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How Antonin Scalia May Save The Individual Mandate

Yesterday’s decision by Judge Roger Vinson has once again revived the ongoing legal battle over the constitutionality of the individual health insurance mandate. In that regard, it’s worth taking note that a concurring opinion by one of the Supreme Court’s most conservative justices may end up being the argument that saves Obamacare:

Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.

At issue in that case — just like in the upcoming challenges to the healthcare overhaul — was the reach of the federal government’s power.

Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.

They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority “to regulate commerce.”

Even “noneconomic local activity” can come under federal regulation if it is “a necessary part of a more general regulation of interstate commerce,” Scalia wrote.

It’s worth quoting at length from Scalia’s concurrence in that case, Gonzalez v. Raich:

The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

(…)

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36—37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e.g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 237 (1948) (intrastate price-fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524—525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress’s authority in this regard: “[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Lopez, supra, at 560; Morrison, supra, at 610 (same).

(…)

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.

Applying that reasoning to the individual mandate would give a Justice a very easy way to find something that is seemingly not authorized by the Constitution to be completely acceptable:

Legislators argued that the “individual mandate” was necessary because it would undercut the insurance market if individuals could just opt out of having health insurance. Freeloaders could wait until they were hurt in an accident or contracted a disease and then demand insurance coverage for their “preexisting condition.”

The court’s ruling in the 2005 case, Gonzales vs. Raich, “is an enormous problem” for those who contend that the healthcare mandate is unconstitutional, said Simon Lazarus, a lawyer for the Washington, D.C.-based National Senior Citizens Law Center.

“It clearly says Congress has vast regulatory authority over interstate commerce,” he said.

Some what wondered whether Scalia will be able to square a ruling against the mandate with his concurrence in Raich, but even if he can the reasoning stands as as powerful argument for a Justice like Anthony Kennedy to hang their argument on if they wished to uphold the mandate.And we’d have the most conservative “originalist” on the Court to thank for it.

Stay tuned because this is just starting to get interesting.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Dodd says:

    Notice the word that keeps popping up in Scalia’s opinion? The one that distinguishes the individual mandate from that case? The word that was the crux of Judge Vinson’s ruling?

    “Activity.” I counted six instances of it in just the few paragraphs you quoted. So, no, that bit of overreach in a concurring opinion will not save the mandate.

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  2. Alex Knapp says:

    “If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.” – Alexander Hamilton, 1791

    I’ve said this in other areas and I’ll say it here. If the mandate even MAKES IT to SCOTUS, a dubious proposition because I don’t think even the Eighth Circuit will strike down the mandate once we get to the appellate level, I predict a 8-1 ruling in favor of the mandate. Only Thomas dissenting.

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  3. @Alex,

    I tend to think you’re right, unless there are five votes on the court to strike down more than 70 years worth of Commerce Clause precedent (while at the same time ignoring the General Welfare Clause argument). Notwithstanding these two District Court victories, the betting money is still with the government I think.

    One quibble, which may have just been a typo on your part. The appeals right now are pending before the 6th and 4th Circuits. Judge Vinson’s ruling will go to the 11th Circuit

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  4. Alex Knapp says:

    Doug,

    Sorry, I was thinking of the 6th, not the 8th. Thanks.

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  5. john personna says:

    I don’t know why I find this so incredibly boring at this point. It could be because in the scale of things this attempt at a health-care “tweak” is small. We’ll have a bad health care system with or without individual mandate.

    And, I guess I’m just saddened that this is where we are in America. Keep something bad, or roll back to something bad. There is little pressure for a real solution. There isn’t even much attention on it.

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  6. legion says:

    What, you think Scalia will let something like his own words limit him? Bosh. Scalia has shown on numerous occasions that he rules however he feels like pre-judging it, simple things like precedent, the Constitution, his own stated opinions, reality or simple human decency be damned.

    Also, after this, any right-wing constructionist douchenozzle who rails on about “judicial activism” (and how its only bad when leftys do it) needs to have his nose rubbed in this decision like the poo that it is.

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  7. Jay Tea says:

    Since when “a refusal to engage in an activity” in and of itself a form of that activity?

    By that logic, I know some nuns who ought to be charged with prostitution…

    J.

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  8. sam says:

    @Dodd

    “Activity.” I counted six instances of it in just the few paragraphs you quoted. So, no, that bit of overreach in a concurring opinion will not save the mandate.

    I don’t think that dog will hunt.

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  9. george says:

    >I don’t know why I find this so incredibly boring at this point. It could be because in the scale of things this attempt at a health-care “tweak” is small. We’ll have a bad health care system with or without individual mandate.

    I agree – the phrase that comes to mind is “much ado about nothing.”

    Obama managed to come up with a system which takes a public health system such as found in Canada and a private health system such as America had, and combined it into a system which is the worst of both worlds without providing the benefits of either.

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  10. sam says:

    @ Jay

    Since when “a refusal to engage in an activity” in and of itself a form of that activity?

    Try this one, Jay

    If a person comes into innocent possession of child pornography — for example, if you receive an unsolicited book in the mail, or an e-mail with an attachment, that contains child pornography — the law requires you to act to avoid criminal liability. Specifically, the person must:

    promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
    (A) [take] reasonable steps to destroy each such visual depiction; or
    (B) report[] the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

    18 U.S.C. 2252(c). If a person does not do this, then he or she is guilty of a federal felony crime that has quite severe sentences.

    This was passed under color of the Commerce Clause. Should it be struck down as unconstitutional?

