Judge in 20-state ObamaCare case expresses skepticism over mandate

posted at 3:35 pm on December 17, 2010 by Ed Morrissey

If the White House hoped for a better outcome from the 20-state lawsuit over ObamaCare in Florida than it got this week from the federal court in Virginia, early observations from the arguments may dash those hopes.  The Wall Street Journal reports that Judge Roger Vinson expressed considerable skepticism about the argument from the states that ObamaCare represents an overreach of federal authority by mandating expanded coverage through Medicaid, a program from which Vinson noted states could withdraw, at least legally.  However, Vinson called the individual mandate “a great leap” on the notion of economic activity that falls within the Commerce Clause’s parameters:

A federal judge in a 20-state lawsuit against the Obama administration’s health overhaul signaled Thursday he is sympathetic to the plaintiffs’ argument that requiring Americans to carry health insurance violates the Constitution.

But Judge Roger Vinson seemed skeptical of the second plank of the states’ suit: that the law forces states into a costly expansion of their Medicaid insurance programs for the poor. …

Judge Vinson, who was appointed by President Ronald Reagan, signaled he saw the requirement as unprecedented and a potential imposition on Americans’ individual liberties. The case is one of some two dozen federal lawsuits that are ultimately expected to be decided by the Supreme Court.

“It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity,” Judge Vinson told the court. … “If they decide that everyone needs to eat broccoli,” then the commerce clause could allow Congress to require everyone to buy a certain quantity of broccoli, the judge said.

The Department of Justice attorney representing the Obama administration argued that the food argument wasn’t relevant because at some point in time, everyone buys health care services.  Everyone buys food, too, and this particular argument is not only relevant but also linked.  Since diet is a part of health maintenance, setting this kind of precedent not only allows the federal government to issue a must-purchase order of broccoli (or vegetables in general), it will almost certainly result in the issuance of such mandates — followed by the inevitable subsidies.  And as with the nanny-state ObamaCare bill, food-police advocates will insist that they are doing it to save public funds wasted on Americans who insist on making occasional unhealthy choices in food.

Note that Vinson, like Hudson, has his appointment pedigree noted, although the WSJ also notes that two other judges who have dismissed claims in other ObamaCare cases were appointed by Democrats.  Vinson’s Reagan appointment doesn’t necessarily make him a rock-ribbed conservative, at least not in the social sense of the movement.  In 1988, Vinson struck down a Florida county ordinance that banned the film The Last Temptation of Christ, which received overwhelming criticism for Martin Scorsese’s take on the life of Jesus and his experiences with temptation, which runs far afield from the Gospels, as well as portraying Jesus as a Roman collaborator.

Vinson appears to have a strong sense of individual liberty and defense of such against government intrusion, which is good news for the plaintiffs in this case.  Interestingly, though, Vinson also serves on the FISA Court and has since 2006.  Obviously, those decisions don’t get made public in most circumstances, but his presence there may make it a little more difficult for critics on either side to attack Vinson personally for his eventual ruling.  That may be especially true for the administration, which will have to deal directly with Vinson for the next three years (or at least the next two) on national-security requests.


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The big issue is it will not be stopped short of THE SCOUS. Dyke Keagen was Solicitor General and involved in drafting this legislation. She will of course recuse herself as it was discussed during her nomination.
So sad.

seven on December 17, 2010 at 6:42 PM

I don’t think that’s a very fair characterization of my posts here. I think I’ve brought up some fair points and enlivened some debate. I guess you’d rather just have 50-60 posts of “OBAMACARE IZ FASCISM” and “HOLDER IZ A RACIST.”

crr6 on December 17, 2010 at 4:58 PM

My problem is that for the life of me, I cannot understand how you people believe adding 33 million people to welfare lowers healthcare costs. Whatever negligible savings you get from forcing people to buy insurance (and about half of the 33 million people are just tossed onto Medicaid, which will increase costs) is certainly far outweighed by the price increases that come from all the taxes, coverage mandates and fines on businesses will incur. We’re already seeing it. Just wait’ll 2014.

It’s not even good liberal crackpottery. You’re giving insurance companies half a trillion clams and cutting the same from Medicare. It’s not just papering over the problem (patients pay only 13% of the final bill, encouraging wasteful consumption)- it’s making it much worse. ObamaCare is expected to lower that number to 5%. Imagine if 95% of your food was paid for by someone else. I for one would be eating at Mastro’s in Beverly Hills every night because bone-in ribeyes would be $2 and martinis would be a buck.

