Vox populi
February 27, 2012
Gallup found that 47 percent of Americans want a GOP president to repeal the law, while 44 percent oppose that.
However, 72 percent of Americans believe the individual mandate in the health care reform package is unconstitutional, while 20 percent believe it is constitutional.
Along party lines, a majority of Democrats – 56 percent – believe the health care mandate is unconstitutional and 37 percent defend it as constitutional. Among Republicans, 94 percent view that part of the law as unconstitutional.
Well, it probably IS unconstitutional…
We’ll see what SCOTUS says.
Categories: Political philosophy, Storm clouds gathering, USA! USA! USA!
Actually, I’m not sure that the individual mandate really is unconstutional, at least not in light of what the Court has done to the interstate commerce clause over the last seventy-five years. And Republican superhero jurists like Scalia and Thomas were a big part of that.
It’s difficult to see how the conservatives on the court invalidate the the Affordable Care Act after their majority ruling in Raich v. Gonzales – decided entirely on interstate commerce grounds – without looking silly. Further, the administration could frame the entire act as an enormous tax measure, which Congress clearly has the right to enact. Congress also has the right to regulate protected monopolies, which health insurance companies mostly are, any way they see fit.
Of course, I fully expect them to go ahead and look silly anyways. They do that with some regularity.
I wonder how your boy Romney feels about all of this. If the individual mandate is found unconstitutional in ObamaCare, it follows that such a ruling would apply equally to RomneyCare under the Fourteenth Amendment.
I can’t think of the last time that it was argued that the states have a Tenth Amendment right to infringe on liberty interests in ways that the federal government is prohibited from engaging in. And the individual mandate is either an infringement of liberty interests or it isn’t.
Sure, the Supreme Court might cut Obama’s legacy out from under him just weeks before an election, but they’ll be doing the same thing to Romney at the same time.
Hmmm. I might just write about this at my place.
The only conservative who’d look silly on that is Scalia.
Thomas and others voted the way they should on Raich v. Gonzales.
And no, the state mandate is constitutional. (If bad!) Only question here is whether a federal mandate is part of the limited powers delegated to the federal Congress.
Kennedy voted with the majority in Raich, too.
And the only question in Citizen’s United v. FEC was if McCain-Feingold’s regulation on independent expendures was constitutional in the very specific case of “Hillary: The Movie.” No one, not even Citizens United themselves, expect a ruling as broad as they got, although it was clear that it was coming when the Court called for the case to be reargued. The Roberts Court, given to its own form of activism, decided to expand the scope of the case vastly and all on its own.
Your assertion of RomneyCare’s constitutionality is counterintuitive. If the individual mandate is found unconstitutional, the only realistic grounds for such a finding are liberty interests. Congress has the express right to regulate interstate commerce, administer anti-trust exemptions and engage in taxation, which are the only other ways you could argue against the PPACA.
A finding that the individual mandate unduly restricts liberty interests would necessarily apply to the states under the Fourteenth Amendment, and it would probably do so automatically. There is no Tenth Amendment argumenent for liberty restriction once the Supreme Court finds that the individual mandate indeed restricts liberty.
On the other hand, it wouldn’t surprise me to see Roberts, Kennedy, Scalia, Thomas and Alito to try and have it both ways, which would actually look silly.
It stretches interstate commerce too far to require a purchase.
Look at the lower court decisions striking it – taxation argument from Justice failed, only interstate commerce justifies it. Courts that struck it said it’s too far, courts that upheld it said it’s in the wheelhouse of the ISC clause.
A liberty argument either hasn’t been tried or was dismissed out of hand.
No one except Michele Bachmann thinks a state mandate is unconstitutional.
That’s where Raich comes in. That decision stretched interstate commerce more than enough to accomodate the individual mandate. Again, Raich restricted home-production of a product for personal use that was recognized by law in fourteen states. And it did so in the interests of regulating interstate commerce. It was an intellectual cesspool of unmitigated nonsense, but it is the governing precedent in commerce jurisprudence.