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  11. This distinction between activity and “inactivity” doesn’t really hold up if you look at the case law, starting with Wickard v. Filburn and continuing through Heart of Atlanta Motel v. United States and Katzenbach v. McClung even before you get to a case like Raich.

    It may be incorrect, but there’s plenty of legal support for the idea that the commerce power includes regulating the refusal to act in interstate commerce.

    This is why I’ve said that striking down the mandate would, logically, require striking down 70 years of Commerce Clause precedent. Personally, I would be in favor of this outcome. Realistically, I don’t see how there are five votes on the Court for that outcome.

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  12. Zelsdorf,

    Your last comment directed at Legion was deleted for violation of OTB’s comment policy. Conisder this a warning

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  13. jpe says:

    @ Doug: I appreciate the attempts to destabilize the activity/non-activity distinction, but all of the cases you cite are regulation of activity. Wickard was about the act of growing wheat, Heart of Atlanta is about people already engaged in the act of renting rooms, etc. I don’t see how the distinction is called into question by those cases.

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  14. sam says:

    BTW, note the opening of Justice Thomas’s dissent in Raich:

    Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything[my emphasis]–and the Federal Government is no longer one of limited and enumerated powers.

    And,of course, the Court found that Congress can regulate this…

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  15. Alex Knapp says:

    @Doug,

    Frankly, I wouldn’t be surprised if SCOTUS issued two concurring opinions – a Sotomayor, Kagan, Breyer, Ginsburg opinion upholding this as a valid exercise of the commerce clause, and a Scalia, Alito, Kennedy, Roberts decision that sidestepped the commerce clause entirely and simply interpreted the mandate as a valid exercise of Congress’ taxing authority.

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  16. Drew says:

    “Stay tuned because this is just starting to get interesting.”

    Indeed; fascinating. I’m not a lawyer, and certainly not a Constitutional scholar, so some of the points have gone over my head. But the issue is crucial. I don’t know if Dave S ever read it, but awhile back I sent him a thought piece on health care written by my partner and me in which one of the points made was that the insurance mandate was crucial because our society is simply not one that will coldly turn away the uninsured, no matter their personal lack of responsibility. And so it follows that to not eviscerate the economics of insurance, a mandate is necessary.

    I know this goes against current conservative thought, and the usual inane invective directed by some here against me of being a wild eyed right winger. But I’ll be damned if I have an answer to the freeloader problem other than mandate. The emotional, and potentially catastrophic financial impact of catastrophic disease makes this a somewhat unique issue.

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  17. Dodd says:

    While Scalia is, indeed, committed to stare decisis, the glaring activity/non-activity distinction here — the one that would tear down the wall erected by Lopez — is simply too obvious to overcome. Nothing in that 70 years of CC jurisprudence goes that far. To the contrary, Lopez and Morrison unarguably hold that the CC is not without limits precisely because the Constitution’s enumeration of powers would otherwise be null and void.

    Read Judge Vinson’s ruling. He goes to incredible lengths to make it clear that (far from being activist, sorry, lefties who apply that term to any opinion they don’t like), he is bound by those very SupCt precedents until the SupCt itself expands its CC jurisprudence into this new, unexplored realm.

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  18. sam says:

    Well, Dodd, what’s you take on the child porn statute upthread?

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  19. Alex Knapp says:

    @Dodd,

    I think that the taxing authority argument is stronger, legally, than the Commerce Clause argument.

    But the mandate is much more closely related to interstate commerce than the issues in Lopez and Morrison.

    As it happens, I think that Lopez, Morrison, and Raich were all rightly decided, even though I didn’t care for the policy outcomes of the Morrison and Raich decisions.

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  20. Jay Tea says:

    So, Doug, if a farmer owns a field, he can be ordered to plant it, and not leave it fallow? If someone owns a hotel, they can be ordered to keep it open and maintained and staffed, and not shut it down? A restaurant can be compelled to stay open, despite its owner’s wish to close it?

    More specifically, if the Catholic Church finds that it would be required to perform abortions, it could not shut it down and demolish it?

    J.

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  21. Alex Knapp says:

    @Jay,

    Yes, yes, and yes. And, I might add, the government has done all of these things in the past.

    As for the Church argument, that would run afoul of the First Amendment.

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  22. Jay Tea says:

    Er… make that a Catholic hospital.

    And that’s very relevant, because 1 in 8 hospitals in the US are Catholic, and the Church has vowed to do just that should they be ordered to perform abortions on demand.

    J.

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  23. Alex Knapp says:

    And Jay,

    I might add that I don’t consider any of your examples to be good policy. Nevertheless, they are valid exercises of Congress’ power under the law.

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  24. Jay Tea says:

    Alex, I would like to see some links to those examples you cited. I’ll admit I’m a legal naif (a strong layman on theory, very weak on application), but I just can’t wrap my head around the government having the authority to veto a farm, hotel, or restaurant simply closing up shop and saying “no, I don’t want to do that any more.”

    J.

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  25. jpe says:

    @ Dodd: criminal liability attaches w/ the knowing possession of the contraband. That’s the activity. The statute then goes on to provides an affirmative defense.

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  26. Drew says:

    Alex –

    I’m in Jay Teas’ camp. Really? The government can force economic activity that results in capital deterioration, or bankruptcy? Really? That’s hard to believe.

    Can the Commerce Clause be used to force slavery…………..in the interest of commerce?

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  27. Jay Tea says:

    Whoa, Drew. I did NOT see that one. But by god, it fits perfectly.

    I bow to you, sir.

    J.

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  28. Alex Knapp says:

    @Dodd and Jay,

    Probably the best recent examples were the wage and price controls that Nixon adopted in the 1970s.