It’s a terrible bill, which is why it is so unpopular.

Chuck Schick on December 17, 2010 at 6:47 PM

The only way Judge Vinson will be able to get around the precedents is by either 1) inventing distinctions which SCOTUS has never explicitly recognized, and then concluding that those distinctions are limitations on Congress’s power…

crr6 on December 17, 2010 at 3:59 PM

Same broken record. Every time a judge rules against you, you accuse them of ‘making crap up.’ It’s getting old. You still refuse to provide any limitation on TCC.

Just admit in writing that you are a total Socialist. Then perhaps I could respect your points of view at least for honesty.

BierManVA on December 17, 2010 at 6:58 PM

Same broken record. Every time a judge rules against you, you accuse them of ‘making crap up.’ It’s getting old. You still refuse to provide any limitation on TCC.
BierManVA on December 17, 2010 at 6:58 PM

That’s ridiculous. I’ve listed limits on the ICC a bunch of times.

crr6 on December 17, 2010 at 7:10 PM

As you guys always say, health care spending takes up 17% of the entire US GDP.

crr6 on December 17, 2010 at 4:25 PM

SO WHAT!!!!!!!!!!!

You are an absolute FAILURE of a thinking human. I have news for your little brain: “LIVING LIFE” takes up 100% of GDP. Everything we do, eat, sleep, drive, work, etc. takes money and resources to do. When you say that “lack of health care forces others to spend money”, you are WRONG. It is a failure of SOCIALISM that causes govt to spend money on others.

The government takes money from us in the guise of helping the less fortunate and when it isn’t enough…when spending is more than the revenue they bring in, they take more, mandate more, steal our LIBERTY MORE! and idiots like you are so brainwashed that you can not even see the failures of the welfare state we live in.

The govt has no business in health care. Ever since they have been involved, manipulated the system and mandated coverage, it has done nothing but drive up cost. It has been a long term goal of politicians to control more of our lives and the time for it to stop is now. Enough is enough.

End rant.

BierManVA on December 17, 2010 at 7:14 PM

Toilet paper. Everyone uses it and if you don’t, you significantly affect commerce AND you have to go to the doctor to get treated for a rash. Thus increasing health care costs. If Obama can make us buy health insurance he can certainly make us buy TP. AND send a TSA worker to our homes to make sure we are using it!

You would think our resident $hit spewing troll crr6 would understand that since he needs to use TP to wipe the Shit off his mouth each time he opens it.

csdeven on December 17, 2010 at 7:14 PM

That’s ridiculous. I’ve listed limits on the ICC a bunch of times.

crr6 on December 17, 2010 at 7:10 PM

Yeah, I forgot. According to you, there are about two or three things the govt “can’t do”. Wonderful.

You still need to admit to being a socialist. Come on, come out of the closet, we all know it anyway. You shouldn’t be embarrassed.

BierManVA on December 17, 2010 at 7:18 PM

Yeah, I forgot. According to you, there are about two or three things the govt “can’t do”. Wonderful.

Well there are a lot of things. But you just seem to be upset that the government can do something that goes against your political views. I’m sorry, but just because you think a bill is a bad idea, doesn’t make it unconstitutional.

You still need to admit to being a socialist. Come on, come out of the closet, we all know it anyway. You shouldn’t be embarrassed.

BierManVA on December 17, 2010 at 7:18 PM

Are you having a bad day?

crr6 on December 17, 2010 at 7:22 PM

Who do you think pays for their treatment? The rest of society.

crr6 on December 17, 2010 at 4:31 PM

Failure of Socialism.

Make people pay for their own care. I do, why can’t they?

BierManVA on December 17, 2010 at 7:23 PM

You are an absolute FAILURE of a thinking human. I have news for your little brain: “LIVING LIFE” takes up 100% of GDP. Everything we do, eat, sleep, drive, work, etc. takes money and resources to do. When you say that “lack of health care forces others to spend money”, you are WRONG. It is a failure of SOCIALISM that causes govt to spend money on others.

The government takes money from us in the guise of helping the less fortunate and when it isn’t enough…when spending is more than the revenue they bring in, they take more, mandate more, steal our LIBERTY MORE! and idiots like you are so brainwashed that you can not even see the failures of the welfare state we live in.

