Leahy: No one questions our authority to impose federal insurance mandate

posted at 12:55 pm on October 22, 2009 by Ed Morrissey

Constitution? What Constitution? Patrick Leahy either feigns ignorance or demonstrates it when questioned about the authority for the federal government to mandate the purchase of health insurance. CNS News captures this moment of either forced or natural obtuseness by the chair of the Senate Judiciary Committee (via The College Politico on Twitter):

Q: I just want to know where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?

LEAHY: What — we have plenty of authority.  Are you saying there is no authority?

Q: I’m asking –

LEAHY: Why would you say there is no authority?  I mean, there’s no question there’s authority.  Nobody questions that.

Q: But where — I mean, which –

LEAHY: Where do we have authority to set speed limits on an interstate highway?

Q: Well, the states do that.

LEAHY: No, no, the federal government does that.

Well, actually, they don’t set those limits now, although they did in the past.  The answer to that question is that the federal government built the interstate highway system, and that Americans have the option to use them or not.   The government does not make driving on these highways mandatory, nor does it make the purchase of gasoline (which has a federal tax component) mandatory, either.

In fact, plenty of people question whether the Constitution allows the federal government the authority to mandate any kind of purchase.  It gives C0ngress the authority to regulate interstate commerce, but that wouldn’t apply at all — because the federal government blocks the interstate sale of health insurance at the moment.

At least a few people have been asking this question for months.  Apparently, Senator Leahy is a little too busy in his ivory tower to listen.


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This is how you go down the road to two bit tin pot banana republic which is exactly what the Oba-Mao as tyrant wants.

I seem to remember the horror of Bush snooping on library cards, and now we are told just turn over all your medical records to the government. I wonder, where are the howlers now? The ACLU?

Now we have pay czars dictating salaries, and not a whimper? WHY?

tarpon on October 22, 2009 at 1:31 PM

therefore they can force us to buy it.

Economic growth is just a flick of the wrist away.

lorien1973 on October 22, 2009 at 1:29 PM

It starts with insurance, then cars (“environmental autos”), green light bulbs…they can outlaw most anything and force you to buy another…or make the other so expensive that you are forced to buy the other…like Cap and Trade…

right2bright on October 22, 2009 at 1:32 PM

While reading this:

LEAHY: What — we have plenty of authority. Are you saying there is no authority?

Q: I’m asking –

LEAHY: Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that

I couldn’t help but think of this, from ‘The Caine Mutiny’:

“Ahh, but the strawberries that’s… that’s where I had them. They laughed at me and made jokes but I proved beyond the shadow of a doubt and with… geometric logic… that a duplicate key to the wardroom icebox DID exist, and I’d have produced that key if they hadn’t of pulled the Caine out of action. I, I, I know now they were only trying to protect some fellow officers… “

jrlingreenbay on October 22, 2009 at 1:32 PM

WashJeff on October 22, 2009 at 1:25 PM

No, sorry, and I don’t mean this in a snarky tone. Beyond the preamble, the ratifying conventions bypassed the state governments. The Federalists were quite clear that it was not the state governments ratifying the Constitution, but the people of the states. I believe there is a mention in the Federalist Papers somewhere. The issue had to go to the people via ratifying conventions to keep in line with the current thoughts about popular sovereingty at the time. Go look at Inventing the People by Edmund Morgan.

The Constitution is a pact between the various peoples of the United States to create a federal government in conjunction with their state governments–federalism. Only the passage of time and the Civil War had diminished the relative importance of the states–but legally, the old way is still there, ready to be picked up again once we decide that our Constitution is written and not unwritten (i.e., able to be what Senator Leahy wants it to be).

Horatius on October 22, 2009 at 1:32 PM

(202) 224-4242 =Leahy’s office number. Heard the phones ringing off the hook in background. I was very polite to the female phone operator and she listened to me rail. I said, the senator needs to get off his high horse and go back to the drawing board on constitutional mandates, that he’s what’s wrong with our government today–long term incumbent and completely out of touch with the american public. I feel tons better.

RepubChica on October 22, 2009 at 1:32 PM

In order to produce maximum economic growth at a time of recession, why doesn’t the government mandate we all buy stuff. Everything is regulated in some sense, therefore they can force us to buy it.

Economic growth is just a flick of the wrist away.

lorien1973 on October 22, 2009 at 1:29 PM

–Because voters will get pissed off. I tried to post links to five articles from lawyers/law professors about the constitionality of the mandate but screwed up. Will try again shortly. Bottom line is that no one but Rivkin and Casey (the two former DOJ lawyers) thinks there is any serious question about its being constitutional.

Jimbo3 on October 22, 2009 at 1:33 PM

Here is what I found about flood insurance.

http://www.floodsmart.gov/floodsmart/pages/about/when_insurance_is_required.jsp

What to Expect

Congress mandated federally regulated or insured lenders to require flood insurance on properties that are located in areas at high risk of flooding.

Below you’ll find the insurance requirements for your flood risk area. If you’re not sure which area your property is in, take your Risk Profile to learn more.

Residents of High-Risk Areas

Homes and buildings in high-risk flood areas with mortgages from federally regulated or insured lenders are required to have flood insurance. These areas have a 1% or greater chance of flooding in any given year, which is equivalent to a 26% chance of flooding during a 30-year mortgage.