    Can the Commerce Clause be used to force slavery…………..in the interest of commerce?

    No, because of the 13th Amendment. But prior to the 13th, the government could and did.

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  29. Alex Knapp says:

    Whoops, I meant Drew, not Dodd.

    Now, if the government DID do something like that, the business owner would probably have a good takings argument.

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  30. sam says:

    @jpe

    “criminal liability attaches w/ the knowing possession of the contraband. That’s the activity. The statute then goes on to provides an affirmative defense.”

    Ah, see, here’s where the distinction becomes very hard to sustain, for I maintain the penalty attaches to the nonactivity of failing to report. Moreover, how do you establish the, for you, necessary parallel with Wickard (engaged in farming), or the cases I mentioned yesterday (mandatory purchase of crop insurance, farming; and mandatory purchase of flood insurance, home ownership)? Note that the statute says, “innocent possession” — I am in no way engaged in the “business” of child porn — I just got sent this stuff in the mail, or whatever. Unless you want to argue that innocent possession a fortiori means I’m in the business.

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  31. Drew says:

    Alex –

    I served up that softball hoping for a little more meat on the bones from you. Perhaps real work duties intervene. Fine, so the CC is trumped by other Constitutional provisions/Amendments. I repeat: the CC can be invoked to FORCE continued capital contributions to a losing enterprise. That is bizarre beyond belief.

    And if you can convince yourself that a person’s bank account can be drained under the CC, how is it such a stretch to muse about slavery, or any other similarly bizarre interpretation?

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  32. sam says:

    Moreover, if you want to say that innocent possession of child porn establishes a business nexus between the innocent possessor and the child porn business, why can’t I say that catching a cold establishes a business nexus between cold sufferer and the health care industry?

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  33. Alex Knapp says:

    @Drew –

    Yeah, a little busy at work.

    To put a little more meat on it – yes, the government could force you to continue capital contributions to a losing enterprise, but they would have to show that doing so was part of a larger scheme of regulation. It couldn’t just be something like “We want Drew’s company to keep pumping money.”

    To use the farming example, if the government wanted to say that all persons engaged in the business of farming had to farm x% of their fields to keep prices at a certain level, they probably could. If that ended up with losses to the farmer, they might have an argument that the government is taking their property and should be compensated for it. So it’s a little more complicated than I made it out to be above. There had to be a defined regulatory end for the activity, which is why, for example, minimum wage laws are constitutional.

    In terms of slavery, indentured servtitude and debtor’s prisons were legal for a good long while in the 19th century.

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  34. Drew says:

    Alex –

    Thanks.

    “To use the farming example, if the government wanted to say that all persons engaged in the business of farming had to farm x% of their fields to keep prices at a certain level, they probably could. If that ended up with losses to the farmer, they might have an argument that the government is taking their property and should be compensated for it.”

    I understand, monoploy must be avoided, but the argument seems bizarre. Do cell pnone or computer manufactureres need to produce at a rate to reult in the “right” price? Wow.

    “which is why, for example, minimum wage laws are constitutional.”

    That’s for another day. Those are “cruel and unusual punishment” (my words) bo-foing the unemployed for the benefit of the unions……….but I digress.

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  35. john personna says:

    I’m a little surprised that Drew wrote that paragraph on the necessity of a mandate in an insurance-based universal healthcare system. Thank you, Drew. It’s true, of course. But it also illustrates the problem with this path.

    If we’d done vouchers for basic health care, take it to your insurance company and bump it with your money if you want beyond basic, we’d not have gotten in this mess. We’d still have an insurance and healthcare market. We’d still have reason for people to shop for best return.

    And if someone still didn’t sign up, and left it for years until they got sick, just give whoever they sign up with then a “signer’s bonus,” out of the backlog of unspent vouchers.

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  36. john personna says:

    “which is why, for example, minimum wage laws are constitutional.”

    We set our minimum wage below the clearing wage and then have big arguments as if that matters.

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  37. I never realized that stare decisis meant that all bad rulings had to be preserved forever. Thank goodness previous courts did not think this way. Perhaps this court can reintroduce the legislative and administrative branches to the concept of limited government and enumerated powers, starting with this bill and working backward from Kelo to Wickard as quickly as possible.

    Hey, without my dreams what am I left with? Rooting for a slightly slower accretion of more and more power to the state? No thanks. Time to turn the tide.

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  38. Alex Knapp says:

    @Drew,

    I understand, monoploy must be avoided, but the argument seems bizarre. Do cell pnone or computer manufactureres need to produce at a rate to reult in the “right” price? Wow.

    No, but the government could do that if it wanted to. Nixon did price controls in the 70s. The government had rationing in WWI and WWII.

    Again, this isn’t about the wisdom of a particular policy — just the Constitutionality thereof.

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  39. john personna says:

    Again, this isn’t about the wisdom of a particular policy — just the Constitutionality thereof.

    Don’t forget the madness of even-odd gas days.

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  40. john personna says:

    Hey, without my dreams what am I left with? Rooting for a slightly slower accretion of more and more power to the state? No thanks. Time to turn the tide.

    Speaking of madness. Show Charles a poor person on a dialysis machine, and he’ll show you the wicked power of the state.

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  41. tom p says:

    “And if you can convince yourself that a person’s bank account can be drained under the CC, how is it such a stretch to muse about slavery, or any other similarly bizarre interpretation?”

    It probably does not happen under the CC, but a person can have everything but his mother siezed if he is suspected of illegal drug activity, and then has to prove he isn’t to get his stuff back.

