Wisconsin AG applies for authorization to sue over ObamaCare
posted at 2:40 pm on March 25, 2010 by Ed Morrissey
The list of state Attorneys General working to get into federal court to stop ObamaCare may go up by at least one. Wisconsin’s AG, J. B. Van Hollen, announced earlier this afternoon that he wants authorization from either the Governor or the legislature to file suit against the individual mandate in the health-care overhaul bill signed by Barack Obama this week. His office released the following statement:
ATTORNEY GENERAL VAN HOLLEN SEEKS AUTHORIZATION TO CONTEST CONSTITUTIONALITY OF HEALTH CARE OVERHAUL
“Wisconsin must act to protect its sovereign interests
and the interests of the citizens of this state…”
MADISON – Attorney General J.B. Van Hollen today requested authorization necessary to bring an action to contest certain provisions of the federal Patient Protection and Affordable Care Act and protect Wisconsin’s sovereign interests and that of its citizens. The request was made to Governor James E. Doyle and both Senate and Assembly leadership.
State law requires the Governor or either house of the Legislature authorize the Attorney General to file all such actions.
Attorney General Van Hollen has concluded there exists sufficient legal basis to contest the constitutionality of the Patient Protection and Affordable Care Act based on its threat to the individual interests of Wisconsin citizens and the sovereign interests of the state.
That could be tough. Governor Doyle is a Democrat, and both chambers of the legislature are controlled by Democrats. The likelihood of their allowing Van Hollen to sue seems fairly low. However, Doyle is retiring at the end of the year, and the legislature has to face the voters in seven months.
But what is the likelihood of success for this lawsuit? In a letter to the state’s leadership, Van Hollen says that he thinks Congress overreached on the mandate as well as abused its powers under the Constitution:
Based on my preliminary review of the Act, I have concluded that a sufficient legal basis exists to contest the individual mandate to carry health insurance or pay a penalty under the Act. It is not clear that Congress has an enumerated power under Article 1 of the U.S. Constitution to impose this requirement on a citizen. Further, the tax imposed on a citizen for failure to carry such insurance may not comport with the requirement that any direct tax be apportioned among the states in accordance with Article 1, Sections 2 and 9 of the U.S. Constitution.
In addition, I am very concerned that the Act upsets the proper balance of power between the federal government and the states that was envisioned by the Founders. The federal government is a government of limited, enumerated powers. For Congress to act, it must have power given to it by the U.S. Constitution. Any power not given to the federal government resides with the states under the Tenth Amendment, unless the exercise of state power is limited by a state constitution. What Congress has approved in the Act is a sweeping mandate that every citizen in the country purchase health insurance or face a penalty. The power asserted here is unprecedented and unique. The United States Supreme Court has not had a prior opportunity to evaluate an equivalent exercise of power by Congress under the Act. As the state attorney general, I have a unique obligation to ensure that the citizens of our state, through their elected representatives, retain the power to determine our own laws without encroachment from the federal government, except as authorized by the U.S. Constitution. Importantly, the Wisconsin Legislature has never enacted a law to require our citizens to carry health insurance or face a penalty.
As the state’s lawyer, I take very seriously my duty to protect our State’s sovereignty. Although several states have initiated legal action and there are likely to be more challenges to the Act made by other states and individual citizens, I believe that Wisconsin must act to protect its sovereign interests and the interests of the citizens of this State by bringing an action to contest the constitutionality of the Act. I therefore request authorization under section 165.25(1m) of the Wisconsin Statutes to bring such an action.
I’ll speak with AG Van Hollen later this afternoon, after the end of my show today, to discuss this further, and I’ll post the interview this evening.
Blowback
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Can’t get enough of those sweet, sweet ad hominem arguments, can you?
venividivici on March 25, 2010 at 4:02 PM
Either the Constitution limits Governmental power or it doesn’t, which side are you on with that?
Chip on March 25, 2010 at 4:02 PM
glad jan b is going forward with it…
cmsinaz on March 25, 2010 at 4:02 PM
wrong. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress’s commerce clause power.
crr6 on March 25, 2010 at 4:03 PM
I would think that it is pretty obvious which side she comes down on.
chemman on March 25, 2010 at 4:07 PM
No, you’re wrong because the individual mandate isn’t analogous.
venividivici on March 25, 2010 at 4:09 PM
Huh? That line of cases had to do with hotels and business serving mainly interstate travelers, etc. I.e., businesses already engaged in commerce. How does this equate to an individual not engaged in commerce being forced to purchase a product or service? I’m going to be the first to laugh when you and your ilk are forced to buy war bonds or a new chevy impala.
Firefly_76 on March 25, 2010 at 4:10 PM
Hotel/motel/inn owners were engaged in commerce. Your analogy would probably support striking the no prior conditions ban since Insurance companies are engaged in commerce. I fail to see how it supports forcing me to engage in commerce I don’t want to engage in.
chemman on March 25, 2010 at 4:12 PM
Yes, I know, she refuses to answer the question about the original intent of our founding documents.