So you can avoid flood insurance if you don’t get a loan that is federally insured or get a loan from a firm that is not federally regulated. I’m guessing it is pretty difficult to find a loan company that is not subject to federal regulation in some way. Of course, nobody forces you to get a loan to buy property in the first place.

Mark1971 on October 22, 2009 at 1:33 PM

I’m reading Atlas shrugged at the moment and I just cant help being struck by the strong similarities between certain aspects of the storey line in the book and what is going on at the moment especially as it relates to the Governments role in people’s lives and the role that special interests play in shaping the political agenda.

Hellrider on October 22, 2009 at 1:34 PM

How can someone SWEAR to God to defend the Constitution of the US… and yet be so clueless as to the INTENT of that document?

Romeo13 on October 22, 2009 at 1:34 PM

“Power corrupts. Absolute power corrupts absolutely.”

It’s past time for the worst congress ever to be reigned in. We are getting a “change,” from liberty to tyranny.

Star20 on October 22, 2009 at 1:36 PM

The answer to that question is that the federal government built the interstate highway system, and that Americans have the option to use them or not. The government does not make driving on these highways mandatory, nor does it make the purchase of gasoline (which has a federal tax component) mandatory, either.

Sorry Ed, the Feds never set the speed limit, even on the interstate highways. What they did do was to tell that states that unless the states reduced the speed limits to 55mph, the states would lose 100% of their federal highway funds.

MarkTheGreat on October 22, 2009 at 1:37 PM

The Constitution is just a moldy old document written by rich white meanies anyway.

We now have a funky fresh NEW constitution and it’s simple.

“We the Democrat Party will do whatever the hell we want, to whoever the hell we want, whenever we want.”

Written by Founding Father Richard Daley.

NoDonkey on October 22, 2009 at 1:37 PM

OT: Anyone seen this yet?

LibTired on October 22, 2009 at 1:37 PM

The McCain/Feingold bill regulates free speech. It doesn’t require people to exercise free speech. In general, Congress (and the state legislatures) are allowed to regulate to varying extents our Constitutional freedoms. So, for instance, it’s constitutionally ok to restrict the areas in which people can protest or picket if it doesn’t significantly interfere (or materally interfere or something similar, I forget which) with their rights to free speech.

Jimbo3 on October 22, 2009 at 1:37 PM

–Because voters will get pissed off.

Jimbo3 on October 22, 2009 at 1:33 PM

If the voters get pissed, they could just mandate they buy therapy. Fixes the problem rather easily doesn’t it?

Seriously, do tell me what congress can’t mandate you go? Anything? Are they our lords and masters?

lorien1973 on October 22, 2009 at 1:38 PM

Yet another example that the stupid are running this nation, and that the divide they are creating between themselves and the populace is getting wider and deeper by the day.

Bishop on October 22, 2009 at 1:38 PM

While reading this:

LEAHY: What — we have plenty of authority. Are you saying there is no authority?
Q: I’m asking –
LEAHY: Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that

I couldn’t help but think of this, from ‘The Caine Mutiny’:

“Ahh, but the strawberries that’s… that’s where I had them. They laughed at me and made jokes but I proved beyond the shadow of a doubt and with… geometric logic… that a duplicate key to the wardroom icebox DID exist, and I’d have produced that key if they hadn’t of pulled the Caine out of action. I, I, I know now they were only trying to protect some fellow officers… “

jrlingreenbay on October 22, 2009 at 1:32 PM

I’m wondering if Leaky Leahy walks around with ball bearings….

Juno77 on October 22, 2009 at 1:38 PM

LibTired on October 22, 2009 at 1:37 PM

Even Ace has that up. It’s that old. LOL

lorien1973 on October 22, 2009 at 1:38 PM

Think of this one… No one really owns their land. If you fail to pay even one cent of your property tax (extortion) you’ll be slapped with a lein and your land taken from you.

hogfat on October 22, 2009 at 1:40 PM

Doesn’t the federal government already require some people to buy flood insurance?

Mark1971 on October 22, 2009 at 1:09 PM

Only if you are trying to get a federally backed mortgage.

MarkTheGreat on October 22, 2009 at 1:40 PM

Bottom line is that no one but Rivkin and Casey (the two former DOJ lawyers) thinks there is any serious question about its being constitutional.

Jimbo3 on October 22, 2009 at 1:33 PM

Which is entirely FUBAR, that the government could force you to spend your money on a product or service you may neither want nor need.

But I still question the legality, because by the line of reasoning you’re leading up to, we could literally be forced to buy anything. Anything. Just so long as the government thinks the voter reaction won’t be too overwhelming. If that has somehow become constitutional there’s a serious problem.

BadgerHawk on October 22, 2009 at 1:40 PM

Leahy is vastly afraid of a challenge, and should be.

This whole deal stinks, and it isn’t about controlling healthcare costs or quality. It’s about control.

Bama’s election has coaxed the would-be tyrants and marxists to drop all pretense and show their real flags. This may be about the only good thing that comes of his tenure as POTUS.

Harry Schell on October 22, 2009 at 1:41 PM

Even Ace has that up. It’s that old. LOL

lorien1973 on October 22, 2009 at 1:38 PM

Nine minutes. Ace should be putting up a second one in about an hour.

LibTired on October 22, 2009 at 1:42 PM

File this under the Too Good To Check Category, but got this forward today by e-mail:

GUESS WHICH ONE……..
Even if you arent a sports fan this is very interesting!

