Obamacare Mandate Upheld by SCOTUS

[crawjo]

It's worth remembering that prior to oral arguments in March the attack on health care reform via the commerce clause was seen as a somewhat fringe theory of constitutional law, not supported by a majority of constitutional scholars in the country. Then Scalia comes out with his cribbed bullshit about broccoli and then for the next couple of months everybody took those arguments seriously. There is now, it appears, a 5-4 vote on the court for restricting the powers of the Commerce Clause, which is not a good thing, IMO. Another reason why the next election is so important...if any justices are replaced this argument could become more entrenched or it could become fringe yet again.

For me, the other thing that I keep in mind is that no one sought to challenge the constitutionality of the law in Massachusetts. So no one seems to be arguing that "government" does not have the right to make you buy something, or to regulate inactivity. Rather, the argument is that states can do this but not the federal government. This was not a debate about individual liberty; it was a debate about "big government," by which people mean the federal government. And I have absolutely no sympathy for arguments for states' rights. None whatsoever.

[walto]

There's no question of the constitutionality of the the Mass. law. There's a police power provision here that gives the state a ton of power to do things like this.

BTW, thanks, Uli--that makes sense.

[rollhead]

Yes, and we should remember that "Obamacare" is a repackaging of the 1993 Republican alternative to "Hillarycare."

http://www.kaiserhealthnews.org/Stor...form-bill.aspx

[LennyH]

For me, the other thing that I keep in mind is that no one sought to challenge the constitutionality of the law in Massachusetts. So no one seems to be arguing that "government" does not have the right to make you buy something, or to regulate inactivity. Rather, the argument is that states can do this but not the federal government. This was not a debate about individual liberty; it was a debate about "big government," by which people mean the federal government...

Excellent point.

[walto]

As indicated, it may well be that some states can but the Feds cannot.

Incidentally, there's a particularly bad piece in Minyanville today about how the decision brings back the hitherto unconstitutional poll tax. Quite a reach considering that it has an income threshhold and contains no penalties for failure to pay.

[walto]

Actually, since it was found to be Constitutional, I shoul have said it wouldn't have been inconceivable/contradictory for some states to be allowed--but not the Feds.

[crawjo]

As indicated, it may well be that some states can but the Feds cannot.

Incidentally, there's a particularly bad piece in Minyanville today about how the decision brings back the hitherto unconstitutional poll tax. Quite a reach considering that it has an income threshhold and contains no penalties for failure to pay.

My point is that regardless of whatever constitutional argument you can find for making that so, nobody has really been able to articulate why states should be allowed to do that but the federal government not allowed, especially for an issue that almost has to be regulated at the federal level, like health care.

[walto]

No, there are no arguments--just historical accidents of constition building in different places and times and in response to different political forces. Presumaby, libertarians will be opposed to that sort of legislation at any level and regardless of what this or that constitution says, just as more sensible people will understand the importance of socialized health care no matter what legal constraints they face.

[crawjo]

It is my belief that most Supreme Court justices know what their conclusions are and then search for the constitutional theory to match their desired conclusion. It seems from what is being written right now that Roberts was afraid of the blowback the court would receive if the ACA fell by a 5-4 vote on partisan grounds, so he switched sides and then found a constitutional argument that works for him. I'm perfectly fine with that as long as the court reaches conclusions that I support. I'd happily exchange a dumb argument with a right outcome for a smart argument with a bad outcome. Every time.

[rollhead]