Its sort of like before the passage of National Socialist Healthcare when certain representatives didn’t want to admit to be going to vote yes on the measure and said the were ‘Undecided’.
Does she realize that being on the side of Unlimited government is to be on the side of the Tyrant?
Chip on March 25, 2010 at 4:13 PM
Actually I’d prefer that they have to pay for all the guns and ammo I want.
chemman on March 25, 2010 at 4:14 PM
So is it your contention that when the words aren’t properly defined, that the default position is to expand governmental power and diminish individual freedom?
Chip on March 25, 2010 at 4:14 PM
Even there, though, I would think that health insurers could argue that if they are forced to take people with pre-existing conditions, why aren’t life insurers forced to allow relatives of dead people to sign them up for life insurance policies or auto insurers forced to sign people up after an accident?
venividivici on March 25, 2010 at 4:15 PM
Not with blacks.
crr6 on March 25, 2010 at 4:17 PM
My guess is that she figures she will be working for the tyrant so it won’t affect her.
“Consider a boot stepping on your face forever” G. Orwell
To me it doesn’t matter whether it is a hard soled or soft soled boot, it is still a boot. crr6 wants to be one of those wearing the boot.
chemman on March 25, 2010 at 4:18 PM
Georgia’s governor has said he will appoint a “special AG” today to sue since the regular AG is a POS Democrat who refused to do it. And he has received offers from several attorneys to do it for free.
But then again as we all know GA is from the South and therefore this is obviously just blind racism. /s
angryed on March 25, 2010 at 4:18 PM
The funny thing is that that’s the argument she led with, i.e. her best argument. Yet, she acts as if the Constitutionality of the mandate, via analogy with that case, is a slam-dunk.
If you could bottle her level of delusion and sell it, there goes the national debt.
venividivici on March 25, 2010 at 4:19 PM
crr6 is flailing in the wind. Her first problem is she thinks this is really about health care. If this was really about health care, the main impetus would be reducing cost, and there are several Republican plans that do just that as well as expanding coverage.
Her second problem is she has no concept of liberty and freedom from government coercion.
In other words … no clue.
darwin on March 25, 2010 at 4:20 PM
chemman on March 25, 2010 at 4:14 PM
Even more hilarious if they were forced to purchase their own guns and ammo. Oh the horrors!!!!
venividivici on March 25, 2010 at 4:15 PM
Excellent point.
Firefly_76 on March 25, 2010 at 4:20 PM
Great. That didn’t force them to buy anything they didn’t want. All it did was say they had to not discriminate.
darwin on March 25, 2010 at 4:22 PM
percysunshine on March 25, 2010 at 3:12 PM
–Go back and look at the map. Illinois is the only Great Lakes state in the top 10. All the others are in the Top 20 or 30.
Jimbo3 on March 25, 2010 at 4:22 PM
Big difference:
Blacks wanted to participate in commerce but were denied from doing so. The hotels were participating in commerce but excluding a certain group of people from participating. There was commerce taking place already in that the hotel existed or the restaurant existed and operated.
I don’t want to participate in buying insurance but will be forced by the government to do so. There is no commerce in effect as far as I am concerned. The government is forcing me to engage in commerce that does not currently exist. I am not denying anyone service. I am not restricting anyone’s access to service. I am not adversely affecting anyone else by my decision.
Apples and oranges my friend.
angryed on March 25, 2010 at 4:24 PM
That is the type of statement I would expect from a middle school student. I thought you were currently in law school.
They were still engaged in commerce. The fact that you disapprove of the commerce because they excluded blacks doesn’t make it not commerce. The Courts assumed jurisdiction because it was commerce.
chemman on March 25, 2010 at 4:24 PM
Democrats say people lose their homes, their life savings, go bankrupt … if they don’t have adequate health insurance.
The same happens to people with legal problems as well. I believe the government should take over the law profession. This way, people wouldn’t lose everything they’ve worked for when they have to hire a lawyer.
darwin on March 25, 2010 at 4:25 PM
Makes you wonder if she fancies herself to be a ‘Liberal’ – as in someone who actually supports Liberty.
I really can’t imagine how someone would rationalize that dichotomy in their own mind.
Chip on March 25, 2010 at 4:27 PM
Lol.
crr6 on March 25, 2010 at 4:28 PM
You do realize that no one here is going to give you a pass and assume that your “Lol” response actually rebuts the point, right?
I weep for your future clients. Although, if I’m on the other side, I gotta like my odds.
venividivici on March 25, 2010 at 4:29 PM
Same question for you:
Chip on March 25, 2010 at 4:29 PM
Hey genius, the Court didn’t force the African-Americans to shop at those establishments. Nor did forced extraction of fees take place on either side. It simply allowed for equal services to be rendered regardless of color.