Furthermore, If the mandate exceeds the power of the commerce and taxation clauses, then it necessarily infringes on liberty interests. That, by definition, is what requiring a purchase does. Absent a liberty ruling, the court would almost have to uphold the mandate under the necessary and proper clause. If the law doesn’t unduly infringe on liberty interests, then it doesn’t exceed the scope of the commerce, taxation, and necessary and proper clauses. And if it does, then it’s unconstitutional at the state level, as well.
What the lower courts have ruled – and those ruling are a mess that contradict each other all over the place – is immaterial. The lower courts can’t rule to override existing precedent like the Supremes can.
On the other hand, I could be wrong and the Roberts majority might be angling to reverse seventy-five years of the Court’s own settled precendent. But a Citizen’s United – type ruling on interstate commerce will eventually enrage Republicans as much as it does liberals. But conservatives should be fine with it.
Also, I haven’t heard any presidential candidate or national Republican affirm RomneyCare’s constitutionality. But I have heard all of them call it the basis for ObamaCare, which they call unconstitutional in the next breath.
State mandates are constitutional, unless the particular state’s constitution says otherwise.
Federally, we’ll see. But even Raich didn’t mandate an action, it just forbade one.
I don’t understand the difficulty you have with this one, Skippy. Leads me to doubt your conservatism.
SCOTUS may yet uphold ObamaCare, but if it does, it’s further extending the commerce clause’s application.
Waitasecond, you’re defending the constitutionality of a state individual mandate, while opposing a federal one, and you’re doubting my conservatism? That’s … interesting.
More importantly, you’re factually wrong. A federal measure that violates liberty interests cannot subsequently be upheld in the states under the Fourteenth Amendment. And you know who agrees with me? George W. Bush, Newt Gingrich and Rick Perry, all of whom sued states for exersizing their constitutional right to conduct and regulate elections.
As a matter of fact, that’s precisely what the Fourteenth Amendment was designed to do. State constitutions are subservient to the federal constitution. Otherwise seccession and segregation would still be viable state options. And Heller v District of Columbia wouldn’t have been decided the way that it was. In your view, D.C and Illinois should be allowed to regulate firearms any way they see fit. Or Mississippi could mandate guns in every home. provided that those states provided for such in their constitutions.
You’re essentially arguing that the states can infringe on liberty interests in areas where the federal government cannot. And I have a long history of arguing that most of what the federal government does, particularly in the area of criminal laws not ennumerated in Article 1 of the Constitution, is unconstitutional. But I’ve never held that the federal constitution is anything other than the supreme law of the land.
I’m also of the opinion that Commerce Clause jurisprudence, from the New Deal onward, is a joke that liberals and conservatives alike have used to extend government power in ways that Founders couldn’t have forseen. But I’m not blind enough to suggest that it isn’t binding precedent, which used to mean something in legal and constitutional circles.
Republicans are just as guilty of extending federal power through the Commerce and Necessary and Proper Clauses as Democrats are. And once you expand federal power, it’s very hard to contract, especially if you don’t want to look foolish. But the same government that can render meaningless the Full Faith and Credit Clause with the Defense of Marriage Act should expect something like the individual mandate. And they should like it, insofar as it allows them to expand government power the next time they control things.
I’m not arguing this on the basis of “the way things oughta be”, I’m arguing it on the basis of the way nearly eight decades of Democrats and Republicans have actually made things. And that’s complicated by a High Court that upends a century’s worth of precedent whenever the urge strikes them. And that ain’t conservative, at least not in the way the dictionary defines it.
Like you, I don’t see how what I’m saying is that hard to understand. And I don’t think that we’d even be having this discussion if you hadn’t endorsed Romney. I opposed the individual mandate when nearly three dozen Republican senators voted for it in 1994, and I oppose it now. You, on the other hand, are opposing one executive from implementing it, while supporting the right of another to do so.
Yes, the federal constitution is the supreme law of the land.
It delegates certain limited, enumerated powers to the federal government, and leaves the residual powers to the states. This is the opposite of Canada, wherein residual powers rest with the federal government.
So yes, damn straight, state assemblies have the plenary powers to restrict more aspects of life than the federal congress does.
Okay, so it isn’t your conservatism that’s in question here, it’s your understanding of the structure of the American division of powers.
I think RomneyCare sucks. It’s also constitutional. I think ObamaCare sucks. It’s possibly/probably unconstitutional.
