Video: Lack of severability in ObamaCare a “colossal mistake”

posted at 2:15 pm on February 2, 2011 by Ed Morrissey

Or was it?  Larry O’Donnell blames Democrats for rushing the ObamaCare bill to a vote and forgetting to insert the severability clause, but Jonathan Turley isn’t buying the post-Florida verdict spin from Capitol Hill.  He suggests that Democrats deliberately left out the severability clause as a triple-dog dare to judges.  Take out the mandate, the strategy goes, and lose all of the goodies in the rest of the bill! Unfortunately for Democrats, they lost this particular round of “chicken.”  Newsbusters has the video and the transcript:

O’DONNELL: Jonathan, the Democrats made a mistake of not writing into the law that the bill is what they call “severable,” meaning if courts find bits of it unconstitutional, they can simply sever those bits from the rest of the law. Democrats insist that severability is implicit in this kind of law. Who’s right?

TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills. It is not clear why it was kept out. Some people say it was a blunder. Other suggests and I know you know, there’s some suspicion that it might be a sort of game of chicken, that they wanted to make clear, if you take out the individual mandate, you are risking the entire bill to sort of give these judges a bit of sticker shock.

But either way, it was a mistake. It opened the door to allow a judge like Judge Vinson to strike the entire act. Now, it is certainly true that you do not need a severability clause for a judge to sever provision. And, in fact, that’s exactly what Judge Hudson did in the Virginia. He was encouraged to strike down the entire law of Virginia and he chose not to. I agree with that decision. I think he did the right thing there.

But, the Democrats really laid themselves open in how they drafted this act. Judge Vinson is not, you know, totally out of line in saying that severability was put at issue when they did not include the clause. The interesting thing is the severability clause was in an earlier draft of the legislation and was removed.

Something that Judge Vinson notes in his opinion.

O’DONNELL: I can tell you, Jonathan, that’s exactly the kind of mistake that occurs at the staff level when they are in these panic writings, last-minute writings of the legislative language of these bills – - things that they intend to be in there like a severability clause can easily slip out in the word processing.

I’m not buying the gee-whiz-look-what-we-forgot explanation.  In the age of word processors, bills don’t get rewritten by hand or from scratch; they get worked and reworked by components.  The severability clause existed in prior versions, which means that someone made the decision to remove it.  Vinson didn’t buy it either, noting in his ruling that the removal of that clause showed the intent to make the bill an all-or-nothing proposition, and for good reason, as the mandate was central to the economics of the plan.

Even if one was tempted to buy the Democratic spin on the bill, it only moves the ball from deliberate brinksmanship with the judiciary to sheer incompetence.  One of the main complaints about ObamaCare was the process by which it was written.  Democrats insisted on drafting it in secret, and then dumping it on the floor of the House and Senate with just hours to review almost 3000 pages of material.  Since its passage, the bill’s flaws have only multiplied, including an idiotic requirement for 1099s on routine, small transactions that will bury small business and the IRS in a flood of paperwork.  This is just the latest miscalculation to come to light, and it won’t be the last.

If it was deliberate strategy, the triple-dog dare has clearly backfired.  Not only has it resulted in 26 states being freed for the moment of compliance with ObamaCare, the sweeping nature of the ruling has made it at least a little more likely that the Supreme Court will accept an expedited review of the case — and as I wrote earlier, that’s bad news for Democrats and Obama if it happens.  Be sure to read all of Noel Sheppard’s post at Newsbusters for further thoughts on that point.


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Charles Fried saying that the mandate is constitutional, however, is news. That’s something people didn’t know before. Say what you will about the merits of his opinion, but the fact that he’s stated unequivocally that the mandate is constitutional is kind of a big deal. It’d be like if Erwin Chemerinsky were to say that the mandate was unconstitutional or something.

Proud Rino on February 2, 2011 at 7:33 PM

Say what? See Fried’s Op Ed of May 2010. This is NOT news.
http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2010/05/21/health_care_laws_enemies_have_no_ally_in_constitution/

4of8 on February 2, 2011 at 7:40 PM

Say what? See Fried’s Op Ed of May 2010. This is NOT news.

4of8 on February 2, 2011 at 7:40 PM

Well, it was news to me, and isn’t that what really matters?