    Not much of a stretch to your scenario for me, Drew.

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  42. sam says:

    Your exam question for today:

    Rep. Hal Wick, R-Sioux Falls, South Dakota, is sponsoring an “act to provide for an individual mandate to adult citizens to provide for the self defense of themselves and others” by purchasing a firearm. He says he knows the bill will be killed, but he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

    Explain what the representative is a moron.

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  43. sam says:

    why the representative is a moron…

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  44. john personna, I realize you’re a huge fan of Marx’s from each according to his abilities, to each according to his needs. I’m not.

    Oh, and go f*ck yourself for implying I like to see people suffer. I have a cousin who spent years on dialysis after his kidneys failed. Unlike you, I realize that trying to fill needs is a bottomless well. As Margaret Thatcher once said, the problem with socialism is you eventually run out of other people’s money.

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  45. I apologize for fouling an OTB thread with a word that is not necessary, even if partially obscured.

    However, I do not apologize for the sentiment. I am sick to death of being accused of being a bad person because I believe that more statism and creeping socialism will lead to worse results in the long term. Worse results, that will doom generations to a lower standard of living, even if they can get dialysis, until they can’t, of course.

    If that gets me banned, so be it.

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  46. IP727 says:

    The only valid position is for full repeal of this fustercluck.

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  47. Drew says:

    Charles –

    You did see I noted that my comment might surprise the consistently inane……….

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  48. Axel Edgren says:

    “I am sick to death of being accused of being a bad person because I believe that more statism and creeping socialism will lead to worse results in the long term.”

    The problem is not that you believe this. The problem is that calling ACA a socialization or… statistization (lol) of One-sixth of the US Economy (TM) is very ridiculous. In this case, the poor person on dialysis was not put there using extensive socialism or other people’s money.

    “If that gets me banned, so be it.”

    Now this I can respect.

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  49. Drew says:

    Charles –

    Oh, BTW, “independant,” not Marxixt. INDEPENDANT, you silly goose, you……..

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  50. Axel Edgren says:

    …Is English your second language?

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  51. john personna says:

    john personna, I realize you’re a huge fan of Marx’s from each according to his abilities, to each according to his needs. I’m not.

    Oh, and go f*ck yourself …

    I’m a nice solid moderate, who doesn’t go nuts with Marx, and who can call “let ‘em die” politics as I see ‘em.

    Either you are for universal coverage, or you are for some people not getting coverage. It really is that simple.

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  52. john personna says:

    BTW, Charles may be too much foaming at the mouth to get this, but here is a simple difference between me, the moderate, and the liberals (let alone the Marxists).

    Real socialists want everyone to get the same medical care, exactly, no matter how hard they work. When I said above “vouchers for basic health care, take it to your insurance company and bump it with your money if you want beyond basic” that was no where near liberal (let alone Marxist).

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  53. Drew says:

    “BTW, Charles may be too much foaming at the mouth…….”

    Run, Forrest ! Er, jp, RUN !!!!

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  54. john personna says:

    For what it’s worth “should everyone get the same medical care, regardless of income?” is a question to separate folks on the Political Compass.

    I’m not “conservative” as we now measure it, because I am for a pervasive safety net and a minimum care.

    I’m not “liberal” because I don’t think that means everyone gets capped teeth. I’m afraid “toothless” is not a life threatening disease.

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  55. Stan says:

    I don’t think charles austin is a bad person for feeling as he does, but I think the kind of libertarian society he favors is unworkable. Even Ayn Rand enrolled in Social Security and Medicare. If she hadn’t, she would have been bankrupted by the operations needed to treat her lung cancer. And Margaret Thatcher, the Tea Party’s Joan of Arc, defended the British National Health, and vowed to improve it during her election campaigns.

    Since charles brought it up, who paid for your cousin’s treatment?

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  56. Herb says:

    “I’m not “liberal” because I don’t think that means everyone gets capped teeth. I’m afraid “toothless” is not a life threatening disease.”

    You’re in good company. I know very few liberals who believe we all deserve capped teeth.

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  57. john personna says:

    @Stan, I think some conservatives like to rail against the government health care, with the background hope that if someone needs help, the government will provide it somehow.

    @Herb, I was looking for a good example. Maybe that wasn’t it. FWIW, I know someone who got her teeth capped through employer dental, because the dentist wrote it up as necessary.

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  58. sam says:

    @Dodd

    Read Judge Vinson’s ruling. He goes to incredible lengths to make it clear that (far from being activist, sorry, lefties who apply that term to any opinion they don’t like), he is bound by those very SupCt precedents until the SupCt itself expands its CC jurisprudence into this new, unexplored realm.

    That’s debatable. See, Orin Kerr, A Comment on District Court Originalism:

    [O]n page 60, Judge Vinson rejects one of the arguments of amici on the ground that the result of the amici’s argument “would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.” And critically, on Page 62–63, Judge Vinson writes that the mandate cannot be constitutional because “[i]f Congress is allowed to define the scope of its power merely by arguing that a provision is ‘necessary’ to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the ‘perfectly harmless’ part of the Constitution that Hamilton assured us it was [in Federalist No. 33], and moves that much closer to becoming the ‘hideous monster [with] devouring jaws’ that he assured us it was not.”