I don’t see a provision forcing a person to purchase something they don’t want and then penalizing them if they don’t engage in the commerce!
Weak arguement, epic fail, all your base are belong to us!!!
MechEng5by5 on March 25, 2010 at 4:30 PM
Liberal in the sense that Castro is liberal I suppose.
By the way … Castro endorsed Obama’s takeover of health care, so did the WHO and the UN. I guess if socialists and communists like it we’re screwed.
darwin on March 25, 2010 at 4:30 PM
Why are you laughing? You spend each day here trying to convince people you know what you’re talking about and fail each time. Do you ever do any self reflection?
darwin on March 25, 2010 at 4:32 PM
Good stuff Ed. thanks. I encourage the Wisconsin AG to pursue this to the fullest extent of the Constitution. I believe this is an unjust and unconstitutional law.
+2700
ted c on March 25, 2010 at 4:34 PM
“Your Honor, I just found out that my attorney is the former Hot Air commenter crr6 and I request new counsel”.
“Granted!”
darwin on March 25, 2010 at 4:34 PM
Self-reflection is for people who aren’t “on the right side of history”. Once you get on history’s “right side”, everything you think and do is hunky-dory.
venividivici on March 25, 2010 at 4:36 PM
Count again – there’s at least 2 dozen non-Democrats here in the land of cheese and beer.
Seriously, it is likely that the Republicans will sweep all three partisan levers of power (the governor, the Assembly and the Senate).
steveegg on March 25, 2010 at 4:37 PM
darwin on March 25, 2010 at 4:34 PM
BWAHHHAHHAH!! “Your Honor, Exhibit A in my case for ineffective assistance of counsel . . . crr6′s Hot Air posts on Con Law.”
Firefly_76 on March 25, 2010 at 4:38 PM
See, this is the whole point. The Founding Dudes knew this would happen eventually. So they left us a treasure trove, a Rosetta Stone of sorts, called “The Federalist”.
Publious took great pains to explain in excruciating detail (in the 6th grade, I found myself wishing for a root canal that week) what the intent of the specific sections of the Constitution were designed to do. And, those glorious bastino’s even gave us context in which to apply the concpets within the document.
Try it Crr6, you might like it. Or not. It’s really a conservative read. Makes G. Beck look like L. Farrakhan.
BobMbx on March 25, 2010 at 4:38 PM
A re-count? I thought Chad lived in FL.
BobMbx on March 25, 2010 at 4:40 PM
Wow. Really? People that upset? I lived in a little town called Elroy for a year.
darwin on March 25, 2010 at 4:40 PM
Oh she’s so screwed.
darwin on March 25, 2010 at 4:41 PM
Isn’t it curious how the Left always uses terminology that casts the best light on themselves.
They are part of a National movement of Socialists – IE National Socialists.
It’s probably never a good idea to do what your enemies want you to do – unless you agree with our enemies – I suppose it’s up to the causal observer to decided what is the truth in that matter.
Chip on March 25, 2010 at 4:41 PM
I actually think there should be “pre-existing conditions” insurance, so that IF you did get booted from one insurance company, another would pick you up under that policy. Kind of self-reinsurance.
http://online.wsj.com/article/SB10001424052970203609204574316172512242220.html
venividivici on March 25, 2010 at 4:42 PM
As for the mechanics, the Legislature (controlled by the ‘Rats as Ed pointed out) as 7 days of “regular-business”, 3 days of “limited-business”, and 2 days of “veto-review” left in this session. Outside of that, they are out of session unless Doyle calls them in.
Moreover, the Dems in the previous version of the state Senate voted unanimously to try to implement their own version of CubaCare misnamed “Healthy Wisconsin”, with essentially a full government takeover of the health-insurance industry. While the Assembly shot it down, they did come back and successfully mandate coverage on parental policies for children up to the age of 27.
steveegg on March 25, 2010 at 4:44 PM
venividivici on March 25, 2010 at 4:42 PM
Thanks for that. I never doubted that there could be a real market-based solution wrt pre-existing conditions. So long as the pricing mechanism makes it profitable, why wouldn’t there be?
Personally, my biggest insurance beef is the tie-in with employment. Ideally, it should be easier for individuals to get cheap, high deductible plans. I have friends who have them, I admit I haven’t done the homework on it.
Firefly_76 on March 25, 2010 at 4:47 PM
Actually, either house of the Legislature can ask the AG to join a lawsuit on its own action. If memory serves, the Assembly did so in 2007 when it and the AG were the sole Republican levers of power on a Second Amendment case.
steveegg on March 25, 2010 at 4:49 PM
Who says that’s my best argument? There are all sorts of potentially winning arguments, based on the tax and spending clause, commerce clause, necessary and proper clause…etc. I’ve made many of them here. The fact that I made one in this particular thread doesn’t mean it’s my best argument. I just pointed out that SCOTUS has previously held that refusing to engage in commerce can substantially affect commerce. So contrary to popular HotAirhead wisdom, a SCOTUS holding saying that refusal to purchase health insurance substantially affects commerce wouldn’t be completely unprecedented. That’s not my argument. It’s Chemerinsky’s.