Proud Rino on February 2, 2011 at 7:43 PM

Proud Rino on February 2, 2011 at 7:37 PM

So much debate that Nancy P essentially told everybody to shut up. So much so that most that voted for it didn’t read it. Your point is without merit. You’re just spinning.


But we have to pass the bill so that you can find out what is in it

CWforFreedom on February 2, 2011 at 7:43 PM

Well, it was news to me, and isn’t that what really matters?

Proud Rino on February 2, 2011 at 7:43 PM

What a simpleton.

CWforFreedom on February 2, 2011 at 7:44 PM

Say what? See Fried’s Op Ed of May 2010. This is NOT news.

4of8 on February 2, 2011 at 7:40 PM
Well, it was news to me, and isn’t that what really matters?

Proud Rino on February 2, 2011 at 7:43 PM

Only in your dreams.

4of8 on February 2, 2011 at 7:44 PM

Proud Rino on February 2, 2011 at 7:37 PM

Obama said during the campaign that the mandate was like forcing people to buy a house and take on a mortgage to combat homelessness…where is the debate to that comment?

Your really have no argument. Give it up.

ladyingray on February 2, 2011 at 7:44 PM

Proud Rino on February 2, 2011 at 7:43 PM

Only in your dreams.

4of8 on February 2, 2011 at 7:44 PM

That was her way of saying “OOPs I am busted”

CWforFreedom on February 2, 2011 at 7:45 PM

Obama said during the campaign that the mandate was like forcing people to buy a house and take on a mortgage to combat homelessness…where is the debate to that comment?

Your really have no argument. Give it up.

ladyingray on February 2, 2011 at 7:44 PM

The issue at this point is whether it’s constitutional, not whether it’s a good idea. If Republicans had made hay over those comments during the debate to pass the bill, then OK. They didn’t. We’re having a different discussion now.

Only in your dreams.

4of8 on February 2, 2011 at 7:44 PM

I was joking. I confess that I do not closely follow all the op-eds written by prominent legal scholars. After all, my smart alecky trolling comments aren’t going to write themselves!

Proud Rino on February 2, 2011 at 7:48 PM

Barnett demolishes Fried’s point:

Finally there is the bogus complaint that the federal law unconstitutionally imposes financial and administrative burdens on unwilling states. The statute exempts unwilling states from participating, subjecting the citizens of those states to the federal scheme directly.

(That first sentence puts the lie to the claim by Fried that he is impartial in this.)

Barnett:

Just as commandeering state governments is an unconstitutional infringement of state sovereignty, commandeering the people violates the even more fundamental principle of popular sovereignty. After all, the Tenth Amendment reads: “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.”

So the same out that Congress felt compelled to give to states because of the 10th must also be given to individuals.

pedestrian on February 2, 2011 at 7:49 PM

I bet PR avoids Ped’s post like the plague.

CWforFreedom on February 2, 2011 at 7:51 PM

Obama said during the campaign that the mandate was like forcing people to buy a house and take on a mortgage to combat homelessness…where is the debate to that comment?

Your really have no argument. Give it up.

ladyingray on February 2, 2011 at 7:44 PM

The issue at this point is whether it’s constitutional, not whether it’s a good idea. If Republicans had made hay over those comments during the debate to pass the bill, then OK. They didn’t. We’re having a different discussion now.

Only in your dreams.

4of8 on February 2, 2011 at 7:44 PM

I was joking. I confess that I do not closely follow all the op-eds written by prominent legal scholars. After all, my smart alecky trolling comments aren’t going to write themselves!

Proud Rino on February 2, 2011 at 7:48 PM

Again the dishonest puke you are finds away to avoid Obama’s point. You are so predictable.

Got a life yet?

CWforFreedom on February 2, 2011 at 7:52 PM

Democrats did not want to have to vote again, so they let it ride without.

tarpon on February 2, 2011 at 7:56 PM

Proud Rino on February 2, 2011 at 7:48 PM

It has been deemed unconstitutional in toto

ladyingray on February 2, 2011 at 8:01 PM

i dont trust the regime. It wouldn’t surprise me if they left it out knowing the entire mess would be thrown out. Then blame the right for it.

screwauger on February 2, 2011 at 8:06 PM

It has been deemed unconstitutional in toto…

ladyingray on February 2, 2011 at 8:01 PM

And two other USDC judges have held that it was constitutional.