The govt has no business in health care. Ever since they have been involved, manipulated the system and mandated coverage, it has done nothing but drive up cost. It has been a long term goal of politicians to control more of our lives and the time for it to stop is now. Enough is enough.

BierManVA on December 17, 2010 at 7:14 PM

At this point, I’m about 99% sure you’re the guy who occasionally screams at passing cars outside of my apartment.

crr6 on December 17, 2010 at 7:24 PM

Are you having a bad day?

crr6 on December 17, 2010 at 7:22 PM

I wasn’t until I started to read your socialist drivel.

Are you a socialist or not? Easy question.

BierManVA on December 17, 2010 at 7:25 PM

Make people pay for their own care.

BierManVA on December 17, 2010 at 7:23 PM

Exactly, they should. That’s why the mandate requires people to purchase health insurance.

Obama thanks you for your support!

crr6 on December 17, 2010 at 7:25 PM

At this point, I’m about 99% sure you’re the guy who occasionally screams at passing cars outside of my apartment.

crr6 on December 17, 2010 at 7:24 PM

If there are idiots driving them like you, then “yes, that’s me”

BierManVA on December 17, 2010 at 7:26 PM

Are you a socialist or not? Easy question.

BierManVA on December 17, 2010 at 7:25 PM

Jesus Christ, who are you, Joe McCarthy? No I’m not a “socialist,” dumbass.

crr6 on December 17, 2010 at 7:26 PM

At this point, I’m about 99% sure you’re the guy who occasionally screams at passing cars outside of my apartment.

crr6 on December 17, 2010 at 7:24 PM

If there are idiots driving them like you, then “yes, that’s me”

BierManVA on December 17, 2010 at 7:26 PM

bwhaha I knew it!

crr6 on December 17, 2010 at 7:27 PM

Exactly, they should. That’s why the mandate requires people to purchase health insurance.

Obama thanks you for your support!

crr6 on December 17, 2010 at 7:25 PM

Why can’t I pay cash for my care like I do for everything else I do?

BierManVA on December 17, 2010 at 7:28 PM

bwhaha I knew it!

crr6 on December 17, 2010 at 7:27 PM

So you admit to being an idiot. I finally respect you. A little anyway.

BierManVA on December 17, 2010 at 7:29 PM

Why can’t I pay cash for my care like I do for everything else I do?

BierManVA on December 17, 2010 at 7:28 PM

You pay everything in cash? How old are you, 16? Does mommy still give you an allowance? Maybe when you turn 18, you’ll get a nice shiny credit card in the mail!

ahhh, good times.

Anyway, to answer your question, you can still pay cash for health care, you just need to pay the tax penalty.

crr6 on December 17, 2010 at 7:31 PM

Exactly, they should. That’s why the mandate requires people to purchase health insurance.

Obama thanks you for your support!

crr6 on December 17, 2010 at 7:25 PM

Insurance is not care.

I think you answered my question above with this statement. Imagine what the ObamaCare approval ratings would be without party-line bleating ignorami such as yourself.

Chuck Schick on December 17, 2010 at 7:35 PM

Anyway, to answer your question, you can still pay cash for health care, you just need to pay the tax penalty.

crr6 on December 17, 2010 at 7:31 PM

Is that constitutional?

Yoop on December 17, 2010 at 7:40 PM

You pay everything in cash? How old are you, 16? Does mommy still give you an allowance? Maybe when you turn 18, you’ll get a nice shiny credit card in the mail!
crr6 on December 17, 2010 at 7:31 PM

Ignorance is bliss, isn’t it crr6?

If you must know, I will tell you. I am in my 40′s and retired. You read that right. I do use a credit card but it is a check card. No debt, nada, nill, zero. Including my house and land. And no, I did not inherit anything or win the lottery. I worked hard and made good decisions in life. Too bad you will never know what that means. You’ll be too busy looking for that next govt hand out.

BierManVA on December 17, 2010 at 7:46 PM

No, what’s doing the externalizing is when hospitals are forced to treat individuals who don’t have healthcare, and who are severely injured. Who do you think pays for their treatment? The rest of society.

crr6 on December 17, 2010 at 4:31 PM

First healthcare is what the hospital provides.

Second not having insureance does not inherantly mean not paying.