    If you are an originalist, as many VC [Volokh Conspiracy] readers seem to be, this is a very appealing argument. If you’re a libertarian, as many VC readers seem to be, this is also a very appealing argument. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

    Which, Orin argues, Judge Vinson did not do:

    If you’re going to take that view [that the judge has to follow SCOTUS precedent], I think you have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:

    [I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

    Judge Vinson never mentions this language in his opinion:

    Instead, he focuses on Alexander Hamilton and Federalist No. 33. Given the gap between the original meaning of the scope of federal power and the case precedents, I don’t think this approach is persuasive for a District Court judge to take.

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  59. An Interested Party says:

    Actually, the consistently inane are those who constantly characterize certain things that they don’t like as “Marxist” or “socialist”…if Charles Austin is in such a tizzy because he thinks that others are trying to mischaracterize him as a heartless brute, perhaps he might stop and think about that the next time he is tempted to call so much of anything to the left of him as some flavor of red…distorted generalizations hurt, don’t they? But then again, ymmv…

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  60. Stan says:

    I feel guilty about picking on charles austin. He’s honest, he writes well, and he’s sincere. But I still think he’s wrong about how much of a social safety net we need.

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  61. steve says:

    @Drew- You could do it w/o a mandate if you did it with limited enrollment periods and penalties for joining later in life. That would accomplish the same thing for the most part, but a mandate is cleaner. It is unclear if we would have the political will to not let people into the plan if they would be unable to pay the penalty.

    “. I am sick to death of being accused of being a bad person because I believe that more statism and creeping socialism will lead to worse results in the long term.”

    Yet folks on your side like to call people who want taxes at 39% instead of 35% socialists and statists. Haters of freedom, lovers of tyranny and not real Americans. Meh. At any rate, if you are opposed to the ACA, and have no real plan to replace it, you ma as well accept that some people will die who would not otherwise. Instead of quoting Thatcher, be constructive.

    Steve

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  62. Seriously torn about whether to engage further, but buried under an enormous pile of frozen precipitation of ice caked in inches of sleet insulated by a lot of snow, I’ve got some time on my hands. So, where to begin…

    I find it funny whenever someone accuses me of mischaracterizing their position, because that is just about all I get. Let’s start with the fact that we have a rather significant safety net today that gets frequently overlooked. Huge amounts of money are spent on indigent care today very inefficiently. How about some serious proposals to reallocate the funds spend in providing care through emergency rooms into some clinics providing basic support and a lot more preventative care instead?

    One place to start would be tort reform. In my home town, there was a successful doctor who retired and opened a free clinic to give back to the community. He closed within a year because of the threats of law suits and the requisite insurance he had to carry to remain open. For free care. Wrap your head around that one. But I digress.

    Let’s go to the comments: Show Charles a poor person on a dialysis machine, and he’ll show you the wicked power of the state.

    Well, if that doesn’t strongly imply that the state is supposed to provide something, anything, just because someone needs it, I don’t know what does. And where does the money come to fill all these needs? I’m sorry that you may be embarrassed that Karl Marx wrote “From each according to his ability, to each according to his need.” It just happens to be true. If the shoe fits, why are you ashamed to wear it?

    Axel Edgren: what I said was, “I believe that more statism and creeping socialism will lead to worse results in the long term.” If you don’t think Obamacare is either of those, I guess we’ll just have to agree to disagree. The practical results of Obamacare are to eliminate private insurers – and I say this as someone who has been dealing with this issue for a year now as the owner of a small company. I do not like the idea of universal coverage for a lot of reasons that don’t need to be rehashed here. I understand some people think that kind of equality needs to be forced on us. I don’t.

    john persona: again, bite me. What you call “let ‘em die” I call realizing that you cannot be a little God and fix everything on Earth with other people’s money. We can certainly do some things to try and ameliorate some of the worst problems, but what you want is beyond the scope of mankind’s abilities, and no amount of name calling is going to change that.
    I checked and there’s no drool running down my chin and my monitor seems remarkably free of spittle, but I am pissed off. No doubt about that. Tired of being told my business can just keep absorbing new costs and mandates by people that have never met a payroll in their life. Tired of the credit crunch caused by the near fascistic combination of government and big business that takes care of their own so well at the expense of the rest of us. Tired of a health care solution for 10% of the population requiring a reduction in care for the other 90%. Tired of a government and a commentariat that really does seem to think that constitutional is a synonym for whatever they can legislate and the concommittal loss of the idea of limited government with enumerated powers. But again, I digress.

    Stan: The type of system I prefer is what served this country rather well right up until sometime in either the 1960’s or 1970’s when the social scientists ran amok. Government spending has exploded, but are we any better off for it? And what’s worse is that in their desire to do good, they’ve gone fiscally insane and decided that we can fun today’s operations with tomorrow’s earnings over and over and over, as though we lived in an alternate Bearded Spock universe where Ponzi schemes work. At the end of the day, all these discussions are meaningless unless we begin living within our means. I believe it was Calvin Coolidge who said the business of America is business. We seem to have forgotten that and are paying a dear price for it. Oh, and how about we apply Sarbanes-Oxley to the US Government and see how fast their asses end up in jail?

    I’ve mentioned before that I’ve lived in England. You have to be very careful with analogies between the US and the UK. The NHS is deeply ingrained there (as is an extremely rigid class system, an aristocracy, Fabianism in general, and lots of subtle differences I haven’t the time or space to go into here) and no politician is going to get very far opposing it. Think of Northeast US Republican Senators and I think you can see where I’m going. It is very much worth noting the rationing that the NHS has been increasingly doing though if you think it is such a wonderful thing.