This is a division of powers question — just like what we saw up here in Canada, with the Securities Reference.
Oh, I think I understand the structure of the American division of powers just fine. In fact, I’ve been citing case law throughout to demonstrate it.
And you’re not arguing that “state assemblies have the plenary powers to restrict more aspects of life than the federal congress does.” You’re arguing that they have the right to restrict liberty rights, such as the right not to buy something.
And prior to the enactment of the Fourteenth Amendment, which you’ve ignored throughout this discussion, you’d be right. But it fundamentally revolutionized individual rights in the federalist system. But it is actually in the federal constitution. Trust me, I checked.
By your own logic, the most powerful assertion of an individual right ever decided by the Supreme Court – Bush v. Gore, which impacted only one person’s rights – was wrongly decided, since the conduct of election laws was specifically vested with the states. And remember, it was Bush, not Gore, that took the case into the federal courts.
Was Brown wrongly decided? How about Heller? Mapp v. Ohio imposed the Fourth Amendment on the states though the Fourteenth. Was that wrong? How about Miranda v. Arizona and the Fifth Amendment? You seem to think that Kelo was decided correctly since there was no federal interest there.
Again, this is a case of wanting to have it both ways. Raich is governing law, but the individual mandate should be struck down. The Massachussets government can impose an individual mandate, but the city of New London cannot take your house, even though Connecticut law allows it to. Oh, and screw state election laws – which actually are in the Constitution – when they work against Republicans.
Raich should be overruled, absolutely.
And property rights are explicitly protected in the constitution, which is why Kelo, which misread “public use” as “public benefit” is wrong.
Ah, but the “public use” clause of the Fifth Amendment is much closer to the “public benefit” intrepretation in Kelo than the Militia Clause is to individual self-protection (which isn’t mentioned at all) is in the Second Amendment as defined in Heller. And the right of Yale cheerleaders to inherit their father’s old job isn’t addressed at all in the Fourteenth Amendment.
But under your rule that “state assemblies have the plenary powers to restrict more aspects of life than the federal congress does”, all of those cases would be wrongly decided, if only because the interests of the states weren’t weighed heavily enough against those of the individual.
Indeed, your school of thought would make First Amendment jurisprudence much easier, given that it beings with “Congress shall make no law ..” It stands to reason then that the states would be free to make all manner of laws. The language in the Second and Fifth Amendments are much more vague.
Moreover, the judicial history shows that the Bill of Rights didn’t apply to the states at all until the ratification of the Fourteenth Amendment, which is precisely why it was necessary. Indeed, the Thirteenth Amendment was meaningless without the Fourteenth.
What I’m getting at is, that in a post-Fourteenth Amendment world, you haven’t explained why Mitt Romney can impair liberty rights and Barack Obama can’t.
I’m arguing that the continued perversion of Article 1 allows them to, but I’m not pretending to like it. You’re in the unfortunate situation of saying that your guy can limit liberty rights, but the President of the United States can’t.
Would you feel better if Obama invoked the Bush’s “worldwide battlefield” case to impose military health care for everyone under the Commander-in-Chief power?
The state government can pass a law mandating you buy auto insurance. The federal government can’t.
This isn’t rocket science.
I mean, if a liberty interest could be invoked, sure, neither level could do it. That argument’s failed. Or it hasn’t been made, which is as good as it failing.
This is a Commerce Clause case.
Perhaps, but the federal government can deny federal highway funds to any state that doesn’t require a mandate to buy auto insurance. Or institute a 21 drinking age.
Are you suggesting that Obama should have denied federal money to states that didn’t impliment an individual mandate? If so, what’s the difference?
I think that it’s an improper use of federal spending, but it’d be upheld as constitutional by any judge in the country. Including Clarence Thomas.
The difference is that one probably is ultra vires vis-a-vis the federal Congress, and the other probably isn’t.
I knew that we’d find consensus somehow. I just knew it!
There. Between us, we’ve figured out a way for Barack Obama to undermine fundamental human liberty, while preserving Mitt Romney’s ability to do the same. And we, a couple of Canadians, did it all nice and constitutional-like, which should make everybody happy.
Except for those fucking Tea Party types, who only seem to be happy when it rains. And that’s one of their better qualities.