I was had an accident and didn’t have insurance. But you didn’t pay one thin dime for my care. I payed the bill in full, including interest.

Slowburn on December 17, 2010 at 8:13 PM

Point this out to any liberal friends and watch the shocked looks on their faces!
dominigan on December 17, 2010 at 3:53 PM

So much could be added to this, like.

Require them to hunt, skin and eat Bambi. After all at some point in time, say after a disaster, you may have to fend for yourself.

DSchoen on December 17, 2010 at 8:54 PM

Crr uhhh please. Yes you are a socialist and a joke to boot. Me bets daddy left you long ago…likely prior to your birth.

Also, you really should quit with the plaid flannel shirts and stretch denim pants.

CWforFreedom on December 17, 2010 at 8:58 PM

No, what’s doing the externalizing is when hospitals are forced to treat individuals who don’t have healthcare, and who are severely injured. Who do you think pays for their treatment? The rest of society.
crr6 on December 17, 2010 at 4:31 PM

According to the Obama admin. your wrong.

“The Department of Justice attorney representing the Obama administration argued that the food argument wasn’t relevant because at some point in time, everyone buys health care services.”

And the fact that “everyone buys health care services at some point in time” makes requiring people to buy health care insurance moot.

DSchoen on December 17, 2010 at 8:58 PM

You pay everything in cash? How old are you, 16? Does mommy still give you an allowance? Maybe when you turn 18, you’ll get a nice shiny credit card in the mail!
crr6 on December 17, 2010 at 7:31 PM

Funny coming from someone who lives and schools on the dole.

CWforFreedom on December 17, 2010 at 8:59 PM

The rest of society.
crr6 on December 17, 2010 at 4:31 PM

Every person in society? Really?

ahahahahahaha you’re an idiot.

CWforFreedom on December 17, 2010 at 9:00 PM

Yes crr, “non-economic” activity can’t be regulated. Which is…what, exactly? Inactivity is activity. Anything related to health care us an economic activity since health care is such a big part of the economy. What I eat or don’t eat affects my health care. Whether I exercise or not is an economic activity. The icc gives congress the ability to regulate my exercise schedule, if they so choose. In crr’s world, of course.

Good Solid B-Plus on December 17, 2010 at 9:10 PM

crr6, when I was in law school I could not afford to insure my daughter and took a risk. She had an accident mandating a couple of thousand dollars in hospital bills. I paid it in full on a payment plan I set up with the hospital, even though at the time I was a ‘struggling student.’ Why is personal responsibility so hard to grasp?

On the broccoli thing, well, how would government enforce the actual EATING of the broccoli? [you pay for healthcare insurance, you're insured] The point is to be healthy, and I guess under crr6′s reading of the ICC the gubmint could force me to buy it … but they can’t force it down my throat. On the other hand, an analogy to forced vaccinations might work…

Firefly_76 on December 17, 2010 at 9:18 PM

I don’t think that’s how they responded. The DOJ attorney said health care costs are distinguishable from the costs of food, because they are more unpredictable, and can be catastrophic. Meaning, sure everyone needs food, but the costs of that food won’t shift drastically over time and the demand for it is constant and easy to predict. But the need for health care services, (while also inevitable) is difficult to predict, and when the need does arise the costs can be extremely high.

Did you watch the oral argument?

crr6 on December 17, 2010 at 4:08 PM

So, at what point does a physicians diet recommendation carry the force of law?

BTW, while attending undergrad milk was $1.15/gal….it is now $4.5/gal. Gas was .99/gal, now it is $3.25. For other consideration, which is more likely in your lifetime an automobile accident or gall bladder surgery?

According to the government, regulating the purchase of everyday goods and services like groceries will not be’regulation of commerce’, but mandating individuals purchase a product they may or may not need at the time is. Pull the other one, it has bells on.

Fighton03 on December 17, 2010 at 9:54 PM

Good Solid B-Plus on December 17, 2010 at 9:10 PM

Careful here. Don’t start conflating “Commerce” with “economic activity”. VERY different concepts. Commerce is the “buying and selling of goods and services” while economic activity is any activity which impacts a financial decision. In other words, your choice of where to live is NOT commerce, but it IS an economic activity deciding where thousands of dollars in commerce will take place.

Fighton03 on December 17, 2010 at 9:58 PM

The rest of society.
crr6 on December 17, 2010 at 4:31 PM

How is this different than a tax payer status argument?