? ? ? ? ? ? ? ? ?
36 have been accused of spousal abuse
7 have been arrested for fraud
19 have been accused of writing bad checks
117 have directly or indirectlybankrupted at least 2 businesses
3 have done time for assault
71repeat71
cannot get a credit card due to bad credit
14 have been arrested on drug-related charges
8 have been arrested for shoplifting

21currently are defendants in lawsuits,
and
84have been arrested for drunk driving
in the last year
Can
you guess which organization this is?
NBA Or NFL
?
Give up yet?
Scroll down,

Neither,
it’s the 535 members of the
United States Congress

Christian Conservative on October 22, 2009 at 1:42 PM

http://lawprofessors.typepad.com/conlaw/2009/08/the-constitutionality-of-the-current-health-care-proposal.html.

http://volokh.com/2009/09/20/does-a-federal-mandate-requiring-the-purchase-of-health-insurance-exceed-congress-powers-under-the-commerce-clause.

For some reason, I’m having problems posting five links. Here are the two most significant ones. U of California Davis’ dean also wrote an article in support of the mandate’s Constitutionality.

Jimbo3 on October 22, 2009 at 1:44 PM

Leahy to self: “God, what a dumbass.”

That’s the first time the dude’s been right in years.

Three words: UNCONSTITUTIONAL.

hillbillyjim on October 22, 2009 at 1:44 PM

The McCain/Feingold bill regulates free speech. It doesn’t require people to exercise free speech. In general, Congress (and the state legislatures) are allowed to regulate to varying extents our Constitutional freedoms. So, for instance, it’s constitutionally ok to restrict the areas in which people can protest or picket if it doesn’t significantly interfere (or materally interfere or something similar, I forget which) with their rights to free speech.

Jimbo3 on October 22, 2009 at 1:37 PM

How does that argument parallel being forced to buy health insurance? One is the government regulating/restricting a constitutional right. The other is the government literally telling you it has the authority to tell you what you have to spend your money on.

BadgerHawk on October 22, 2009 at 1:44 PM

In fact, plenty of people question whether the Constitution allows the federal government the authority to mandate any kind of purchase. It gives C0ngress the authority to regulate interstate commerce, but that wouldn’t apply at all — because the federal government blocks the interstate sale of health insurance at the moment.

Leahy said no one questions it! Now shut up and do what you are told this minute!

petunia on October 22, 2009 at 1:45 PM

LibTired on October 22, 2009 at 1:42 PM

I’m just bustin’ on ya. Some people have put that up already. I’m half surprised Ed hasn’t done an entry on it yet.

Beaten to the punch by Ace? Wow.

lorien1973 on October 22, 2009 at 1:45 PM

Vee haf zee azority! Shtop kvestionink us!!

crazy_legs on October 22, 2009 at 1:46 PM

“If the US Supreme Court upheld the McCarran-Ferguson Act, in which Congress authorized the states to regulate insurance, then the US Congress has the power to regulate insurance under the US Constitution.” –Jimbo

Wrong-o! MFA merely exempts insurance from federal anti-trust laws, it does not in any way regulate insurance. In fact, it expressly recognizes that insurance, as currently constituted, should not be considered interstate commerce (which would bring it under the commerce clause), because regulation is reserved (not delegated) to the states.

More importantly, the issue isn’t regulation of insurance, but extortion against individual citizens. That, even our overblown, bloated, out-of-control imperial federal gummint absolutely does not have the right or legal/Constitutional power to do. Will they do it with various shady flanking maneuvers and by ignoring the law, like they have with the drinking age and speed limits? Maybe. Maybe they’ll just stage a few Waco’s (what was the federal crime there, btw–if you say automatic weapons or child abuse–latter, a state, not federal crime–think again, not even enough evidence to support a search warrant–crickets chirping) around the country to make sure no one questions them again. The larger question is will we as citizens continue to allow this creeping tyranny in what was once a free nation, capable of real advancement through individual responsibility and innovation.

Ay Uaxe on October 22, 2009 at 1:46 PM

Jimbo3 on October 22, 2009 at 1:37 PM

Wow. Just wow.

lorien1973 on October 22, 2009 at 1:46 PM

Horatius on October 22, 2009 at 1:32 PM

I read you response and interpret it as the people of the states, through their state governments, needed to ratify the constitution. With this interpretation of your response, I do not see much difference.

I see the primary purpose of the federal government, as envisioned by the founders, is to serve the states by protected the states from foreign threats and making sure the states play nice together regarding commerce. Until the Bill of Rights was added, the constitution had very little to do with the individual. I think that was viewed as a matter between the people and their state.

WashJeff on October 22, 2009 at 1:46 PM

lorien1973 on October 22, 2009 at 1:45 PM

Are you saying I’m not the best linker that ever linked a link? F. U.

LibTired on October 22, 2009 at 1:48 PM

But I still question the legality, because by the line of reasoning you’re leading up to, we could literally be forced to buy anything. Anything. Just so long as the government thinks the voter reaction won’t be too overwhelming. If that has somehow become constitutional there’s a serious problem.

–I think it probably would have to be legitimately connected to something which the US Congress has constitutional authority to control. So, for instance, could the US Congress constitutionally require only cars that get more than 35 miles an hour gas milage to be allowed to use any interstate highway? Probably. Could the US Congress require everyone to file their US tax returns electronically? Probably.