Which really is the point here. You act as if you have some sort of consensus on your side (based on a Heritage Foundation article), but in reality both conservative and liberal legal commentators largely agree SCOTUS will find the individual mandate constitutional, for a variety of reasons. You occupy the minority position.
crr6 on March 25, 2010 at 4:52 PM
While the previous two Attorneys General (both ‘Rats, one of which was Jim “Craps” Doyle) did so, Van Hollen’s personal interpretation of Wisconsin law is that he can’t do so.
steveegg on March 25, 2010 at 4:52 PM
Will you be making this same argument when the Federal Government delcares it unlawful to not buy a Chrysler or GM product based on the “not engaging in commerce” ruling?
I don’t pay union dues. A lot of us don’t pay union dues. I’m not “engaging in commerce” Does that mean the Commerce clause can be used as club by unions to force me to pay union dues?
If not, what’s the difference?
BobMbx on March 25, 2010 at 4:59 PM
Either the Constitution limits Governmental power or it doesn’t, which side are you on with that?
Chip on March 25, 2010 at 5:03 PM
I didn’t say that I had the “consensus”, but the non-Constitutionality is the most logical position, as well as most in tune with what the likely outcome is given the composition of the Court. The commentariat, liberal and conservative, is secondary.
Yes, by quoting this I am simply quoting a member of the “commentariat”, but at least this article attempts to actually put itself in the shoes of the court and not impose a view upon it externally, to align with its political preferences. And, since this was written before Obama’s little stunt at the SOTU, I can only imagine that it’s going to be even tougher to sell the majority which decided that case to side with the mandate. Yes, timing becomes an issue then.
All of your other arguments are also demolished in the “think tank report” you so snidely derided. Maybe if you actually engaged with the alternative analysis, you’d learn something.
venividivici on March 25, 2010 at 5:04 PM
The slippery slope arguments only obfuscate and create fear before a court ruling. As I said, the court has already said that refusing to engage in commerce substantially affects commerce. And none of the things you refer to have occurred.
crr6 on March 25, 2010 at 5:04 PM
Why would framers of the Constitution have enumerated the governments power’s specifically and yet left the door wide open to unchecked expansion in the future?
Chip on March 25, 2010 at 5:07 PM
I’m with you there, although I’ve always worked in companies which offered health insurance plans and haven’t had to shop for an individual plan except while in school.
Still, for today’s workforce, which switches jobs frequently and is often employed on a contract basis, individual policies should be treated equally to employer-provided polices. Of course, everyone traces that back to the wage controls, which made offering fringe benefits a necessity.
A lot of professional/alumni associations are starting to offer different types of insurance. I’ve seen more on the life and auto side, but health is probably out there, too. Those offer a “third way” between the individual policy and an employer-provided policy.
venividivici on March 25, 2010 at 5:08 PM
Need to ReWrite&;trade myself (I wish we had a comment-editing feature)…
steveegg on March 25, 2010 at 5:08 PM
I’ll take Chemerinsky over the determinations of an MBA grad, thanks.
crr6 on March 25, 2010 at 5:09 PM
Dammit; I’m making typo after typo today.
steveegg on March 25, 2010 at 5:09 PM
Why would framers of the Constitution have enumerated the governments power’s specifically and yet left the door wide open to unchecked expansion in the future?
Chip on March 25, 2010 at 5:10 PM
Are you some sort of wingnut-bot or something? I answered the question on the previous page. Proud RINO answered it a few days ago.
crr6 on March 25, 2010 at 5:11 PM
Randy Barnett, one of the authors of the Heritage Foundation paper, is a law professor at Georgetown. Here are a few statements/pieces by other legal scholars:
Richard M. Esenberg, professor of law at Marquette University, explained the consequences of Obamacare like this: “If Congress can require you to buy health insurance because of the ways in which your uncovered existence (affects) interstate commerce or because it can tax you in an effort to force you to do (any) old thing it wants you to, it is hard to see what—save some other constitutional restriction—it cannot require you to do—or prohibit you from doing.”
http://www.cato-at-liberty.org/2010/03/23/individual-mandate-is-constitutional-if-you-rewrite-the-constitution/
http://www.cato-at-liberty.org/2009/12/11/the-reid-individual-mandate-an-affront-to-the-constitution/
Firefly_76 on March 25, 2010 at 5:12 PM
I’m assuming you’re quoting the Heritage Foundation article again? It’s essentially an advocacy organization. They’re not assessing, they’re arguing.
crr6 on March 25, 2010 at 5:13 PM
I’m not paying union dues. Never have. Never will. Thats a clear refusal to engage in commerce.