Fighton03 on December 17, 2010 at 10:02 PM

crr6 on December 17, 2010 at 3:59 PM

What “precedents”?

What Federal LAW requires ALL Americans to buy anything simply because they exist?

What “precedents” meets this criteria?
The test.
A Federal LAW.
Requires.
ALL Americans.
to buy anything.
because they exist.

DSchoen on December 17, 2010 at 10:21 PM

fighton, not my words. Crr has said that the icc can’t cover “non-econonic” activity. I’d simply like to know, by that definition, what is the extent of “non-economic” activity?

Good Solid B-Plus on December 17, 2010 at 10:56 PM

Good Solid B-Plus on December 17, 2010 at 10:56 PM

ahhh, sorry. I misinterpreted what you were saying. We both are making the same point.

Fighton03 on December 17, 2010 at 11:08 PM

Yes crr, “non-economic” activity can’t be regulated. Which is…what, exactly? Inactivity is activity. Anything related to health care us an economic activity since health care is such a big part of the economy. What I eat or don’t eat affects my health care. Whether I exercise or not is an economic activity. The icc gives congress the ability to regulate my exercise schedule, if they so choose. In crr’s world, of course.

Good Solid B-Plus on December 17, 2010 at 9:10 PM

I think it’s worth pointing out, I didn’t invent the limitations I’ve listed (can’t regulate noneconomic, criminal activity, can’t encroach on something which is traditionally the exclusive province of the states, can’t pile inference upon inference etc) they’re from Morrison and Lopez. For the most part, I agree with those limitations. And the mandate can be upheld as constitutional with those limitations intact.

To answer your question more specifically, I think regulating a decision to purchase or not purchase health insurance is plainly “economic,” in a way the other examples you listed are not (in that they’re only tangentially related to economic activity, and can only be linked to commerce by piling “inference upon inference” in a way that’s prohibited by both Lopez and Morrison.)

crr6 on December 17, 2010 at 11:58 PM

crr6, when I was in law school I could not afford to insure my daughter and took a risk. She had an accident mandating a couple of thousand dollars in hospital bills. I paid it in full on a payment plan I set up with the hospital, even though at the time I was a ‘struggling student.’ Why is personal responsibility so hard to grasp?

I wish everyone would be so responsible.

crr6 on December 18, 2010 at 12:02 AM

fighton, not my words. Crr has said that the icc can’t cover “non-econonic” activity. I’d simply like to know, by that definition, what is the extent of “non-economic” activity?

Good Solid B-Plus on December 17, 2010 at 10:56 PM

Purchasing health care is economic. Growing a commodity sold in an interstaete market (such as wheat or marijuana) is economic. The act of simply possessing a hand gun is noneconomic.

crr6 on December 18, 2010 at 12:03 AM

Purchasing health care is economic. Growing a commodity sold in an interstaete market (such as wheat or marijuana) is economic. The act of simply possessing a hand gun is noneconomic.

crr6 on December 18, 2010 at 12:03 AM

the simple act of possessing a handgun IS economic since it had to be purchased or transferred(check the regulations on firearms manufacturing).

Fighton03 on December 18, 2010 at 12:06 AM

What “precedents”?

What Federal LAW requires ALL Americans to buy anything simply because they exist?

What “precedents” meets this criteria?
The test.
A Federal LAW.
Requires.
ALL Americans.
to buy anything.
because they exist.

DSchoen on December 17, 2010 at 10:21 PM

This one.

crr6 on December 18, 2010 at 12:06 AM

the simple act of possessing a handgun IS economic since it had to be purchased or transferred(check the regulations on firearms manufacturing).

Fighton03 on December 18, 2010 at 12:06 AM

Congress could regulate the purchase or transfer of a firearm, but they can’t criminalize the possession of it. Possessing something is noneconomic.

crr6 on December 18, 2010 at 12:07 AM

Congress could regulate the purchase or transfer of a firearm, but they can’t criminalize the possession of it. Possessing something is noneconomic.

crr6 on December 18, 2010 at 12:07 AM

unless said regulations become onerous as to prevent possession I believe.

Fighton03 on December 18, 2010 at 12:09 AM

Possessing something is noneconomic.

crr6 on December 18, 2010 at 12:07 AM

Beating up a woman is noneconomic.

crr6 on December 18, 2010 at 12:11 AM

unless said regulations become onerous as to prevent possession I believe.