Jimbo3 on October 22, 2009 at 1:48 PM

Jimbo3 on October 22, 2009 at 1:37 PM

Wow. Just wow.

lorien1973 on October 22, 2009 at 1:46 PM

We’ve gone from the Constitution providing for rights that the government generally can’t infringe on, past the usual leftist argument that it somehow magically allows for positive rights that the government has a responsibility to provide, and all the way to government being able to heavily restrict/regulate/manage your entire life.

BadgerHawk on October 22, 2009 at 1:49 PM

OT: Anyone seen this yet?

LibTired on October 22, 2009 at 1:37 PM

I hadn’t seen it. Well that is good news.

Nice to know you can get so much bang for your buck these days.

Can we repeal that awful bill when the Republicans take congress in 2010?

If that was the platform they’d win no doubt.

petunia on October 22, 2009 at 1:50 PM

Romeo13 on October 22, 2009 at 1:34 PM

Let me try to shed a little light here for ‘ya. As we learned from Mr. Clinton, swearing an oath means nothing to a liberal. Whether swearing fidelity to a spouse or a nation, an oath is just words, sort of like “Have a nice day”. And as far as the Constitution, liberals have been telling us for decades that it’s a “living, changing” document, ie, “We’re in power so we’ll decide what (if anything) it means.” And as far as that “God thing”, liberals might as well swear to the Easter Bunny or the Tooth Fairy. Liberals with whom I’ve dealt appear to think that “God” fits into one of three categories: 1)totally imagined, 2)whatever THEY want he/she/it to be, or 3)themselves. I pity them, when at some future date they will be compelled to deal with the one true G_D.

oldleprechaun on October 22, 2009 at 1:51 PM

–I think it probably would have to be legitimately connected to something which the US Congress has constitutional authority to control. So, for instance, could the US Congress constitutionally require only cars that get more than 35 miles an hour gas milage to be allowed to use any interstate highway? Probably. Could the US Congress require everyone to file their US tax returns electronically? Probably.

Jimbo3 on October 22, 2009 at 1:48 PM

By the line of reasoning you started down on Page 1 (and provided linked sources arguing the same thing), almost nothing would fall outside of the government’s authority to mandate.

I utterly reject that.

Are you a lawyer? Because I’m having a difficult time believing anyone but a lawyer could line up behind that premise.

BadgerHawk on October 22, 2009 at 1:51 PM

There’s already precedent for forcing us to pay for health insurance – ever been to divorce court!?!

Liberty is dead, you morons. Sitting back and yacking about it, showing up en masse on the White House lawn, how’s that working for you?

I’ve been victimized repeatedly in Family Court, seen the law, actual statutes, violated routinely, and even when winning hearings (and my case, funnily enough) heard decisions that defy logic, the law and reason.

LIBERTY IS DEAD – IF SHE EVER LIVED!!!

klickink.wordpress.com on October 22, 2009 at 1:51 PM

How can someone SWEAR to God to defend the Constitution of the US… and yet be so clueless as to the INTENT of that document?

Romeo13 on October 22, 2009 at 1:34 PM

It’s all very Clintonian. They swore to defend the Constitution which is very safely stored at the National Archives, thank you very much. The ideas contained within the Constitution- not so much if it interferes with the filthy lying coward’s radical agenda.

highhopes on October 22, 2009 at 1:51 PM

Jimbo3 on October 22, 2009 at 1:48 PM

Seriously. Please do tell me something that government -can’t- make me do.

Anything. Really.

lorien1973 on October 22, 2009 at 1:52 PM

Come and make me pay health insurance Mr. Leahy.

Come and make me.

The Ronin Edge on October 22, 2009 at 1:49 PM

Oh no. That’s Jimbo’s job. :)

NathanG on October 22, 2009 at 1:52 PM

http://lawprofessors.typepad.com/conlaw/2009/08/the-constitutionality-of-the-current-health-care-proposal.html.

http://volokh.com/2009/09/20/does-a-federal-mandate-requiring-the-purchase-of-health-insurance-exceed-congress-powers-under-the-commerce-clause.

For some reason, I’m having problems posting five links. Here are the two most significant ones. U of California Davis’ dean also wrote an article in support of the mandate’s Constitutionality.

Jimbo3 on October 22, 2009 at 1:44 PM

As volokh seems to note, its not that the Constitution supports a mandate, but, that the Court might well impose on us.

Chris_Balsz on October 22, 2009 at 1:52 PM

Ay, the Act did two things:

“The McCarran-Ferguson Act of 1945 (15 U.S.C.A. § 1011 et seq.) gives states the authority to regulate the “business of insurance” without interference from federal regulation, unless federal law specifically provides otherwise.