BobMbx on March 25, 2010 at 5:13 PM
Yeah, and no one’s forced you to pay union dues. The court already held that not engaging in commerce can substantially affect commerce, decades ago. And the sky hasn’t fallen.
crr6 on March 25, 2010 at 5:15 PM
Given that Chemerinsky is the one who provided you with your now-sitting-in-smoldering-ruins “Heart of Atlanta” argument, I don’t see how that’s a wise decision. But, then, I don’t think you’ve got an iota of wisdom in you, so I’m not surprised.
venividivici on March 25, 2010 at 5:17 PM
crr6, re-read Esenberg’s warning in my post above. Are you not afraid? Do you like the taste of jackboots?
Firefly_76 on March 25, 2010 at 5:19 PM
Which liberals all file under the “Let’s make sh*t up” clause. So that’s not an argument with me. Liberals have “creatively” interpreted the language of the Constitution to mean what they want it to mean for so long, and stripped us of our freedoms in the process, that they have lost the right to be creative with my freedoms.
englishqueen01 on March 25, 2010 at 5:21 PM
NO, you haven’t.
Show me a straight answer to that question – in less that 500 words please.
If you have already answered it, that should be easy to accomplish, right?
Chip on March 25, 2010 at 5:21 PM
There is this debate amongst Federalist Society members that indicates no position taken by the Federalist Society, itself, at this time although they are working to examine the issue.
Also this discussion on the individual mandate shows diversity of opinion at the Federalist Society.
In particular from the Federalist Society are two members who have clearly stated their doubts on the matter, Peter Urbanowicz and Dennis G. Smith.
William L. Saunders of the Federalist Society brings up problems with the conscience provisions of all the bills including abortion and assisted suicide in the Senate version.
Rob Natelson of the 10th Amendment Center has issues with the Constitutionality of health care as proposed.
David B. Rivkin and Lee A. Casey have taken issue with health care reform multiple times here, here, and here.
In fact if there is a ‘right’ to health care, as is asserted, it is not an enumerated right in the Constitution and, thusly, falls to the States and the people, not the federal government. Thus trying to control the ‘commerce’ of a right that is unenumerated would be a violation of the Constitution. If it was a ‘right’ at the founding meant to be given to the federal government for oversight, then it would be mentioned, and yet it is nowhere to be seen and is, thusly, unenumerated. You need no penumbra to describe unenumerated rights as they are the things reserved to the States and the people not mentioned in the Constitution.
Why would the Bill of Rights mention the unenumerated rights being reserved to the States and the people if it meant that all of those should be given to the federal government for oversight? They are not and the oversight is reserved for the States and the people, not the federal government. That is why it is a federal government with limitations – the 9th and 10th Amendments indicate that what is given to the federal government is it, and that anything else found as a ‘right’ is reserved outside of the bounds of federal oversight. This creates the ‘negative rights’ document proscribing those things not given to the federal government as outside its bounds.
If it is seen as a purely commercial transaction, then the question of government ability to regulate it via the commerce clause does come up. That has been weakened to give broad powers to the federal government, as in Gonzalez v. Raich which imputes there to be a national illegal or black market in marijuana that is influenced by individuals growing their own plants. This national market concept has been around for awhile, particularly in the New Deal decisions, and the expansion of that power must bring up the question: what are its limits? If there are none, then there is no valid reason to enumerate it as it can subsume all other powers.
I have yet to hear of the proponents of health care reform actually enumerate any actual limit of the commerce clause, and yet it must have some limit to it. Even the warmaking power is given limits in that the States retain individual sovereignty to defend themselves in case of invasion or danger that will not admit delay. Further the Second Amendment retains the right to bear arms to the people so as to form militias. If warmaking and defense have limits, then surely there must be some to the commerce clause and yet the proponents state none, nothing that they are willing to hold up as beyond the reach of the federal government via commerce. Thus being born now is a commercial activity as, to be a citizen, you must be insured from birth and getting such insurance is a commercial activity mandated to citizens.
There are ways to hold a civil discussion on this without saying the other side is all wrong… in particular if they are right on this being a ‘right’ then they should assuredly NOT want the federal government to intrude where it is not given to intrude. If it is purely commercial activity, then what are the limits to the commerce clause?
ajacksonian on March 25, 2010 at 5:22 PM
Another ad hominem attack?
They’re making a prediction based on past evidence and they’re taking into account the arguments made in favor of it as part of that past evidence. Unless Chemerinsky, or you, or anyone else has a crystal ball, you’re doing the same f*cking thing. Only, the rationales for why you are saying it will be found Constitutional don’t withstand scrutiny. I don’t care if you’re employed by an advocacy organization or Yale Law School, that’s how forecasting the future works, when you assume that the future will be at least somewhat similar to the past.