    I am not a doctrinaire libertarian. I am a libertarian minded conservative and as such have less faith in social engineering than you may have. I strongly support a safety net and believe we have very strong and arguably generous, or at least well funded, ones today. I know that isn’t a view commonly shared but it is true by historical standards. I think the expansion of the federal government into many roles better served by families and communities has had very negative consequences and the only way to fix them is to get dismantle entities such as the Department of Education and return control, including funding, to a more local level. But, yet again, I digress.

    As to who paid for my cousin’s dialysis, I don’t know, though I have a pretty good idea. But why should that matter? Making policy by anecdote is such a terrible way to try and do business. But thanks for the kind words. I don’t feel picked on at all. I’m just responding in kind, or as The Won suggested, punching back twice as hard.

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  63. steve: I don’t think of myself on a side, but whatever. I don’t like higher taxes, but let’s be honest, a 2,000 page bill requiring many more tomes of regulations and 54 new standing committees to oversee it has nothing to do with whether marginal tax rates are 35% or 39%. Unlike you, I feel no obligation to have some master plan to replace Obamacare. As I have tried to explain, I firmly believe the implementation of Obamacare will in the long run lead to much worse results than if we go with what we have now. Maybe I’m wrong, but that’s an entirely different thing than saying I’m willing to just let people die because I don’t like these damned statist approaches or that I need to come up with a way to tweak the knobs of state in a better way or just shut up about it.

    I appreciate the need to be constructive and will try and do so, though my more liberatrian ideas towards what constitutes more constructive aren’t alway popular around here. There are lots of things wrong with how things are done today and they have been well enunciated by Steve Verdon and others here. The biggest problme in disucssing this is the conflation of health insurance and health care, because they are not the same thing and my biggest complaint about Obamacare is it claims to address the first but in reality spends most of its time talking about the second. We have the best healthcare in the world today. We do not have the best ways of obtaining or paying for it. I’ll defer to better informed minds on how to fix the latter but continue to resist government intrusion on the former.

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  64. john personna says:

    You are only mad at me, I think, because I call you on your position.

    “What you call “let ‘em die” I call realizing that you cannot be a little God and fix everything on Earth with other people’s money. We can certainly do some things to try and ameliorate some of the worst problems, but what you want is beyond the scope of mankind’s abilities, and no amount of name calling is going to change that.”

    Seriously?

    No, obviously not seriously. The western market economies all have universal medicine, and might even provide a “basic care” beyond what I’d ask for.

    This “beyond the scope of mankind’s abilities” can’t be serious.

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  65. john personna says:

    BTW Charles, when I say

    “basic health care”

    and even distinguish that from

    “bump it with your money if you want beyond basic”

    … and then you say

    “and fix everything on Earth with other people’s money”

    That’s not rational. That you do it while cussing … doubly irrational.

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  66. Nightrider says:

    Couldn’t the federal government have practically accomplished the same thing by imposing a big tax penalty against people who don’t have insurance?

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  67. Dodd says:

    Well, Dodd, what’s you take on the child porn statute upthread?

    It’s irrelevant. However, since you’re so insistent, I’ll address it (assuming, for sake of this argument, that the statute in question — which to the best of my knowledge has not been challenged on constitutional grounds — is valid under Raich).

    While Prof. Kerr certainly came up with an interesting hypothetical to spur useful thoughts on the topic, the statute itself should not be where one’s thinking on the subject ends. Prof. Kerr understood this.

    The statute in question is a ‘safe harbour’ in a criminal statute which, to the extent it can be described as imposing a “mandate,” does so in a precisely targeted fashion that applies only to individuals who find themselves in a very specific circumstance so as to avoid criminal liability under the overall statutory scheme. Conceptually, that could not be farther from the individual mandate, which imposes itself on every living, breathing American merely by virtue of the fact that they are living, breathing Americans. To compare the two is akin to saying that the ACA as a whole is unconstitutional because it includes a provision guaranteeing nursing mothers reasonable break time to express milk.

    Further, the statute doesn’t actually reach inactivity. Someone who comes into possession of something has necessarily done something, even if all they did was open an old book in their attic. You cannot become aware of being in possession of contraband without taking some sort of actual action. Legally, you are a victim of battery if someone touches you on the arm when you don’t want them to. That slightest touching is the bright line that separates an act that is a tort from one that is not. The law must perforce create such hard and fast distinctions to have any coherence. (Such law school hypothetical circumstances break down when confronted with the practical realities of bringing an action for such trivialities, but then, that’s something else Prof. Kerr understood when he brought this up.) So, while it certainly does raise questions about the scope of federal power over activity, the statute is still conceptually distinct from declining to participate in a particular form of transaction.

    The implicit limit on the scope of the so-called mandate in the statute is also part of what makes it distinct from the individual mandate. Had you read Judge Vinson’s ruling, you’d know this. He spent a lot of time on the issue of scope and the fact that the individual mandate creates a situation wherein there are no remaining limits of federal power (just as I said six weeks ago)(see Opinion, p. 53). The calculus here, under the SupCt precedents Judge Vinson is obligated to follow, includes this very element (see, eg., Opinion, p. 57). Wickard, execrable though it is, supports this distinction also, since it necessarily allows for federal regulation of even trivial individual actions which, in the aggregate, affect interstate commerce (it’s a sad day for our Republic, though, that Wickard must now be seen as imposing limits on federal power, as this case makes clear it does). See also, Lopez at 558.

    Frankly, I wouldn’t be surprised if SCOTUS issued two concurring opinions – a Sotomayor, Kagan, Breyer, Ginsburg opinion upholding this as a valid exercise of the commerce clause, and a Scalia, Alito, Kennedy, Roberts decision that sidestepped the commerce clause entirely and simply interpreted the mandate as a valid exercise of Congress’ taxing authority.