The act provides that the “business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.” ……

The McCarran-Ferguson Act does not prevent the federal government from regulating the insurance industry. It provides only that states have broad authority to regulate the insurance industry unless the federal government enacts legislation specifically intended to regulate insurance and to displace state law. The McCarran-Ferguson Act also provides that the SHERMAN ANTI-TRUST ACT OF 1890, 15 U.S.C.A. § 1 et seq., the CLAYTON ACT OF 1914, 15 U.S.C.A. § 12 et seq., and the Federal Trade Commission Act of 1914, 15 U.S.C.A. §§ 41–51, apply to the business of insurance to the extent that such business is not regulated by state law.

http://law.jrank.org/pages/8497/McCarran-Ferguson-Act-1945.html

Jimbo3 on October 22, 2009 at 1:52 PM

No Leahy,, you pompous, ignorant, windbag. Congress does NOT have the authority to pass ANY healthcare legislation and doing so blatantly violates the U.S. Constitution. Article 1, Section 8, Clauses 1 through 17 defines the authority to which Congress can pass legislation and clause 18 gives Congress the authority to pass laws ONLY pertaining to the previous 17 clauses in Article 1, Section 8 or where CLEARLY DEFINED and GRANTED in the Constitution. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. On Leahy’s answer to speed limits, the STATES set speed limits, you lying buffoon.
We even see instances where lying politicians say that claim that the Federal Government requires mandatory insurance for cars which is a LIE, the STATES have jurisdiction.
90% of the legislation passed by Congress in the last 100 years is blatantly unconstitutional and thus ILLEGAL.

nelsonknows on October 22, 2009 at 1:54 PM

Since this guy gets repeatedly re-elected, what does that say about the people of Vermont?

olesparkie on October 22, 2009 at 1:55 PM

Seriously. Please do tell me something that government -can’t- make me do.

Anything. Really.

lorien1973 on October 22, 2009 at 1:52 PM

He’s saying that the government literally can do just about anything. I don’t know to what extend he agrees with it, but from a legal standpoint he cartainly seems to believe that’s the case.

BadgerHawk on October 22, 2009 at 1:56 PM

I am also struck, by Jimbo’s cites, that somebody can obtain a Professorship in the United States in any subject, and state publicly that one has no constitutional freedom to refrain from purchasing something.

Chris_Balsz on October 22, 2009 at 1:57 PM

Seriously. Please do tell me something that government -can’t- make me do.

Anything. Really.

lorien1973 on October 22, 2009 at 1:52 PM

Let me add something. Tell me what the government cannot make me do without giving a “it’s not politically viable” type answer.

WashJeff on October 22, 2009 at 1:57 PM

I am a lawyer, Badgerhawk.

I know you don’t like the answer (and many people would agree with you), but I haven’t found any lawyer/law professor (other than the two DoJ lawyers who wrote the first news article) who seriously argues that the mandate is unconstitutional. The problem is that it’s supported by a line of US Supreme Court cases since the 1930s which uphold a broad use of the commerce clause by the US Congress.

Jimbo3 on October 22, 2009 at 1:58 PM

How can someone SWEAR to God to defend the Constitution of the US… and yet be so clueless as to the INTENT of that document?

Romeo13 on October 22, 2009 at 1:34 PM

He’s not clueless.

ncborn on October 22, 2009 at 2:01 PM

“…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…

RadClown on October 22, 2009 at 2:02 PM

I am a lawyer, Badgerhawk.

That explains a lot.

NoDonkey on October 22, 2009 at 2:02 PM

Jimbo3 on October 22, 2009 at 1:58 PM

I haven’t found but a handful of “lawyers” or judges that could actually READ the Constitution, including the Supreme Court.

nelsonknows on October 22, 2009 at 2:02 PM

Seriously. Please do tell me something that government -can’t- make me do.

Anything. Really.

lorien1973 on October 22, 2009 at 1:52 PM

–The US Congress couldn’t force you to attend church/synagogue(sic) and the US Congress couldn’t force you to protest or exercise your free speech right. The US Congress also can’t force you to do the things reserved to the states under the 10th amendment, although the scope of those things isn’t real clear. Sorry, guys, I’m having a hard time thinking of others. I’m not sure, for instance, that the US Congress couldn’t force you to vote in federal elections (or pay a penalty).

Jimbo3 on October 22, 2009 at 2:03 PM

Rare footage: Leahy as a child

John the Libertarian on October 22, 2009 at 2:04 PM

The problem is that it’s supported by a line of US Supreme Court cases since the 1930s which uphold a broad use of the commerce clause by the US Congress.

Jimbo3 on October 22, 2009 at 1:58 PM

This is why so many people hate lawyers. How something this insane could become established enough to be considered constitutional boggles the mind.

I’ll defer to you on the actual legal precedent, but it’s still insane.

BadgerHawk on October 22, 2009 at 2:04 PM

Jimbo3 on October 22, 2009 at 1:58 PM

Why don’t you make a call to the ACLJ and the ACRU, I did and every attorney at BOTH of these organizations state that national healthcare legislation is unconstitutional.

nelsonknows on October 22, 2009 at 2:06 PM

The General Welfare Clause can only be understood in terms of the Enumerated Powers of Art. I Sec. 8.

Nothing about commie healthcare in Art. I Sec. 8.

Akzed on October 22, 2009 at 2:06 PM

I’m reading Atlas shrugged at the moment and I just cant help being struck by the strong similarities between certain aspects of the storey line in the book and what is going on at the moment especially as it relates to the Governments role in people’s lives and the role that special interests play in shaping the political agenda.

Hellrider on October 22, 2009 at 1:34 PM

I noticed that too, but back in January. Rand was actually writing about the things FDR did to the economy.

P.S. All the good economic observations are done by the end of part II. Part III is just a long rambling revenge fantasy with biblical influences.

Count to 10 on October 22, 2009 at 2:06 PM

Jimbo3 on October 22, 2009 at 2:03 PM

I am certainly grateful that the Founding Fathers and the Constitution rescued us from being ruled by inbred, incompetent and corrupt monarchs.

We’ve advanced to the point where we’re ruled by inbred, corrupt and incompetent elected officials.