Just because a district court judge says something doesn’t mean the argument is over, especially when other USDC judges have held to the contrary, especially when it’s an issue that’s obviously going to go in front of SCOTUS.

Proud Rino on February 2, 2011 at 8:07 PM

Uh oh.

Proud Rino on February 2, 2011 at 6:00 PM

So, a lefty professor, from lefty Harvard, quoted in a lefty web publication, thinks the mandate works?

Cool!
We can all stop arguing now; the elites have spoken.

Good job, Proud Rino.

massrighty on February 2, 2011 at 8:26 PM

A central theme of the Democratic primary was health care reform – that was in 2007-2008. Obama started pushing for health care reform in the spring of 2009 – remember all the town hall debates where everyone was screaming? Remember Sarah Palin calling palliative care death panels? She did that in August of 2009 – 7 months before the final bill was passed.

The Senate Bill that was passed in December was proposed in September. The final bill passed by the House didn’t pass until late March or so.

Proud Rino on February 2, 2011 at 7:37 PM

You mean the Barack Obama who said he would not support an individual mandate? That he would not sign a bill that increases the deficit? That he would have ALL negotiations on the bill shown live in C-SPAN? That he would not make any deals with special interests like Big Pharma and the insurance companies?

What happened to that guy?

rockmom on February 2, 2011 at 8:27 PM

You mean the Barack Obama who said he would not support an individual mandate? …

What happened to that guy?

rockmom on February 2, 2011 at 8:27 PM

He came around to it when they explained to him that the mandate only applies to some people. Then he realized it was part of “moving wealth around”* and he was on board.

* – not to be confused with interstate commerce

pedestrian on February 2, 2011 at 8:52 PM

Proud Rino on February 2, 2011 at 8:07 PM

Wrong.

ladyingray on February 2, 2011 at 9:22 PM

Well, it was news to me, and isn’t that what really matters?

Proud Rino on February 2, 2011 at 7:43 PM

Only in your dreams.

4of8 on February 2, 2011 at 7:44 PM

I was joking. I confess that I do not closely follow all the op-eds written by prominent legal scholars. After all, my smart alecky trolling comments aren’t going to write themselves!
Proud Rino on February 2, 2011 at 7:48 PM

I was joking too. There is a thing called Google that allows you to pull up old Op Ed pieces in a heartbeat. I’ve never understood why anyone would follow a legal scholar, but that is another subject entirely.

4of8 on February 2, 2011 at 9:29 PM

How did The Tides Foundation overlook this clause when they wrote this monster bill?

LoneStarGal on February 2, 2011 at 10:00 PM

Wow, a lot to learn from this post. Vinson is using a form of “strict construction” — he’s gone over earlier versions of the bill in an attempt to discern the intent of the “framers”. Well, such thinking may not last in the rarefied atmosphere of the Supreme Court, where “strict construction” is a non-starter for nearly half of the Justices.

unclesmrgol on February 2, 2011 at 10:11 PM

Crr6,

Thanks for indulging me. What I said earlier wasn’t so much directed towards your argument thesis, but was rather intended to suggest that when challenged to present more substance (as others have done, and as I thought I had done earlier — though maybe I imagined that as well — and as I’m about to try to do shortly), you seem to simply appeal to various subjective authorities (or the occasional *LOL*). My comment was apparently overly vague, though, and not very constructive to begin with, so I apologize.

Here’s what you presented

No, I don’t think I appealed to any of those things when I made the substance of my argument here:

Basically the DOJ’s strongest argument is that the mandate is constitutional under the Necessary and Proper clause. The Necessary and Proper clause empowers Congress to pass laws which are a necessary (and…you guessed it, proper!) means to the an enumerated end. That is, it allows Congress to pass a law that isn’t necessarily authorized by another enumerated power, as long as that law is a necessary means to carrying out an enumerated power.

