House Votes for Repeal of Health Law in Symbolic Act

[Imran Siddiqui]

So if they just called it by a different name it would be okay? Yeah, that really makes sense...

Seriously.

[giblets]

However the federal government does have the ability to compel ownership of a gun (re: Militia Act of 1792) in furtherance of the powers of the legislative re:militia. Just not necessarily the compulsory purchase of one.

So the government can tax you and then force you to accept a gun from the government paid for by taxing you, but it can't make you purchase one? That makes a lot of sense!

[BlackCat]

It's not like people are being held at gunpoint and shot if they don't buy health insurance.

That could actually both improve overall health immedieatedly and improve it in the future.

[giblets]

Former Reagan Solicitor General Charles Fried delivered testimony during a Senate hearing on the "The Constitutionality of the Affordable Care Act," expressing, in no uncertain terms, his personal assessment that he is "quite sure that the health care mandate is constitutional."

Here's the key part of Fried's statement, transcribed by ThinkProgress:

I am quite sure that the health care mandate is constitutional. ... My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress' Commerce power, "what is this power? It is the power to regulate. That is--to proscribe the rule by which commerce is governed." To my mind, that is the end of the story of the constitutional basis for the mandate.

The mandate is a rule--more accurately, "part of a system of rules by which commerce is to be governed," to quote Chief Justice Marshall. And if that weren't enough for you--though it is enough for me--you go back to Marshall in 1819, in McCulloch v. Maryland, where he said "the powers given to the government imply the ordinary means of execution. The government which has the right to do an act"--surely, to regulate health insurance--"and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means." And that is the Necessary and Proper Clause. [...]

I think that one thing about Judge Vinson's opinion, where he said that if we strike down the mandate everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance.

Earlier this week, Roger Vinson, a U.S. District Judge from Florida, ruled the entire health care reform law unconstitutional, after finding that the individual mandate aspect of the package constituted governmental overreach.

A blogger at Forbes has highlighted another segment of Wednesday's discussion in which Fried explains, using the same logic, his interpretation that the federal government could, under the Constitution, force citizens to buy vegetables, but not eat them.

[Hauldren Collider]

Is his interpretation supposed to matter?

[giblets]

I'm fully aware that he's not a member of the supreme court. What's your point? What, I can't post someone's opinion if I feel like it?

[giblets]

Will health care go to the Supreme Court?
By Ezra Klein

A conservative legal scholar and friend writes in to say that I've been too quick to predict that health-care reform will end up in front of the Supreme Court:

There remains a very good chance that this will not end up before the Supreme Court. While the plaintiffs wisely chose district courts that reside in more conservative parts of the country (the 11th & 4th Circuits) there remains no guarantee that the Circuit Courts will affirm the decisions finding the mandate unconstitutional. To the extent that my sense that these challenges represent an outlier view among even conservative legal thinkers [is correct], then it is less likely that either a three-judge panel of either circuit, or, as would be likely either way, either circuit sitting en banc, would throw out the mandate as two trial courts have done.

I do not believe the Supreme Court would be inclined to take this issue up in 2012 (the likeliest timetable) if no Circuit court had found the mandate (or any other part of the law) to be unconstitutional. So this could still finish up in the Administration's favor before it reaches the Supreme Court, and if it does, I don't think the Supremes would feel compelled to weigh in, given the givens.

Were I a wagering man, I'd wager just a little bit that these lower court decisions will be reversed and the matter will end there.

Further evidence for that view here. I'd take my friend's bet, but not because I think he's wrong as a matter of law. I'd take it because I consider the courts quite -- though not entirely -- politicized. And this is politically too big and too charged of an issue for these guys not to have developed strong opinions on.

[Hauldren Collider]

Ezra Klein's [FRIEND IS] a fool. There is absolutely zero chance this will not be taken up by the Supreme Court. The court took up ****ing Bush v. Gore, they aren't afraid of cases with political fallout.

EDIT: Actually it's not clear to me if Ezra Klein agrees with his friend or not. By "take his friend's bet" does he mean he would bet on the side of it reaching the Supreme Court or on his friend's side (the opposite)?

EDIT 2: Okay I'm dumb and misread it.

[giblets]

Ezra Klein's a fool. There is absolutely zero chance this will not be taken up by the Supreme Court. The court took up ****ing Bush v. Gore, they aren't afraid of cases with political fallout.

I don't think he said they were afraid of political fallout.

[Hauldren Collider]

I don't think he said they were afraid of political fallout.

They take up cases that they see as being important issues and they don't listen to the circuit courts that much unless they all agree. This case is too important for them to ignore.

[DinoDoc]

So if they just called it by a different name it would be okay? Yeah, that really makes sense...

Seriously.

Is the Constitutionality of Obamacare (Merely) Semantic?

Specifically:

Merely calling it a tax and changing the enforcement regime wouldn’t change at all its underlying structure or its function. Supreme Court case law recognizes this. Quoting Randy Barnett:

In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

[Imran Siddiqui]

http://en.wikipedia.org/wiki/Bailey_...l_Furniture_Co.

The Court later abandoned the philosophy underlying the Bailey case. For example, see United States v. Kahriger, 345 U.S. 22 (1953), overruled on other grounds, Marchetti v. United States, 390 U.S. 39 (1968).

[Hauldren Collider]

There are a lot of people that think that abandonment was incorrect, such as (correct me if I am mistaken) Clarence Thomas.

My understanding is also that a number of other justices only hang onto it because of stare decisis.

[Imran Siddiqui]

Justice Kennedy loves stare decisis, regardless.

[DinoDoc]

http://en.wikipedia.org/wiki/Bailey_...l_Furniture_Co.

From the Barnett link, It looks as if Kahriger fails to help supporters of the mandate either:

Supporters of the mandate cite U.S. v. Kahriger (1953), where the Court upheld a punitive tax on gambling by saying that "[u]nless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power." Yet the Court in Kahriger also cited Bailey with approval. The key to understanding Kahriger is the proposition the Court there rejected: "it is said that Congress, under the pretense of exercising its power to tax has attempted to penalize illegal intrastate gambling through the regulatory features of the Act" (emphasis added).

In other words, the Court in Kahriger declined to look behind Congress's assertion that it was exercising its tax power to see whether a measure was really a regulatory penalty. As the Court said in Sonzinsky v. U.S. (1937), "[i]nquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts." But this principle cuts both ways. Neither will the Court look behind Congress's inadequate assertion of its commerce power to speculate as to whether a measure was "really" a tax. The Court will read the cards as Congress dealt them.