Remind me again why we even bother to hold elections?

NoDonkey on October 22, 2009 at 2:06 PM

the constitution had very little to do with the individual. I think that was viewed as a matter between the people and their state.

WashJeff on October 22, 2009 at 1:46 PM

First, I want to reiterate that the Federal compact essentially bypassed the state governments–all they did was agree to call ratifying conventions (I cannot speak with certainty for all 13 states, especially the situation in North Carolina and Rhode Island). I am so insistent upon this because the Federalists themselves were. The Constitution is a pact between the people of the various states, not the states. The people thus ratified a system of divided sovereignty–some of their sovereignty they deigned to the states, and some to the new federal government.

So in that regard, we come back to the same conclusion–the states are in some respects sovereign. For example, California has a population of 30 million today, the size of the US at the time of the Civil War. Many states are the size of the US at the time of the Revolution and Federalist period (2-5 million). I simply reject the argument that there is neither talent nor ability in such population aggregations to do that which those at the national level think needs to be done. Its just harder for them to do at the local than the national, as they have to capture the opinions of many more people, instead of 50% of 435 and 60% of 100. To which point I really don’t care.

Healthcare and the insurance is a matter for the states, and requires no federal response other than interstate commerce–which is a legitimate cause of action by the federal government. All else is government becoming too imperial. 536 people (plus nine justices) simple cannot determine every feature of life for 300 million people. It makes a mockery of the idea of a self-governing Republic, and naturally moves the people to a inclination to servitude.

Having said that, you are absolutely right. Some arguments used to defend the lack of a bill of rights included (if my memory serves) the fact that most of the states had them, and the federal government was limited in its power and thus unlikely to impede upon them. Obviously, this argument did not wash and a bill of rights had to be included.

I think the real reason the bill of rights wasn’t included was because the Constitutional Convention just ran out of time, plus it was relatively non-controversial territory compared to the structure of the federal government.

Horatius on October 22, 2009 at 2:07 PM

I know you don’t like the answer (and many people would agree with you), but I haven’t found any lawyer/law professor (other than the two DoJ lawyers who wrote the first news article) who seriously argues that the mandate is unconstitutional. The problem is that it’s supported by a line of US Supreme Court cases since the 1930s which uphold a broad use of the commerce clause by the US Congress.

Jimbo3 on October 22, 2009 at 1:58 PM

LOL. And lawyers and law school professors actually argue, with a straight face, that anything bought or sold is part of commerce and, therefore, subject to the federal government doing anything it wants with it – including mandates of any sort and the federal government opening up a company and jumping into the sector. That’s just insane and such (lack of) reasoning would only pass in law school or one of the soft-science departments where soft heads infest them.

You people are determined to break this nation. Don’t worry. You’re probably going to get your wish. Of course, you will then have to live with the hell of your creation. Couldn’t happen to a nicer bunch … Morons.

progressoverpeace on October 22, 2009 at 2:08 PM

The McCarran-Ferguson Act of 1945 (15 U.S.C.A. § 1011 et seq.) gives states the authority to regulate the “business of insurance” without interference from federal regulation, unless federal law specifically provides otherwise.

The act provides that the “business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.” ……

The McCarran-Ferguson Act does not prevent the federal government from regulating the insurance industry. It provides only that states have broad authority to regulate the insurance industry unless the federal government enacts legislation specifically intended to regulate insurance and to displace state law.

Jimbo, you seriously need to take a logic class or buy a book. Your quotes and explaination are about states rights, and federal laws supplanting those rights where there’s overlap. How, on God’s green earth, do you make the following leaps:

1) “States have the right to regulate the business of insurance, therefore the Federal government does also.” The Federal Gov’t (is supposed to) stick to it’s ennumerated rights. THAT’S THE POINT. Beyond ennumerated federal rights, states may regulate in anyway they see fit within their own state constitution.

2) “Regulation of the business of insurance = power of the state or federal government to require the people to engage in business with insurance companies”. I don’t even know where to go with this line of reasoning.

NickelAndDime on October 22, 2009 at 2:09 PM

Let me suggest you ask Ed to get Hugh Hewitt on his show. He’s a Constitutional law professor at a private law school in California and might have more ideas than I do about what the US Congress couldn’t constitutionally require you to do.

I have to warn you, though, that Wikipedia says that one of Hugh’s regular contributors (who I mistakenly wrote was dean at another U of Cal law school), wrote the attached in support of the constitutionality of the individual mandate:

http://www.latimes.com/news/opinion/la-oe-chemerinsky6-2009oct06,0,6904553,print.story.

Jimbo3 on October 22, 2009 at 2:09 PM

The link doesn’t work for some reason.

Here’s the bottom line:

Opinion
The constitutionality of healthcare
There’s nothing illegal about requiring Americans to buy medical insurance.
By Erwin Chemerinsky

October 6, 2009

Are the healthcare bills pending in the House and Senate unconstitutional?

That’s what some of the bills’ critics have alleged. Their argument focuses on the fact that most of the major proposals would require all Americans to obtain healthcare coverage or pay a tax if they don’t. Those too poor to afford insurance would have their health coverage provided by the state.

Although the desirability of this approach can be debated, it unquestionably would be constitutional.

Jimbo3 on October 22, 2009 at 2:10 PM

Jimbo3 on October 22, 2009 at 1:58 PM

The commerce clause is not a blank check, although all of the high-minded, well-meaning liberals keep acting as if it were so.