Now, applied to the instant case, the enumerated end is regulating the health insurance market (by prohibiting insurers from excluding people due to them having pre-existing conditions). No one (not even Vinson) denies that Congress has the power to do that under the Commerce clause, because there’s a case explicitly saying so (U.S. v. South-Eastern Underwriters). The mandate then, is a necessary and proper means to that enumerated end because, as you’ve all pointed out, the regulation of insurers falls apart without it. Therefore, it’s Constitutional under the Necessary and Proper clause, even if it’s not independently sustainable under the Commerce clause.

crr6 on February 2, 2011 at 3:31 PM

Perhaps you’re imagining them.

crr6 on February 2, 2011 at 5:12 PM

Now, applied to the instant case, the enumerated end is regulating the health insurance market (by prohibiting insurers from excluding people due to them having pre-existing conditions).

First, I’m curious what you mean by “enumerated end?” If that’s in reference to enumerated powers, then I think you’ll be hard pressed to apply N&P w/r/t any explicitly enumerated powers. You cite a case that does indeed grant the Fed jurisdiction in anti-trust regulation in the insurance industry (right?), but that’s not the same as arguing that the Fed nec. gets itself specifically involved aside from that in the commerce of insurance. IOW, it’s different to state that the anti-trust regulation extends into the insurance market vs. that the enumerated commerce regulating power nec. extends to the insurance market. Is the Fed bound by N&P to intervene to ensure that all commercial markets succeed? If not, then what is the distinction? If I decided to start up a company that sells pocket lint all over the country, would the Gov. be bound by N&P to preserve this new commercial market of pocket lint? Obama’s example of the housing market was probably better than mine :)

Secondly, the measure you suggest specifically seems to run into some issue because it would seem to re-define “insurance,” at least as I understand it. Can one insure against something that’s already happened? It seems incoherent, but if the insurers are willing to do so, then nothing’s stopping them from doing that now (if the price were right), which raises another issue: the Fed’s role of forcing contractual agreements. There may be some precendent in cases of illegal discrimination, but I would think the onus would be on the accusers to establish those with pre-existing conditions as a protected class in terms of insurance contracts. This seems like a prickly issue, especially in light of the nature and definition of insurance. I know car insurance is not a perfect metaphor, but even that law doesn’t say that insurance companies have to insure people with, for example, the pre-existing conditions of DUI convictions, exhorbitant traffic citations, etc…at least not that I’m aware of. Maybe I’m mistaken, though.

No one (not even Vinson) denies that Congress has the power to do that under the Commerce clause, because there’s a case explicitly saying so (U.S. v. South-Eastern Underwriters).

I don’t have much of a problem with this, but I would be careful to keep track of what “that” means. If you mean simply that the Fed is authorized to regulate the health care industry, then the cited case does seem to establish that precedent. Maybe I’m misreading you, but you seem to have a problem with arbitrary equivocation, so I want to make sure I know what “that” is before agreeing to it.

The mandate then, is a necessary and proper means to that enumerated end because, as you’ve all pointed out, the regulation of insurers falls apart without it. Therefore, it’s Constitutional under the Necessary and Proper clause, even if it’s not independently sustainable under the Commerce clause.

Here you make tremendous leaps and seem to beg the question. The first problem is that [allowed to regulate] =/= [regulation is necessary & proper], AND [regulation being generally recognized as N&P] =/= [Obamacare is good, Constitutional implementation of said regulation]. That’s like arguing that since regulation is needed to prevent monopolization, then ANY law suggesting a means of breaking monopolies is therefore necessary and proper.

I don’t know if it’s dishonesty or careless equivocation, but you’re also ascribing consent to a group that has not consented to what you’re stating. “we’ve” all pointed out that the mandate is necessary for the sustainability of Obamacare, but we have not consented to the notion that it is a necessary for the sustainability for any arbitrary law that seeks to regulate the insurance market. For example, if Congress mandated that insurance companies provide insurance to people with pre-existing conditions, but that the insurance companies could decide the cost for such things and/or figure out ways to absorb the costs of such a measure, then I wouldn’t necessarily be thrilled with such legislation, but it would be a “valid” bill addressing the “problem” that wouldn’t rely on individual mandates for sustainability. IOW, you seem to be presuming too much of a concession, and building your very argument on that. (That’s what I tried to allude to in one of my previous posts)

Furthermore, we’ve questioned the premise that this type of law is N&P for regulating the market; we’ve questioned the N&P application of the Fed trying to specifically regulate the insurance market altogether; and we’re questioned the feasibility of redefining “insurance” (see: above) and “commerce” (to encapsulate a lack of commerce) as a basis for taking these actions.