Fighton03 on December 18, 2010 at 12:09 AM

heh. Now that’s probably true, yeah.

crr6 on December 18, 2010 at 12:11 AM

This one.

crr6 on December 18, 2010 at 12:06 AM

a power which was SPECIFICALLY delegated via

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

and supported by an individual right protected in the BOR.

note that this law does not require the “inference upon inference” that it takes to make “commerce” mean the “absence of trade”.

Fighton03 on December 18, 2010 at 12:15 AM

crr6: You missed one.

Anyway, to answer your question, you can still pay cash for health care, you just need to pay the tax penalty.

crr6 on December 17, 2010 at 7:31 PM

Is that constitutional?

Yoop on December 17, 2010 at 7:40 PM

Yoop on December 18, 2010 at 12:18 AM

Beating up a woman is noneconomic.

crr6 on December 18, 2010 at 12:11 AM

unless you’re a pimp

Fighton03 on December 18, 2010 at 12:18 AM

btw crr, that was sarcasm….

Fighton03 on December 18, 2010 at 12:19 AM

a power which was SPECIFICALLY delegated via

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

I’m not sure what your point is. I wouldn’t cite that law as support for the individual mandate. I just use it when people here say “The government has never mandate that citizens purchase a private product.” It has, and in fact George Washington signed the bill himself.

note that this law does not require the “inference upon inference” that it takes to make “commerce” mean the “absence of trade”.

Fighton03 on December 18, 2010 at 12:15 AM

It doesn’t require piling inference upon inference. We’re talking about purchasing or not purchasing health insurance, or to put it in the formulation many here seem to prefer: “Purchasing or not purchasing a private product.” That’s plainly economic.

crr6 on December 18, 2010 at 12:21 AM

Possessing something is noneconomic.

crr6 on December 18, 2010 at 12:07 AM

and the priciple issue in Wickard was that he possessed the feed without commerce.

Fighton03 on December 18, 2010 at 12:22 AM

Is that constitutional?

Yoop on December 18, 2010 at 12:18 AM

Idk too much about the case law on the taxing and spending clause, to be honest. You’ll have to ask someone else.

crr6 on December 18, 2010 at 12:22 AM

Beating up a woman is noneconomic.

crr6 on December 18, 2010 at 12:11 AM

unless you’re a pimp

Fighton03 on December 18, 2010 at 12:18 AM

LOL, good one. I would love to see Congress criminalize prostitution, and then have the SG argue before SCOTUS that a pimp beating up a chick is “plainly an economic activity.”

crr6 on December 18, 2010 at 12:26 AM

crr6 on December 18, 2010 at 12:21 AM

I understand your point, but it is tantamount to Reductio ad absurdum (IMHO). The age and combination of law makes that example very tenuous, and actually serves to highlight the lacking of constitutional authority of the healthcare mandate.

Also, yes it does require inference upon inference. First, we must infer that everyone will incur healthcare (see christian scientists and 20 somethings who die traumatically), and that the lack of engaging in an activity is the activity itself.

Fighton03 on December 18, 2010 at 12:29 AM

LOL, good one. I would love to see Congress criminalize prostitution, and then have the SG argue before SCOTUS that a pimp beating up a chick is “plainly an economic activity.”

crr6 on December 18, 2010 at 12:26 AM

you mean ‘DE-criminalize’ right? But yeah…that would be as hilarious as a black eye :).

However, the const has provided a remedy….the individual right of the prostitute trumps the commercial power of the pimp. Hence..we call that criminal rather than civil.

Fighton03 on December 18, 2010 at 12:32 AM

also, the CC only affects state action. A pimp has no presumption of protection under clauses of the constitution.

but you knew that.

Fighton03 on December 18, 2010 at 12:33 AM

unless of course the pimp was a senator….

Fighton03 on December 18, 2010 at 12:33 AM

I understand your point, but it is tantamount to Reductio ad absurdum (IMHO). The age and combination of law makes that example very tenuous, and actually serves to highlight the lacking of constitutional authority of the healthcare mandate.

I wasn’t using it as authority for the mandate, I was just answering Dschoen’s question. I fully understand that law doesn’t support my argument, except to the extent it shows such a mandate isn’t fundamentally inconsistent with the view of the Founders.

