with Kerr's conclusion. I'd like to see an actual explanation as to why Raich's limited facts of actively producing and consuming the object of a federally prohibited market that is "never more than an instant from [entering that] interstate market" are so similar to passively sitting back and declining to purchase the object of a federally regulated market as to make Raich the controlling authority]

Again, this is a pretty facile way of examining why the federal government was allowed to regulate what doesn't seem like interstate commerce in Wickard and Raich, but wasn't allowed to do so in Lopez and Morrison. The key difference seems to be that the Court decided Wickard and Raich involved the regulation of economic activity, while Lopez and Morrison didn't. It's extremely unlikely that a court whose ideological balance is unchanged since Raich would find that an individual mandate that would substantially affect premium prices (and is therefore a necessary complement to regulation forcing health insurance companies to take all applicants, regardless of pre-existing conditions) isn't economic activity subject to federal regulation.

particularly keeping in mind that Kennedy (the 5th vote) sided with the majority in both Lopez and Morrison, Scalia's concurrence was very circumscribed, and neither Roberts nor Alito were in the mix.

Roberts and Alito replaced Rehnquist and O'Connor, who were in the majority in Lopez and Morrison and in the minority on Raich. The fact that they're in the mix now doesn't change a thing.

[Darius871]

Roberts and Alito replaced Rehnquist and O'Connor, who were in the majority in Lopez and Morrison and in the minority on Raich. The fact that they're in the mix now doesn't change a thing.

Of course, and with Sotomayor replacing Souter, obviously Kennedy's the only real wild card, having voted with both the Lopez/Morrison and Raich majorities. I just threw them in at the end because the composition of the Court overall sometimes makes a difference (hell, even Scalia and Ginsburg have buddied up on occasion). The chances of them swaying Stevens, Sotomayor, Ginsburg, or Breyer on this issue are definitely infinitesimal though.

Again, this is a pretty facile way of examining why the federal government was allowed to regulate what doesn't seem like interstate commerce in Wickard and Raich, but wasn't allowed to do so in Lopez and Morrison. The key difference seems to be that the Court decided Wickard and Raich involved the regulation of economic activity, while Lopez and Morrison didn't. It's extremely unlikely that a court whose ideological balance is unchanged since Raich would find that an individual mandate that would substantially affect premium prices (and is therefore a necessary complement to regulation forcing health insurance companies to take all applicants, regardless of pre-existing conditions) isn't economic activity subject to federal regulation.

I don't disagree with this a bit; like you said, we just agree that it's not frivolous like Guy or especially MrFun made it sound. Other than that I'll just wait and see how the briefs look.

In the end what concerns me most is that even though circuit judges are filled by Washington appointments, inevitably some are more right-leaning than others and there's a decent chance that a 4-3 majority in at least 1 out of 12 (my money's on the 5th or 10th) will go out on a limb with this one, forcing the Supremes' hand. They could deny certiorari from unanimous circuits, but there's no way they'd stand by and watch several states go on exempt from the mandate. While I think you're right about how it'll turn out, the way that they'll have to analytically get there will deal a much greater blow to state sovereignty than Raich ever did.

[Drake Tungsten]

I don't disagree with this a bit; like you said, we just agree that it's not frivolous like Guy or especially MrFun made it sound. Other than that I'll just wait and see how the briefs look.

OK.

[Guynemer]

I'm sorry, but isn't one of the whole points of this whole ****ing debate (and the one point that wasn't really substantively addressed at all, sadly) the fact that health care costs are ~16% of all dollars spent, and rising? How does that not meet the definition of the commerce clause?

[Guynemer]

Apropos of nothing, there is one good thing that will come out of this bill:

Rush Limbaugh's promised move to Costa Rica. I wonder if he needs help packing his bags.

[Drake Tungsten]

There are no constitutional objections to the vast majority of the bill. There is a plausible objection to the individual mandate based on the original language of the Commerce Clause but, in practice, the scope of the Commerce Clause has been expanded to the point where the federal government can pretty much do whatever it wants to regulate intrastate activities so long as there is the slightest hint that such activities are economic in nature. If Congress can order you not to grow wheat on your own land to feed to your chickens, they can also order you to buy health insurance you don't want.

[HalfLotus]

Best thing about this bill is that the radical left may not have enough political capital left to pass a nightmarish carbon tax bill.

[Drake Tungsten]

Carbon tax

Cap and trade

This healthcare reform

[Dinner]

What exactly is retarded about challenging a law you think might be unconstitutional?

If they honestly thought it was unconstitutional then I wouldn't have a problem with them challenging it. It's just they don't, everyone knows they don't, and instead this is just idiotic posturing for the November elections just like the Republican campaign to repeal health care. Neither will ever pass and they know it isn't even remotely constitutional and that's what makes it retarded or at least for the consumption of retards.

[MrFun]

After reading through most of each of four cases Darius linked from Wikipedia, I followed the link about "medical necessity" and its context in American law from the Gonzales v. Rach case.

From Wikipedia:

Medical necessity is a United States legal doctrine, related to activities which may be justified as reasonable, necessary, and/or appropriate, based on evidence-based clinical standards of care.

The federal government can use its authority to carry out its responsibility to protect basic human rights. Obviously, one of those basic human rights is the right to life.

Could not the defense in the anti-health care bill suit not use the argument that in cases where a person's life depends on necessary medical care, that the federal government needs to ensure such people's right to life is protected even if they cannot otherwise afford such necessary medical care?

The four cases Darius linked to are in the context of the commerce clause issue, and to what extent the federal government can exercise its power through this clause. But after following the link to "medical necessity" I started thinking about how the defense may be able to form a different argument of their own.

[flash9286]

Where is the federal government getting its authority to protect basic human rights? Don't remember seeing that in the Constitution.

[Dinner]

You've never heard about the part which says necessary and proper? Most people would say basic human rights are both necessary and proper.

[flash9286]

Have you ever read the necessary and proper clause?

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof

So protecting human rights is necessary and proper to carry out which enumerated power of the federal government?