I appreciate you re-summarizing your position as you have, but there still seems to be quite a bit missing in the way of arguments.

BlueCollarAstronaut on February 2, 2011 at 10:32 PM

Can you name 2 or 3 health insurance companies that operate across state lines?

Del Dolemonte on February 2, 2011 at 6:59 PM

Sure, Aetna, Cigna, and UnitedHealthGroup.

crr6 on February 2, 2011 at 7:06 PM

Very Funny! Especially citing Aetna. How’s their CEO doing these days?

Now please answer the question.

Del Dolemonte on February 2, 2011 at 10:55 PM

It has been deemed unconstitutional in toto…

ladyingray on February 2, 2011 at 8:01 PM

And two other USDC judges have held that it was constitutional.

Just because a district court judge says something doesn’t mean the argument is over, especially when other USDC judges have held to the contrary, especially when it’s an issue that’s obviously going to go in front of SCOTUS.

Proud Rino on February 2, 2011 at 8:07 PM

Spoken like a true Judicial Activist.

It’s interesting to note that during the attempted theft of a Presidential Election in Florida in 2000 by the Democrat Party, the vast majority of the decisions against the sore loser were handed down by Democrat Federal Judges.

Then the All-Democrat Florida Supreme Court injected itself into the issue unsolicited, and then proceeded to re-write Florida Election Law after the election had taken place in order to achieve the result they desired. SCOTUS laughed them out of the building with back to back 9-0 and 7-2 shellackings, and then a final 5-4 slapping on the remedy.

Del Dolemonte on February 2, 2011 at 11:05 PM

So, a lefty professor, from lefty Harvard, quoted in a lefty web publication, thinks the mandate works?

massrighty on February 2, 2011 at 8:26 PM

Not really sure how Fieid’s a lefty, since he’s been a Federalist Society member since its inception and he was Reagan’s Solicitor General. I’m also not really sure how Harvard Law itself is inherently “lefty,” considering it’s produced Justices Roberts and Scalia. Finally, I’m not sure why it matters that the link was to a lefty publication, unless your claiming they’re misquoting him or something.

All in all, another well-reasoned post by massrighty.

crr6 on February 2, 2011 at 11:48 PM

crr6: maybe now that things have calmed down you might answer my question from earlier:
How and where do you draw the line? Is there anything which limits the expanse of federal government?
These are not rhetorical questions, and I don’t want to debate your answers. I am curious.

topdog on February 3, 2011 at 12:00 AM

How and where do you draw the line? Is there anything which limits the expanse of federal government?
topdog on February 3, 2011 at 12:00 AM

Well let’s be clear what we’re talking about when we say limits. When you say limits, I think you mean judicially enforced limits. That is to say, you mean limits on what Congress can do, which are created by Supreme Court Justices under their interpretations of the Constitution. Is that correct?

crr6 on February 3, 2011 at 12:16 AM

Yes, that is the question, unless you believe other mechanisms should deterrmine the limits.

topdog on February 3, 2011 at 12:25 AM

Yes, that is the question, unless you believe other mechanisms should deterrmine the limits.

topdog on February 3, 2011 at 12:25 AM

Ok, that’s a fair question. And I think there should be judicially enforced limits on both the Commerce clause and the Necessary and Proper clause.

But before we talk about those, I think it’s important to note that there are other constitutional checks on Congressional power which are not judicially enforced. For example, if Congress decided to declare war on Canada tomorrow, is there anything a court could do about it? The answer is no, Congress’ substantive decision to declare war is completely non-justiciable. So what’s to protect us from Congress declaring war on random countries just because it feels like it?

crr6 on February 3, 2011 at 12:37 AM

crr6 on February 3, 2011 at 12:37 AM

crr6 on February 3, 2011 at 12:37 AM

I feel myself getting pulled into an exchange when what I was looking for was your point of view, but I will go along, as long as you promise to keep one arm tied behind your back.