Also, yes it does require inference upon inference. First, we must infer that everyone will incur healthcare (see christian scientists and 20 somethings who die traumatically), and that the lack of engaging in an activity is the activity itself.
Fighton03 on December 18, 2010 at 12:29 AM

I don’t understand why you guys keep getting caught up on the activity/inactivity distinction. There’s absolutely zero case law saying you can’t regulate inactivity, and there’s some that suggests you can (e.g. Heart of Atlanta where Congress regulated the motel owner’s refusal to engage in Commerce w/blacks). Furthermore, the law treats omissions as acts in all sorts of contexts. The best case scenario for you is that it’s an issue of first impression, in which case I’m not so sure why you always act as if the regulation of inactivity is clearly prohibited.

crr6 on December 18, 2010 at 12:35 AM

also, the CC only affects state action.

Fighton03 on December 18, 2010 at 12:33 AM

Hm? The 14th amendment is limited to state action, not the CC.

crr6 on December 18, 2010 at 12:37 AM

crr6 on December 18, 2010 at 12:35 AM

Heart of atlanta was based on the 14th, and protected the individual right of black travellers to engage in commerce. But yes, that is probably the strongest argument you have in this case and would produce some very interesting arguments.

We get “caught up” in this activity thing because of the definition of “commerce” and that it requires activity.

Until you brought up heartland, I would have argued that this WAS a case of first impression because Wickard only mandated that he couldn’t produce his own grain. Heartland actually requires commerce to take place. But then it does so under the authority of an amendment and assertion of individual right.

Fighton03 on December 18, 2010 at 12:42 AM

Hm? The 14th amendment is limited to state action, not the CC.

crr6 on December 18, 2010 at 12:37 AM

ummmm, no. All clauses of the constitution grant authority of action to ‘the state’, by definition.

Fighton03 on December 18, 2010 at 12:44 AM

how the heck did i get strike out????

Fighton03 on December 18, 2010 at 12:47 AM

But then it does so under the authority of an amendment and assertion of individual right.

Fighton03 on December 18, 2010 at 12:42 AM

It doesn’t though. Congress explicitly chose to pass the Title II of the CRA under the Commerce Clause NOT through Section 5 of the 14th amendment, because they knew they couldn’t reach private conduct (like the motel owner) through the 14th amendment due to the state-action limit.

So yeah, the Act was passed under the Commerce clause. That’s it. No “authority of an amendment” or “assertion of an individual right.”

crr6 on December 18, 2010 at 12:48 AM

ummmm, no. All clauses of the constitution grant authority of action to ‘the state’, by definition.

Fighton03 on December 18, 2010 at 12:44 AM

Yeah, I read your post wrong, nevermind.

crr6 on December 18, 2010 at 12:48 AM

I don’t understand why you guys keep getting caught up on the activity/inactivity distinction.

crr6 on December 18, 2010 at 12:35 AM

Sorry I haven’t been following closely, but I think its a fairly germane point that you cannot force someone into commerce in order to regulate them. Your argument proves too much. Almost anything can be reduced to being “economic.”

A decision whether or not to give blood clearly impacts the market in necessary blood. A decision whether or not to purchase pants(something everyone will eventually do), clearly impacts the clothing market.

You are so keen on labelling everyone here as disingenuous, secret groupies of the Raich decision or something and simply not liking liberal health reform. Why don’t you just admit that you don’t have a problem with economic coercion if it suits your liberal social ends?

Firefly_76 on December 18, 2010 at 12:49 AM

crr6 on December 18, 2010 at 12:48 AM

I was referring specifically to the decision. You are right abotu congress not being able to reach private conduct. Thank you for providing an argument against the mandate btw.

The CC fails when pushed against the individual right to engage in commerce, and since you have chosen to argue that there is no distinction between engagement and avoidance, an individual right to AVOID commerce.

Fighton03 on December 18, 2010 at 12:52 AM

poor comma placement

Fighton03 on December 18, 2010 at 12:55 AM

You are right abotu congress not being able to reach private conduct. Thank you for providing an argument against the mandate btw.

Of course Congress can regulate private conduct. No one disputes that (right?). I was just saying it can’t do so through Section 5 of the 14th amendment (because of the state action limit).

The CC fails when pushed against the individual right to engage in commerce, and since you have chosen to argue that there is no distinction between engagement and avoidance, an individual right to AVOID commerce.