“All of your arguments suck and here’s why they suck”, basically, is what the Heritage article says. Unless you can rebut that, that’s the “right answer”. Just because YOU are satisfied with Chemerinsky’s analysis doesn’t mean the rest of the world is.
venividivici on March 25, 2010 at 5:26 PM
ajacksonian on March 25, 2010 at 5:22 PM
Excellent exposition. will crr6 respond? *crickets*
Firefly_76 on March 25, 2010 at 5:27 PM
If these lawsuits were to fail, they could serve as a rally call for a campaign for a constitutional amendment limiting the scope of the commerce clause.
year_of_the_dingo on March 25, 2010 at 5:28 PM
I’d also like to see an amendment stopping the government from creating “positive rights”, a.k.a. forcing someone to provide something to someone else.
venividivici on March 25, 2010 at 5:40 PM
Ditto
darwin on March 25, 2010 at 5:44 PM
I’ve asked crr6 before, but never received a response … why does she support the government taking over health care?
crr6?
darwin on March 25, 2010 at 5:46 PM
There’s even a WiFi access point where I live named “Nobamanation”. Make what you will of it.
JediArashi on March 25, 2010 at 6:19 PM
So far no response – gee one would think if she had
That it would have been easy to respond.
The real reason the leftists duck this question is that they know that the answer is that the framers wouldn’t have enumerated the governments power’s specifically and yet left the door wide open to unchecked expansion in the future.
They would rather pretend to follow constitutional law while seeking to undermine it until the point that is meaningless.
As others have said, if the government can compel people under the yoke of National Socialist Healthcare that they have opened the door to other usurpations of our liberties.
Clearly the founding fathers never intended to have a government this powerful – but the Leftists can’t admit that, they have to rationalize their own tyranny in their own minds – and they get mighty ticked off when you point that out to them.
Chip on March 25, 2010 at 6:24 PM
Why on Earth does he need permission? A state’s Attorney General is independent of the Governor and legislature, and his duty is to protect the people of his state. If he thinks Obamacare is unconstitutional, he should sue, not ask for permission that he doesn’t need. Sounds like he’s being a wimp and not doing his job if you ask me!
American Elephant on March 25, 2010 at 6:37 PM
This pains me to no end, and mayhaps I should just keep it to myself, but I think crr6 may be right on this one; “right” of course being determined by those in authority to do so. I am not a Constitutional scholar, but I sometimes play the role of one in the court room.
With all of the preamble blah, blah, blah out of the way, I think that crr6 cites the fundamental argument that will be made in the Supreme Court.
As I recall studying that case in law school, it essentially rested, among other things, on the commercial “affect” doctrine — if it’s anything that affects interstate commerce, the courts will likely uphold the law. Granted, there were other liberty interests at stake, and our country was in the midst of a racial crisis, so historically the analysis might not hold. The trend in Constitutional jurisprudence, however, has been toward expanding — not restricting — governmental powers under the commerce clause. In my opinion, the cat is so far out of the bag on the issue that it cannot be coaxed back in.
I like the arguments being made on our side, and logically they make sense. But the courts are extremely deferential to legislative enactments, and it will have to be compelling beyond a reasonable doubt for the court to step in based on the commerce clause. I would like to think we have the upper hand in the argument, but precedent says that we don’t.
crr6′s argument is one that must be taken seriously, and we must come against it with as much persuasive force as possible.
Oh. One other thing. Libs suck. crr 6 is a lib. Therefore…
ObjectionSustained on March 25, 2010 at 7:10 PM
I appreciate your comments, but everything hinges on not if the courts rule in favor of Obama, but if the people and the states accept it as legitimate.
The legitimacy of the courts and the government is entirely dependent on the people’s belief that they are. If they lose the trust of the people they are in effect a rogue court and a rogue government.
This isn’t an issue where the states and the people will simply say “well, we tried” and accept their fate.
darwin on March 25, 2010 at 7:20 PM
Which is why I think we should start three processes now….
1) repeal in 2010 or defund
2) file suit
3) constitutional amendment
we start them all now then there is no lag time if one or both of the other fail.
csdeven on March 25, 2010 at 7:33 PM
Yep
darwin on March 25, 2010 at 7:36 PM
Right. And I think it ultimately becomes a political question. And the political questions are decided on a different battle field. Political coalitions are difficult, delicate things to construct, and it takes commitment and energy to see the cause through to its conclusion. One of the mistakes that conservatives make is we rest on the certitude of our reason and our appeal to liberty. That is all well and good (good and proper?), but ideas are, in military parlance, only the end point of strategy. What is it said of amateur generals? Everyone’s a strategist, but very few are logisticians?
One of the great things about blogs, talk radio and the like is that they give us a great opportunity to map out the idea, but they are not very good at providing materiel and manpower to the cause.
I think we have to acknowledge that our adversaries in the liberal camp have excelled in strategy and mapping out the plan to win that strategy. They have enlisted universities, elementary schools, entertainment companies and the vast majority of major mass media. And, frankly, they have done an excellent job of selling comfort over liberty as the higher ideal.