What keeps congress frm abusing its power to declare war is its own collective judgment, subject to the veto of the prez. If congress does abuse this power, then the people are empowered to vote congress out, but by then it is too late.

topdog on February 3, 2011 at 12:48 AM

What keeps congress frm abusing its power to declare war is its own collective judgment, subject to the veto of the prez. If congress does abuse this power, then the people are empowered to vote congress out, but by then it is too late.

topdog on February 3, 2011 at 12:48 AM

That’s correct. There are democratic as well as judicial checks on Congress’ power, and it’s important to remember that those democratic checks are still Constitutionally-based ones (because of course, the Constitution provides for elections).

So we have judicially enforced limits, and democratically enforced limits. Yet we rely solely on those democratic limits in many circumstances. For example, tomorrow Congress could, if it wishes, 1) declare war on Canada; 2) impose a 100% income tax rate; and 3) impeach President Obama based on nothing more than a coin flip, and none of those things would be reviewable by a court. Yet despite the lack of judicially enforced limits over those actions…nothing close to them has ever happened in American history. Why is that? It’s because our democratic limitations work pretty well, overall. We generally don’t elect people who would do crazy things like that, and if they did anyway, we’d swiftly vote them out.

So in sum, what we’re discussing here is not whether there should be any limitations on Congress’ power, it’s what type of limitations we should have. More specifically, we’re debating to what extent we should impose judicially imposed limitations, rather than relying solely on democratic limitations.

Would you agree?

crr6 on February 3, 2011 at 1:07 AM

Pretty close. I am primarily interested in what those judicially imposed limitations are or should be.

Vinson’s opinion, I think, asks the question (or at least begs the question): if this is not the limit, then what is?
I have not been able to get a clear answer to that question. If you could adequately answer that question, I believe you could end the debate. That is, after all, what motivates the conservative side.

topdog on February 3, 2011 at 1:19 AM

What keeps congress frm abusing its power to declare war is its own collective judgment, subject to the veto of the prez. If congress does abuse this power, then the people are empowered to vote congress out, but by then it is too late.

topdog on February 3, 2011 at 12:48 AM

The wisdom and the discretion of Congress, their
identity with the people, and the influence which their
constituents possess at elections, are, in this, as in many
other instances . . . the sole restraints on which they
have relied, to secure them from its abuse.

Chief Justice Marshall

Great minds think alike!

topdog on February 3, 2011 at 1:33 AM

Pretty close. I am primarily interested in what those judicially imposed limitations are or should be.

Vinson’s opinion, I think, asks the question (or at least begs the question): if this is not the limit, then what is?
I have not been able to get a clear answer to that question. If you could adequately answer that question, I believe you could end the debate. That is, after all, what motivates the conservative side.

topdog on February 3, 2011 at 1:19 AM

Well the thing is, the “if this, then anything” argument has been used repeatedly in American history, and clearly each previous time it’s been used, it has been erroneous because, well…it continues to be used. If the creation of the Bank of America had destroyed all limits on federal power, we wouldn’t be having a discussion about the limits on federal power today, would we? For a fun and easy illustration of my point, read pretty much any dissent in a Commerce clause case where the Court upholds the law. The dissenter will inevitably say “because of this case, there are no limits on federal power.” Now read the next Commerce clause case where the law is upheld. Sure enough, the dissent will say “well, now there are no limits on federal power.” But wait, I thought those limits were already gone?

So you see why I’m skeptical of the “if this, then anything” argument to begin with. I think it’s generally a not-so-well-disguised manifestation of the slippery slope or parade of horribles fallacy, and it has little logical force.

But to answer your question more specifically (because you surely must be getting impatient, and I surely should be getting to bed), I think that the current law on the Commerce clause is actually pretty good, and the health care law can be upheld without significantly expanding the current case law.

So I think the Commerce clause should be limited to regulating noncriminal, economic activity which, taken in the aggregate, substantially affects interstate commerce. And I don’t think Congress should be able to pile “inference upon inference” to make activity which isn’t closely related to economic concerns, reachable by the Commerce clause. Finally (and obviously) I think that Congress shouldn’t be able to pass a law pursuant to the Commerce clause that would violate another provision of the Constitution.