Fighton03 on December 18, 2010 at 12:52 AM

I’m not sure what you’re getting at here, but it’s probably because I’m tired, and I need to get up pretty early tomorrow (still have one more final…) G’night!

crr6 on December 18, 2010 at 12:57 AM

No one disputes that (right?). I was just saying it can’t do so through Section 5 of the 14th amendment (because of the state action limit).

I’ll accept a push on this one. Congress cannot reach private conduct outside of delegated powers and those protected by the BOR.

I’m not sure what you’re getting at here, but it’s probably because I’m tired, and I need to get up pretty early tomorrow (still have one more final…) G’night!

crr6 on December 18, 2010 at 12:57 AM

What I’m getting at is that congress recognized it couldn’t MANDATE commerce.

Good luck on your finals. IMO, This is one of your better arguments.

Fighton03 on December 18, 2010 at 1:01 AM

crr6 on December 18, 2010 at 12:57 AM

must be some serious studying if you’re getting up early on a Sat.

Fighton03 on December 18, 2010 at 1:03 AM

The big issue is it will not be stopped short of THE SCOUS. Dyke Keagen was Solicitor General and involved in drafting this legislation. She will of course recuse herself as it was discussed during her nomination.
So sad.

seven on December 17, 2010 at 6:42 PM

a SCOTUS tie will be VERY scary. Can you imagine the political arm twisting behind lady justice?

Chicago politics at it’s heart.

Fighton03 on December 18, 2010 at 1:22 AM

At this point, I’m about 99% sure you’re the guy who occasionally screams at passing cars outside of my apartment.

crr6

Which means even the people who scream at cars have more sense than you.

You have no argument. You know it, I know it, and everyone else here knows it. Government has no authority to do what it’s trying to do, no matter what kind of commie crap you try to pull out of your ass.

Sadly though, that doesn’t really matter. If 5 judges say communism is ok, it’s ok, even if it isn’t. And that’s why this country is walking on thin ice. Obamacare will break through it.

xblade on December 18, 2010 at 3:26 AM

Using the Militia Act of 1792 to defend Obamacare is the height of idiocy.

csdeven on December 18, 2010 at 7:31 AM

crr6 would shill for anything Obama inflicts on this nation. It’s a crap bill and she knows it, but because she proudly pulled that Dem lever and cried for Teh One on Inauguration Day, it’s all good in her mind.

You’re attempts to condone this piece of crap are pathetic, crr6. When the mandate goes down in flames, will you at least come back here and explain to all us plebians why you were so shamefully wrong and ideologically blind all these months? Or will you just scurry away like all the other socialist Sorosbots?

Grace_is_sufficient on December 18, 2010 at 7:41 AM

Make that “your attempts”. Sorry.

Grace_is_sufficient on December 18, 2010 at 7:42 AM

The bottom line is the mandate isn’t about regulating economic activity, it’s extorting money from people to pay for the health care of others.

The Obama administration has even admitted that ObamaCare is useless without the mandate because there won’t be enough money to pay for, or subsidize others. They didn’t say economic activity would be affected, they said their shytty program won’t work.

darwin on December 18, 2010 at 8:00 AM

Crr, as far as “handgun possession is noneconomic activity,” that was the finding in lopez, but do you agree? Would you have voted with the majority? I always figured you’d follow breyer’s tact during oral arguments.

Good Solid B-Plus on December 18, 2010 at 1:54 PM

Crr, as far as “handgun possession is noneconomic activity,” that was the finding in lopez, but do you agree?

Good Solid B-Plus on December 18, 2010 at 1:54 PM

Yep. All Morrison and Lopez are saying is that the actual thing you’re regulating should itself be of an economic nature, you can’t take something that people wouldn’t normally think of as economic (like handgun possession, or beating your wife) and then call it economic by “piling inference upon inference.” I agree with that.

crr6 on December 18, 2010 at 2:36 PM

The reason the DOTUS can smile so smugly in his interview with Barbara Walters is that he GOT OBAMACARE DONE…..

He can now regulate everything!!

PappyD61 on December 19, 2010 at 4:09 PM

I hope this judge has courage and does the right thing. Obamacare’s mandate simply isn’t constitutional . . . . and paraphrasing the liberal mantra “it isn’t the right thing to do”.

kens on December 20, 2010 at 3:24 PM

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