Hey, it’s not MY fault Obama, Pelosi, and Reid didn’t subvert the constitution’s intent in the right way.
The way they did it, it’s a coin-flip as to whether it gets struck down — and that opinion poll does matter vis-a-vis how SCOTUS goes. Judges don’t like getting too far afield of public opinion.
Hey, I oppose the individual mandate under all circumstances, i just think that liberal and conservative jurisprudence has essentially made it impossible to get rid of without everybody looking retarded. Nor do I see Roberts, Scalia, Kennedy, Thomas and Alito overruling it with a “Let’s give our presidential nominee a pass” provisio in the opinion mere weeks before the election. At least, I don’t see them doing it with a straight face.
I kinda wish they would, though. It would make for a really fun presidential debate.
I also have a really hard time seeing how they rule against the individual mandate without overturning all of their Commerce Clause jurisprudence from Wickard v. Filburn through Raich. Okay, I can I just have a hard time seeing them doing it with a straight face.
I’m inclined to think of the last time the conservatives went out a limb, in Bush, and would very much like to avoid a similiar shitstorm that obliterates their credibility. If I were to put money on it, I’d say that they uphold. But I wouldn’t put a lot of money on it because they’re really, really activist.
I think polls like this give them the cover to strike it down.
Why did SCOTUS fold on the New Deal in the ’30s? That was where public opinion was, and FDR threatened to pack their bench.
But if they strike it down, that takes away a large reason for independents to vote for Romney/Santorum. And they might then vote for Obama to balance out the Republican House and (soon) Senate.
Waitasecond, you’re saying that the conservative wing of the Supreme Court is essentially going to throw an election, do so consciously, and do so for Obama?
Also, the New Deal majority on the court didn’t come about until after the court-packing plan was defeated in the Senate in ’37 and it didn’t look like FDR was going to run again in 1940.
But if the Supremes are going to play to the political winds, Americans should drop the pretense that they’re impartial, lose their lifetime tenure, and stand for election. And there are few things I openly loathe as much as an elected judiciary.
We’ll see about Congress. It’s entirely possible that the Republican primaries are turning out to be such a disaster that they could take down their chances of taking the Senate. And with child-molestor approval ratings, the GOP could theoreticitally lose the House with a heavily weakened presidential nominee.
I don’t think that’s going to happen, but it certainly could.
It’s also mystifying that you think that Romney would pick Santorum as a running mate. If he still has to play to his own base after winning the nomination, he’s even more fucked than John McCain was, and might lose forty states. Charles Manson would have better numbers with independents than Rick Santorum would.
If I were an American, and Santorum was on the ticket, I’d start “Libertarians for Obama.” If nothing else, I can trust Obama to stay away from my genitals and not be as friendly to the fucking unions.
I meant Romney OR Santorum.
And my pronouns were mixed there. What I meant was that if the conservative wing strikes down the law, it’s more likely Obama wins in the fall.
If Romney goes to Tampa with fewer than 50% of the delegates, I think there’s a decent shot Romney puts Rand Paul on the ticket in a deal with Ron Paul for an endorsement to the Paulite delegates.
If I were Rand Paul – who I don’t think is an idiot – I’d stay as goddamned far as I possibly could from Mitt Romney, who’s looking more and more like a born loser every day. A guy that’s having this much trouble putting away 90s throwbacks like Santorum and Gingrich has little if any hope of beating a money machine like Barack Obama. Mitt’s going to pander to various states about the relative height of their fucking trees, as Obama kicks the shit out of him across the board.
Rand Paul has a future in the party without Mitt Romney. Why throw that away on a lost cause, unless he actually wants to be 2016′s Sarah Palin? And a Libertarian like Paul loses all credibility with his base if he’s forced to defend Romney’s individual mandate.
More importantly, Ron Paul doesn’t have that kind of history in playing well with others. He endorsed Cynthia McKinney over John McCain.
Oh, hey, someone IS raising the liberty argument:
http://hotair.com/archives/2012/02/28/does-the-obamacare-individual-mandate-make-contracts-unenforceable/
Well, that’s the argument that would void a state-level mandate, too… Would it also void car insurance mandates? Probably not — driving a car isn’t on the same level as mere existence. (Though maybe it SHOULD be. :p)