So those are the judicially enforced limits I think should exist. I hope that answers your question.

crr6 on February 3, 2011 at 1:37 AM

I have not been able to get a clear answer to that question. If you could adequately answer that question, I believe you could end the debate.
topdog on February 3, 2011 at 1:19 AM

I’d like to add, I don’t think anything I say would end the debate. Because, while we both would agree there must be limits on Congress’ power, and we both agree that some of those limits should be judicially enforced, we still have fundamentally different normative visions of what the government should do and of what those limitations should be.

crr6 on February 3, 2011 at 1:42 AM

So those are the judicially enforced limits I think should exist. I hope that answers your question.

crr6 on February 3, 2011 at 1:37 AM

Thank you. I guess we aren’t so far apart. The fear I share with many is that the line keeps getting moved primarily in one direction, little by little, decade by decade, by those who would have no limits on the scope of the federal government.

By the way,crr6, I was very impressed with how you took on all comers today. I disagree with your politics; I disagree with your reading of the Constitution; but I respect your knowledge and reasoning, and your ability to make effective arguments. Wish you were on our side, but glad we are both on the side of truth.

topdog on February 3, 2011 at 1:49 AM

Sorry about the formatting. Let me try again:

So those are the judicially enforced limits I think should exist. I hope that answers your question.

crr6 on February 3, 2011 at 1:37 AM

Thank you. I guess we aren’t so far apart. The fear I share with many is that the line keeps getting moved primarily in one direction, little by little, decade by decade, by those who would have no limits on the scope of the federal government.

By the way,crr6, I was very impressed with how you took on all comers today. I disagree with your politics; I disagree with your reading of the Constitution; but I respect your knowledge and reasoning, and your ability to make effective arguments. Wish you were on our side, but glad we are both on the side of truth.

topdog on February 3, 2011 at 1:50 AM

By the way,crr6, I was very impressed with how you took on all comers today. I disagree with your politics; I disagree with your reading of the Constitution; but I respect your knowledge and reasoning, and your ability to make effective arguments. Wish you were on our side, but glad we are both on the side of truth.

topdog on February 3, 2011 at 1:50 AM

Likewise. It was a pleasure!

crr6 on February 3, 2011 at 2:05 AM

topdog out

topdog on February 3, 2011 at 2:08 AM

Geez louise, who cares what a law student thinks about Barrycare. The legal authority on this is Mark Levin who is a Constitutional expert. His shows this week talk all about what the States should do now to force Barry and his boobs to play their next hand. Barry’s boobs can only appeal and if they don’t, the healthcare bill is DEAD. If Barry’s HHS and other departments ignore the court order, it’ll be seditious. Yesterday’s show highlights the legal strategies the States should take now. They can’t severe the individual mandate because it’s essential to the bill and Barry and his boobs made that perfectly clear. http://www.marklevinshow.com/sectional.asp?id=32930

Renwaa on February 3, 2011 at 4:27 AM

@Renwaa,

Ditto and right on. Mark is the real deal, while BHO is the pretender (Constitutional “expert”…hah!). I don’t recall ever hearing of BHO being consulted nor bringing a case to the SCotUS, so it must be that someone decreed that he is able to interpret the Constitution ‘expertly’…has BHO ever even *been* in court representing a client?!?

All action involving the emplacement of Obamacare must be halted otherwise our system is broken.

Geministorm on February 3, 2011 at 10:19 AM

There’s a problem with pushing an ‘expedited’ review by the Supreme Court. It’s quite obvious that at least 3, and possibly 4 justices, especially the ‘wise Latina’, believe there should be no constitutional limits to federal power regarding so-called ‘social justice’ issues. Just like the abolitionists in the aftermath of the Dred Scott decision we Constitution supporters need to be ready for action if there’s an adverse 5-4 ruling.

kd6rxl on February 3, 2011 at 12:46 PM

Geez louise, who cares what a law student thinks about Barrycare.

Renwaa on February 3, 2011 at 4:27 AM

Who cares? Anyone who has the humility to think they might learn something new. I learn more from interacting with people I disagree with than the usual “rah, rah, isn’t our side great” mentality. Why do you crr6 is so good at debating from the other side? She engages with people she disagrees with!

topdog on February 3, 2011 at 3:20 PM

Lack of severability in ObamaCare a “colossal mistake”

(Fixed headline: eliminated superfluous qualification clause)

landlines on February 3, 2011 at 9:19 PM

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