I have stewed over the events of the last eighteen months, have written my congresscritters, and have tried to influence my social circle as much as I know how. I have come to the conclusion that anger and frustration may be a motivator, but they are neither a strategy nor an implementation of political will. I have not idea how to harness that energy, and I am hoping there are those persons out there who do.
Not to say that we should not bring the battle to the courtroom. I just have a hard time believing it will be that easy to stop the political will shown by the other side.
ObjectionSustained on March 25, 2010 at 7:41 PM
May I also suggest one other thing? I think we need to shake the confidence of the liberal establishment. I think that will need to take the form of a conservative takeover of a major liberal organ such as one of the three big broadcast networks. I have some ideas how that can be done, but it’s too far off topic. Anyway, I think some focus needs to be placed in that area. Otherwise, we will forever be facing the uphill fights.
ObjectionSustained on March 25, 2010 at 7:49 PM
Funding.
ObjectionSustained on March 25, 2010 at 7:53 PM
In politics … perception is everything. In reality, the liberal base is very small, although very well funded and powerful. All we have to do, is change the perception of what and who the democrats are. That’s already happening. People, suddenly shocked to realize that a Marxist/socialist has been elected to the White House have gotten involved and begun to educate themselves.
We now have more people that are informed politically, historically and for many read the Constitution for the very first time. People are engaged because suddenly it matters. Something is wrong and all they need is for us to provide the information. A campaign to educate, I don’t know how yet, but that’s all you really need because the vast majority in this country abhor liberals and their policies.
Liberals have succeeded because they’ve controlled the perception of who they are. We just have to take the mask off.
darwin on March 25, 2010 at 7:53 PM
I gotta run for now … great comments.
I haven’t seen you here before but don’t be a stranger.
Great points.
darwin on March 25, 2010 at 7:55 PM
I am wondering if anyone will have the nerve to sue the Feds based on the Thirteenth Amendment, Section 1:
I’ve referenced this before, but I think it bears further discussion. The health care bill in essence says that we must, by mere accident of birth in this nation, pay third persons a portion of our income against our wills. It is as close to ownership of another person as one can get without having documents of title or a bill of sale to another human being. The jurisprudence in this area demands a showing only of a “badge of slavery.”
I would say that a mandatory confiscation of property against my will for the direct benefit of some third party qualifies as badge of slavery to at least have the Supreme Court consider it.
ObjectionSustained on March 25, 2010 at 8:40 PM
I certainly don’t expect libs to just give up because someone says the mandate is unconstitutional. However, you have to look at the inner logic of the cases in which the Commerce Clause justification was upheld and cases where it wasn’t. I think in terms of probabilities and I’d give the Court finding it unconstitutional a higher probability than not. Click the links in ajacksonian’s post and see legal scholars duking it out. See for yourself who wins. Yes, there are political considerations as well, but the granting of this radical an extension of the Commerce Clause basically makes Congress an all-encompassing force in American law and that is plainly a very radical step and the Justices will understand that once the genie is out of the bottle, it won’t be put back in.
Which brings up my next point, which is that contrary to crr6′s dismissal of a slippery slope argument here, the very nature of health care lends itself perfectly to a slippery slope. If the government can force you to buy health insurance, how can it logically not also force you to take actions conducive to minimizing the expense the government has to pay in subsidies for that health insurance, which has a million and one lifestyle implications? Even today, it was in the news that 1/3 of all breast cancers may be avoidable by lifestyle changes. Having extended the Commerce Clause so far, how could Congress ever resist further extension into forcing you to do things to stay healthy, especially as the fiscal noose tightens?
I don’t think it’s an accident that all collectivist countries have “mass calisthenics” or that in “1984″ they had to exercise in front of the telescreens. It’s just a logical extension of the fact that the collective owns you. Right now, the collective doesn’t own us, but it could if we let it.
venividivici on March 25, 2010 at 9:32 PM
Good points:
We have people like Max Baucus saying that ObamaCare will help correct the “maldistribution” of income, these people are talking about Statism – where the productive in our society are required to provide property to others who are not productive.
Chip on March 25, 2010 at 10:09 PM
Still waiting – if she answered already why is it taking so long to find those answers and re-post them???
Chip on March 25, 2010 at 10:11 PM
I suspect that I should do more research on the topic, but I don’t see too much of a stretch for the arguments that:
A) The insurance industry is interstate
B) Health care providers such as Kaiser-Permanente operate on and interstate basis
C) People are mobile and interstate regulation is desirable in assuring access to interstate services
D) Interstate services are being utilized to capacity
E) Utilization demand is causing upward pressures on the cost of health care and, thus, the cost of health care insurance
F) That distortions in the health care marketplace are causing an undesirable misallocation of health care resources, especially to those of lesser means
G) The only way to address the unfavorable allocation of health care resources on an interstate basis is to enact federal laws to address the problem
H) The Court should not be in the position of substituting its judgment for the judgment of elected officials in formulating health care policy
I) Just because a policy reaches to individuals, it should not be disqualified since the participation of each of those individuals has interstate consequences.