Lawyer or no, you should be able to draw a few clear lines by reading the Constitution. No nuance necessary.

hillbillyjim on October 22, 2009 at 2:11 PM

nelsonknows on October 22, 2009 at 2:02 PM

Yeah, only a bunch of lawyers could declare McCain Feingold as Constitutional…

Constitution explicitly says Congress shall pass no law Infinging on Free Speech…

But McCain Feingold, a law passed by Congress, does just that… and the Supremes found it Constitutional because they decided (ie the Government) that it was for the “public good” to ignore somthing explictly written in the Constitution…

As I said earlier… when one side ignores, or abrogates a contract… that contract no longer exists…

Romeo13 on October 22, 2009 at 2:12 PM

Akzed on October 22, 2009 at 2:06 PM

If I may add, The “General Welfare Clause” only pertains to any of the enumerated powers granted in Article 1, Section 8 and has no jurisdiction elsewhere.

nelsonknows on October 22, 2009 at 2:12 PM

‘Jimbo 3′ is an ambulance chaser–that’s a Stunning Surprise

Meanwhile Leahy is a fascist, Pure and Simple. He should read history to find out what often happens to fascists, in re Mussolini circa May 1945.

Janos Hunyadi on October 22, 2009 at 2:13 PM

Romeo13 on October 22, 2009 at 2:12 PM

Exactly, and well put.

nelsonknows on October 22, 2009 at 2:14 PM

Chermerinsky is a reliable kook.

Chris_Balsz on October 22, 2009 at 2:14 PM

Why don’t you make a call to the ACLJ and the ACRU, I did and every attorney at BOTH of these organizations state that national healthcare legislation is unconstitutional.

nelsonknows on October 22, 2009 at 2:06 PM

–The ACLJ generally deals with social issues (prayer in school or the military or other free speech issues, use of public land for prayer, abortion). I don’t see anything on their website that would suggest they have a position on this matter. If you want to send them an email and post their response here, I’d appreciate that.

I’ve got to go now. Sorry. Back in about 3 hours.

Jimbo3 on October 22, 2009 at 2:15 PM

Jimbo 3′ is an ambulance chaser–that’s a Stunning Surprise

Meanwhile Leahy is a fascist, Pure and Simple. He should read history to find out what often happens to fascists, in re Mussolini circa May 1945.

Janos Hunyadi on October 22, 2009 at 2:13 PM

–I’m a corporate lawyer, not a litigator.

Jimbo3 on October 22, 2009 at 2:15 PM

Opinion
The constitutionality of healthcare
There’s nothing illegal about requiring Americans to buy medical insurance.
By Erwin Chemerinsky

October 6, 2009

Rule #1, look at the source. Chemerinsky is futher left than Krugman on economics.

NickelAndDime on October 22, 2009 at 2:18 PM

Chermerinsky isn’t a kook. He’s a respected, if reliably statist-leftist, legal academic. People needn’t be kooks to be wrong.

Centerfire on October 22, 2009 at 2:19 PM

A corporate lawyer who wants Uncle Sugar to run 1/6th of America’s economy? Huh?

kingsjester on October 22, 2009 at 2:19 PM

Jimbo3 on October 22, 2009 at 2:10 PM

You’re not very good at posting links.

BadgerHawk on October 22, 2009 at 2:20 PM

A corporate lawyer who wants Uncle Sugar to run 1/6th of America’s economy? Huh?

kingsjester on October 22, 2009 at 2:19 PM

And who thinks that the Constitution (founded on the principle of limited federal government) allows it. Jimbo is a retard.

progressoverpeace on October 22, 2009 at 2:21 PM

Jimbo is a retard.

progressoverpeace on October 22, 2009 at 2:21 PM

No he’s not. He just has an amzingly broad interpretation (which he backs up with actual legal case examples) of what powers the government has over us.

I completely reject his line of thinking on the matter, but there’s nothing retarded about it.

BadgerHawk on October 22, 2009 at 2:25 PM

Where in the Constitution is the authority given to the federal government to require a citizen to purchase anything?

I can’t seem to find it in my copy. I must have misplaced my rose-colored liberal glasses.

hillbillyjim on October 22, 2009 at 2:26 PM

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn’t a Jew.

When they came for me,
there was no one left to speak out.

nelsonknows on October 22, 2009 at 2:27 PM

I have to warn you, though, that Wikipedia says that one of Hugh’s regular contributors (who I mistakenly wrote was dean at another U of Cal law school), wrote the attached in support of the constitutionality of the individual mandate:

http://www.latimes.com/news/opinion/la-oe-chemerinsky6-2009oct06,0,6904553,print.story.

Its a shame, because Chemerinsky conflates several lines of reasoning in his short piece, in order to get to the outcome he wants. He’s far smarter than that.

Congress probably does have the broad authority to levy taxes against uninsured, but the claimed power under the Commerce Clause to mandate the purchase of a product is perverse, even if supported later by SCOTUS.

If it is accepted as constitutional, one can imagine a whole host of ills–why not a Government Mandate that everyone with an income of $250,000 or more purchase two cars from GM?

If its upheld, my longstanding belief that Wickard caused the downfall of the Republic will be even more apt.

Revenant on October 22, 2009 at 2:27 PM

I completely reject his line of thinking on the matter, but there’s nothing retarded about it.