    Doubtful. That argument is so patently post hoc that, as Judge Vinson noted, “[t]o date, every court to consider this issue (even those that have ruled in favor of the federal government) have also rejected the tax and/or Anti-Injunction arguments.”

    Scalia will almost assuredly agree with Judge Vinson. This will be a 5-4 decision, with Kennedy joining to strike down the individual mandate for precisely the same reasons he joined in the judgment in Lopez: The Court has a duty to “recognize meaningful limits on the commerce power” but if this stands, “it is difficult to perceive any limitation on federal power.” (Kennedy, J., concurring)

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  68. [...] following has its immediate inspiration in the comment thread from one of Doug Mataconis’ posts earlier [...]

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  69. Drew says:

    Charles –

    No matter how large, pervasive, expensive or counterproductive the safety net……….if you question it you are a heartless bastard. (aka right wing nut)

    At the same time, if you you ignore the deleterious effects and largely ineffectual results of the welfare state, and propose an expansion, you are simply a reasonable chap with only the best intentions in mind. You get fitted with a golden halo, actually.

    Get with the program, you selfish asshole.

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  70. Conisder this a warning

    This is like, what, the tenth time you’ve given ZR3 a warning? I don’t think he cares.

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  71. steve says:

    @Charles- I can appreciate that you dont think the ACA will cut costs or that it might fail in any number of ways. We can disagree on that, but the one thing it unequivocally does is provide access to a lot more people. If you cannot pay for health care, you cannot receive adequate health care. Opposing the ACA w/o an alternate plan is a vote for the prior status quo. That means increasing costs, decreasing access and increasing debt. That does not make people who oppose the ACA w/o replacement plans monsters, but it does make the approach hard to understand and at the least, irresponsible I believe.

    Steve

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  72. Clint Fichter says:

    I do not believe that the Lopez and Morrisson cases are comparable to the health insurance law analysis. While it is true that the Supreme Court drew the outer bounds of the Commerce Clause in both, both cases also dealt with the attempt to regulate non-economic behavior using a justification that rested on the “cost” of poor social welfare policy. On the other hand- Raich dealt with a comprehensive scheme to entirely regulate a national market. Scalia’s concurrent opinion was supportive of this aspect and such analysis translates directly to the facts of the health insurance law.

    If Congressional power to regulate interstate markets is plenary – it should include the ability to totally regulate behavior associated with that market including whether or not to purchase health insurance. The decision to not purchase health insurance is a decision made which has, when considered in the aggregate, has a substantial effect on interestate commerce and Congress has developed a comprehensive regulatory scheme to deal with the issue.

    I think that is passes 6-3, maybe 7-2. Either that or it fails and we wake up in 1937 one morning and the Congress is powerless to deal with national economic issues.

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  73. anjin-san says:

    > largely ineffectual results of the welfare state

    Define “ineffectual”. When was the last time you saw someone starve to death or die on the street ? (which is not to say the homeless, half of whom are mentally ill, don’t die under the overpass or in those nasty vacant lots we tend to avoid).

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  74. anjin-san says:

    > but it does make the approach hard to understand and at the least, irresponsible I believe.

    Are you saying putting mothers in a position where taking a child with a mild case of the flu to the ER is the only option she has does not make sense? You must be a “statist”…

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  75. john personna says:

    Drew leads his squad of straw men into the argument.

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  76. john personna says:

    Seriously, Drew, Charles, and whoever else, if you want to prove you aren’t saying “let ‘em die,” it’s pretty simple. Just say:

    “I support the idea that government should support a minimum health care standard for all Americans.”

    The game you are playing is a slippery slope thing. You want us to believe that minimum care is a wedge, which leads to righting all that’s wrong in the world … rather than what it is, just minimum care.

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  77. Stan says:

    charles austin, I think you’re underestimating the beneficial economic effects of our social safety net. If a workman lost his job during one of the financial panics of the nineteenth and early twentieth centuries, he and his family ended all but the most necessary spending, and soon wound up in the poor house or as beggars if one of the adults or working age children couldn’t find a job. This in turn decreased consumer spending and thereby deepened the economic downturn. It’s my understanding that financial panics during this period were very severe. The reason, I think, is that the economic system in this period was unstable, like a boulder on top of a hill or an AC circuit with negative resistance. Perturb it a little, and all hell breaks loose. In the modern period, the safety net cushions this effect. Unemployment insurance, food stamps, Medicaid, and other government programs keep a family going. They continue consuming while they’re seeking new income, and this participation helps to stabilize the economy. That’s my economic rationale for supporting a social safety net, and I hope I’ve convinced you of the error of your ways.

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  78. Where did I say we should cut the safety net? Our poor have homes, multiple televisions, cell phones, and cars. Back in the 70’s CBS made a documentary of the poorest of the poor in the our deep south. For propoganda reasons it was shown in the Soviet Union to illustrate how bad things are in the US, but it didn’t have the desired result. Despite people living in homes made of cardboard, some of those that watched said, “I want to live where the poor people are fat.”

    Ultimately, my biggest concern is that all your ideas for continuing to raise the bottom can only be done by lopping the top end of the bell curve off as well, and I think that is a very bad thing for reasons we will probably never agree on. Life is a struggle and you can’t change that. NO matter how much you spend there are always going to be people that fail miserably, leading to more calls to spend more and more.

    Finally, as I have noted before, a basic rule of economics is if you want more of something, subsidize it. Seems to hold in everything I’ve experienced.