Not saying I agree with the above. But the Courts are pretty permissive about this sort of thing. I think the commerce clause application to discrimination cases is an instance of bad fact creating bad law. But its the law we have to work with.
Frankly, I believe that modern Constitutional jurisprudence has relegated the states to mere administrative units serving the purposes of the Federal government. I’m not sure how that is to be reversed unless a strong Supreme Court has the strength of will and intellect to stop the trend. All of that being said, I hope to God your arguments prevail.
ObjectionSustained on March 25, 2010 at 10:35 PM
Yes, and let’s not forget that it takes time to “control the people.”
ObjectionSustained on March 25, 2010 at 10:38 PM
Unfortunately, Wisconsin law is unique. While AG is a state constitutional office, said constitution specifies all powers of the office are set by statute. Those statutes do not specifically allow the AG, or anybody else in the Wisconsin Department of Justice, to unilaterally challenge the constitutionality (either federal or state) of any law (again either federal or state). In fact, the annotated version of Chapter 165 (which defines the powers of both the AG and the Dept. of Justice) notes that the AG does not have the power to challenge the constitutionality of a statute.
steveegg on March 25, 2010 at 11:10 PM
True, but policies are written on a state-by-state basis, even if the parent insurance company has subsidiaries in every state. Plus, this can be said of almost every industry, so why single out insurers?
True again, but how does this lead logically to a requirement that individuals purchase health insurance, especially a policy that meets specific requirements deemed valid in DC? What if I simply prefer a catastrophic policy or want to pay cash, i.e. self-insure? The operating configuration of health care providers shouldn’t preclude me from doing that.
So long as my money is legal tender anywhere in the US, I have access to any interstate health care service I want with or without an insurance policy.
I’ll be honest, I’m not sure how this fits into your chain of reasoning nor how providing subsidized insurance for the uninsured would alleviate this issue, rather than exacerbate it.
Isn’t this just “supply and demand”? Price pressures exist across a variety of industries, so why would health insurance be singled out?
I’m not fully convinced that there are distortions in the health care marketplace. I know a lot of people say they are there, but I would say that basically people get the healthcare they can afford, just like in other sectors of the economy. People of lesser means don’t live in mansions, so why would we expect them to get the same health care as someone who does live in a mansion. In a society where people are free to pursue their own interests, by what right does the government redistribute wealth in order to equalize health care access? For every dollar the government takes from me, that’s one more dollar I have to earn to pay back my mortgage or my car loan or student loans. And for what? So that some person I never met can get treated for cirrhosis of the liver after a lifetime spent living in a bottle? That’s ludicrous.
Maybe, but if the health care policies being formulated by elected officials negate the relationship of the Federal government to the state governments and to individual citizens written into the Constitution, the Court has an obligation to substitute its judgment for elected officials’. That’s one thing that differentiates a constitutional republic from a democracy, no?
Sure, but this still presumes that not purchasing health insurance is as much a commercial act as purchasing it, which is the whole basis of the challenge.
It does seem that way.
venividivici on March 25, 2010 at 11:58 PM
For some reason there are still people that cannot see the forest due to the trees.
This is actually very simple. Forget the ruse of considering health care. This is about making the citizens of the US INDENTURED SERVANTS! IF this mandate stands, there will be many more government mandates to follow!
Obama, Pelosi, and REID have orchestrated the return of SLAVERY to the US!
Obama will go down in history as a president that tried to turn the citizens of the US into indentured servants!
History will NOT be kind to Obama.
Freddy on March 26, 2010 at 1:16 AM
Hey, all you new people? Crap like this here is absolutely stupid, and is designed to make you respond angrily. And you take the bait every time. This is the problem every time we get a new crop of newbies – you spar with trolls like this nut.
DON’T FEED THE TROLLS!!!! They don’t add anything at all to the conversation, they just throw stupid-bombs. And you people react. Just like the democrats making up crap about death-threats, and our side is reacting. Notice none, not one, of the released voice-mails has ANY threat attached.
Saul Alinsky’s “rules for radicals” teaches this – throw bombs and keep the enemy on the defensive. And our naivete gets us snared. Well don’t bite. Leave the idiots alone, and they will get frustrated and cry to momma, and stomp back down to their basement room.
Squiggy on March 26, 2010 at 6:24 AM
Squiggy on March 26, 2010 at 6:24 AM
I understand what you’re saying, but I feel that confronting at least some of the trolls helps convince others of our point of view.
I’ve noted that Crr6, Jimbo and Proud Rino can’t seem to answer that question if I have poshed:
The best they can seem to do is ignore the question and later on lamely claim that it was answered – clearly that isn’t’ the case.
The fact is They would rather pretend to follow constitutional law while seeking to undermine it until the point that is meaningless.
But they can’t admit that.
Still waiting BTW..
Chip on March 26, 2010 at 10:43 AM
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