BadgerHawk on October 22, 2009 at 2:25 PM

It’s retarded. Anyone who tries to defend someone else proving (or ruling) that 2+2=8 is a retard. There are also decisions stating that CO2 is “pollution” and that Anthropogenic Catastrophic Global Warming is true. That doesn’t make it true and anyone who cites the case law to back up claims for global warming is a retard.

progressoverpeace on October 22, 2009 at 2:29 PM

Jimbo is a retard.

progressoverpeace on October 22, 2009 at 2:21 PM
No he’s not. He just has an amzingly broad interpretation (which he backs up with actual legal case examples) of what powers the government has over us.

I completely reject his line of thinking on the matter, but there’s nothing retarded about it.

BadgerHawk on October 22, 2009 at 2:25 PM

Actualy, I think he is a product of the mindset of Lawschools… they really believe this stuff…

Lawschools teach that subsequent Rulings, even when based on a horribly flawed origional ruling, should not be overturned.

They don’t believe, as standard logic dictates, that a Theorem based on a flawed premise, is logicly consistant even though untrue… They have complicated the Law to the place where common sense, or clear writings, no longer have any meaning.

Romeo13 on October 22, 2009 at 2:31 PM

For Anyone questioning the ACLJ calling National Healthcare Legislation unconstitutional:
http://www.aclj.org/Multimedia/Archive.aspx?t=5238ADC0-FEF9-473D-A109-12D7E5CDC348

nelsonknows on October 22, 2009 at 2:33 PM

I’ve got to go now. Sorry. Back in about 3 hours.

Jimbo3 on October 22, 2009 at 2:15 PM

for your Sins, shyster, say ten Hail Marys and ten Our Fathers, after Truly Repenting. If you’re not Catholic, talk to Jesus or Whoever about a new line of work

Being a solicitor rather than a barrister is no excuse: You’re a Lib-Demo who sees the power of government as a Positive Good and its growth as inevitable.

Janos Hunyadi on October 22, 2009 at 2:33 PM

The government could force you to buy toothpaste or to buy drugs.

WTF?!

I think someone’s been taking a few too many “drugs”

Fatal on October 22, 2009 at 2:38 PM

Lawschools teach that subsequent Rulings, even when based on a horribly flawed origional ruling, should not be overturned.

It’s useful to have actually been to law school before you pontificate about what law schools teach. In actuality they don’t teach that precedent must be followed come what may; rather, they teach that precedent-setting courts generally follow a let-sleeping-dogs-lie principle known as stare decisis which is intended to give the law some predictability. Sometimes it means that silly decisions stay on the books longer than they should, but it doesn’t mean that silly decisions are unassailable.

Centerfire on October 22, 2009 at 2:40 PM

I’m distracted by the joker…

Diane on October 22, 2009 at 2:43 PM

Come on now, we can’t expect someone as important as Pat Leahy to understand something like a Constitution, can we?

After all, just like the health care bill, he probably hasn’t read it.

n0doz on October 22, 2009 at 2:44 PM

Centerfire on October 22, 2009 at 2:40 PM

Hmmmm… I wrote “should not be overturned”… did not say CAN not be overturned… ie, they give great weight to Precedence and Prior rulings…

So… with the Principal of stare decisis (to which they give great weight)… how is that different?

Romeo13 on October 22, 2009 at 2:45 PM

Vote this irrelevant clown out.

He has outlived his usefulness and besides that he is a disgusting piece of human waste.

bluegrass on October 22, 2009 at 2:46 PM

Centerfire on October 22, 2009 at 2:40 PM

“Stare Decisis” also means Lack of Spine as the “NEW” path of instruction in law school is “RULING BY PRECEDENT”, instead of Enforcement of the Constitution a it should be.

nelsonknows on October 22, 2009 at 2:47 PM

All of these A$$ clowns need a reality check. As I see it, it would be the best thing for the country.

bluegrass on October 22, 2009 at 2:48 PM

I am a lawyer, Badgerhawk.

I know you don’t like the answer (and many people would agree with you), but I haven’t found any lawyer/law professor (other than the two DoJ lawyers who wrote the first news article) who seriously argues that the mandate is unconstitutional

I don’t like to post this because it can cause issues, but I am also a lawyer AND a law professor. I would seriously argue that any such universal mandate is unconstitutional and would essentially be nothing more than a modern version of slavery.

So, add me to the DOJ lawyers and quit relying solely on stuff published by the most liberal professors as the most liberal law schools in the nation

P.S. Nothing I post is “legal advice” and no one should take anything I post as being anything other than a personal opinion posted as an exercise of my free speach rights.

Fatal on October 22, 2009 at 2:55 PM

“Judicial Realism” is where all those dorm-room anarchists found a home.

Nobody has ever sued in federal court over the federal power to mandate the Three-Night Rule. This means

a) Americans have had the sense God gave a goose, for 240 years

or

b) the issue of federal power in this area must be described as “unsettled”

or

c) Everybody knows it’s possible for the federal government to mandate that, and we merely await the evolution of popular opinion towards fulfilling a social obligation to do so

If you said A), you will never make it as a lawyer. If you said B), you could be developed to the point where you preach C) to the public as the Word of God.

Chris_Balsz on October 22, 2009 at 2:59 PM

If this passes, what would happen if a class action lawsuit is filed on behalf of the millions who do not want socialized healthcare naming all members of Congress who voted for this violation of the Constitution?

generouse on October 22, 2009 at 3:00 PM

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