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  79. Stan says:

    charles austin, I’ve excerpted the key sentence of your most recent post: “…your ideas for continuing to raise the bottom can only be done by lopping the top end of the bell curve off as well…” Do you really think so? In 1965 CEO’s in major companies earned 24 times more than the average worker. Now they earn 262 times as much. (http://tinyurl.com/apoxpu). By every measure income inequality has increased enormously since the 70’s, despite what you regard as rampant socialism. I’m not arguing with you about ethics or economics, but rather your grasp of facts.

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  80. Stan, I’m referring more to freedom, liberty and innovation. Not really interested in arguments about comparable worth at all.

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  81. One more thing, is it right for Albert Pujols to command a salary that may be 100 times larger than one of his teammates? Why or why not?

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  82. Dodd says:

    United States v. Comstock:

    [I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

    Judge Vinson never mentions this language in his opinion…

    That’s not quite right. While he doesn’t quote that precise passage from Comstock, that decision is heavily relied upon in his analysis. And the same point — that the NN&PC exists to allow Congress to implement constitutionally enumerated powers — is repeatedly made. See, eg., Opinion, p. 61, citing Chief Justice Marshall’s substantially similar reasoning in McCulloch.

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  83. Oh, and one final thought (I hope), I’ve never understood the fascination with what a few hundred CEOs make. In absolute terms, who cares? That’s a drop in the bucket compared to the waste inherent in the Stimulus package. Unless, of course, you think fairness has to be mandated from above rather than by a free market.

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  84. An Interested Party says:

    “Not really interested in arguments about comparable worth at all.”

    No, of course you wouldn’t be…

    “One more thing, is it right for Albert Pujols to command a salary that may be 100 times larger than one of his teammates?”

    Yes it is right…just as it is right that his income should be taxed at a higher rate than the incomes of others who make significantly less than he does…

    “Unless, of course, you think fairness has to be mandated from above rather than by a free market.”

    Hmm…time to get rid of all corporate welfare, agricultural subsidies, and even the mortgage tax deduction, among many other things, if we really want to improve the “free market”…

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  85. Dodd says:

    Hmm…time to get rid of all corporate welfare, agricultural subsidies, and even the mortgage tax deduction, among many other things, if we really want to improve the “free market”…

    If you think you’re proposing something that will shock people or spark knee-jerk argument, you’ve probably come to the wrong place. The first two we can eliminate tomorrow. The mortgage interest deduction only exists because technocrats decided to encourage home ownership as means of increasing social stability (of course, if they’re right, then it isn’t really relevant to a discussion of fairness but, rather, cost-benefit analysis, since promoting social stability is pretty much the government’s job). But we can certainly get rid of it. It would necessarily need to be phased out over time (even if we weren’t in the middle of a massive housing market decline) simply because it’s priced into the value of every home in the country. But it can go, too, provided taxes are cut comparably.

    BTW, “fair” is a place you take children to ride the merry-go-round.

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  86. anjin-san says:

    > I’ve never understood the fascination with what a few hundred CEOs make.

    Yea, who cares if the CEO of a corporation is more focused on his own compensation then creating long term shareholder value and delivering value and service to customers?

    Good point.

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  87. john personna says:

    Well, what safety net do we really have on medical care?

    Doesn’t “emergency rooms have to treat you” also mean they can bill you and bankrupt you? (If they actually treat you before dumping you.)

    Is that a safety net or a systemic path to ruin?

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  88. An Interested Party says:

    “If you think you’re proposing something that will shock people or spark knee-jerk argument, you’ve probably come to the wrong place. The first two we can eliminate tomorrow.”

    Umm, no, dear, that wasn’t my intention…the point is, if so many conservatives want to truly have a “free market” then they should do something to get their own house in order, as many of their fellow travelers, especially those with political power, are doing anything but ensuring a “free market”…

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  89. An Interested Party or should I say An Uniteresting Obfuscating Ass? — try and respond to any actual point I made or go back to playing in your sandbox.

    anjin-san — ditto.

    john personna — how dare those wicked emergency rooms try and actually recover their costs. Don’t they know their vendors are more interested in compassion than the rule of law?

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  90. anjin-san says:

    > anjin-san — ditto.

    Why are you the agenda dictator here? If you can’t some up with an intelligent response, just admit it and move on. It would hardly be the first time. I made a point about why what a few hundred CEO’s make is important. You opened that door, please don’t cry because I walked through it.

    Former WaMu CEO Kerry Killinger walked away from the disaster he helped create in the housing market with over 100 million. He encouraged predatory lending because it is more profitable. Thousands lost their homes. Shareholders lost their asses. The entire global economy was badly damaged.

    Yea, why should we give a rat’s ass about CEO compensation?

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  91. mantis says:

    how dare those wicked emergency rooms try and actually recover their costs. Don’t they know their vendors are more interested in compassion than the rule of law?

    It’s not the emergency rooms that are the problem, but the system that forces them to do this.

    Dumbass.

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  92. [...] the federal government can control all things that affect interstate commerce, even if they are completely local. So the question is, does Joe the plumber’s lack of health insurance, does the cost of health [...]

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  93. anjin-san says:

    > Dumbass.

    Good call.

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  94. john personna says:

    Which is it charles, recover costs or safety net?

    A “net” that puts the working poor (and even some middle class) through bankruptcy isn’t much of a net.

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  95. john personna says:

    BTW, I have low confidence that actually walking into an emergency room with nothing and saying “treat me” actually works. Remember an LA hospital was caught dumping poor people on skid row. Who hasn’t got caught … yet? Is “sue the poor” such a good solution that hospitals have the right incentives?

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