Why The Supreme Court Is Likely To Uphold ObamaCare’s Individual Mandate

Despite yesterday's victory for opponents of the Affordable Care Act, the prospects in the Supreme Court are not good.

As Steven Taylor noted in his post yesterday, Judge Henry Hudson’s ruling striking down the individual insurance mandate portion of the Affordable Care Act is far from the final word. For one thing, it is only one lawsuit among the two dozen or so that have been filed against the law. So far, two other Federal District Court Judges, one in Michigan and the other elsewhere in Virginia have come down on the exact opposite side as Judge Hudson. Regardless of their outcome, each of these cases will be appealed to the appropriate Federal Circuit Court of Appeals and, then, to the Supreme Court. In fact, given that the cases are roughly on similar calendars, it’s possibly that the Supreme Court will choose to hear argument in all the cases at once.

In any event it is the Supreme Court that will decide this issue eventually, and that should give those celebrating yesterday’s decision no small degree of pause:

How might the justices rule? Both sides can point to precedents that bolster and hurt their chances on two key questions.

The first is whether Congress has the authority to impose the individual mandate through its constitutional power to regulate commerce. The law’s opponents argue that the Constitution’s commerce clause applies only to economic activity and that the failure to buy insurance is a form of inactivity. They also contend that there is no legal precedent for empowering Congress to force Americans to buy a product on a private market.

The administration counters that because virtually everyone will need health care at some point in his or her life, a person’s decision not to buy insurance is actually a decision about how to pay for that eventual care. In other words, you can pay for your care now (through health insurance premiums), or you can pay for it later when you get sick, either out of your own pocket or with help from, say, the government or a hospital that covers the cost of care for the uninsured. Either way, you are making an economic decision that has an aggregate impact on commerce that Congress has the power to regulate.

Previous Supreme Court decisions lend some support to the administration’s line of reasoning. In a 1942 case, the court ruled that the government could force an Idaho farmer who was growing wheat for his personal use to destroy it because it exceeded production quotas that had been instituted to keep wheat prices from falling too low.

In 2005, the court determined – in an opinion that included Kennedy and four traditionally liberal justices – that the commerce cause empowered Congress to prohibit a person from growing marijuana for medical use in compliance with California state law because it affected the market for illegal marijuana that the federal government was seeking to shut down.

But Georgetown University law Professor Randy E. Barnett, who represented the losing side in the case, said: “Nobody commanded them to grow marijuana. So this case does not answer the question of whether Congress can mandate economic activity. There are simply no cases that address this, and therefore you can’t answer that question by looking at what the justices have said in the past because they’ve never been asked.”

Instead, he said, it makes sense to look to the reluctance of conservative justices to expand the government’s powers under the commerce clause in other recent cases, such as a 1995 one in which Congress had sought to regulate handguns in schools and a 2000 decision involving the Violence Against Women Act.

Meanwhile, even in the medical marijuana case, the only consistently conservative judge who concurred with the ruling – Antonin Scalia – did not agree that the commerce clause applied. Rather, Scalia argued that the deciding factor was Congress’s constitutional authority to enact laws “necessary and proper” to the execution of its enumerated powers.

This is a second major argument on which the administration is mounting its defense: Even without its commerce clause authority, government lawyers argue, Congress has a right to impose the individual mandate under this necessary and proper clause.

The constitutional arguments against the individual mandate have been laid out fairly well by Randy Barnett several times, most notably here and here, and while the arguments are persuasive one level the fact of the matter is that what really matters here is what is most likely to persuade a majority of the Supreme Court. Doing that requires having the law on your side, or a persuasive argument distinguishing precedent from the case before the court.  Back in March, conservative attorney Stacy Cline noted at The American Spectator noted that the legal challenges to ObamaCare have the odds, and the case law, against them:

Despite this patent overreach by Congress, the Supreme Court’s flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress “to regulate Commerce … among the several States.” Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.

In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.

The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress’s Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution’s original intent.

The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.

Moreover, as law professor Jack Balkin noted when this debate first started, it’s possible to uphold the mandate without ever reaching the Commerce Clause issues:

The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.

(…)

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.

Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

Judge  Hudson was rather dismissive of the General Welfare Clause argument in his ruling, but the other two Federal Judges that have ruled on the mandate accepted it completely, and the Supreme Court has historically been very deferential when it comes to assertions of power under the taxing power. For example, in Seward Machine Company v. Davis, the Supreme Court upheld the Constitutionality of the entire Social Security system based on Congressional power under the General Welfare Clause. It’s entirely possible that the opponents of the individual mandate could win on their Commerce Clause argument, but lose the case because the Court decides that the mandate is a proper exercise of the power to tax.

In the end, though, it isn’t just a matter of what the “right” argument is, but a matter of what argument would be most successful in persuading five members of the Court to rule in your favor. In that regard, despite the fact that the Roberts Court is often described as the most conservative Supreme Court in generations, there may not be as much sympathy for arguments against Federal power as some might think:

Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

One example of the Roberts Court’s deference to Federal power grabs can be found in a case decided earlier this year where the Court held, over the dissent of only Justices  Thomas and Scalia, that the Federal Government has the authority to detain certain sex offenders indefinitely even after they have served the full term of their sentence. Thomas’s dissent raised the argument that every other “conservative” justice rejected:

“As every schoolchild learns, our Constitution estab-lishes a system of dual sovereignty between the States and the Federal Government.” Gregory v. Ashcroft, 501 U. S. 452, 457 (1991). In our system, the Federal Government’s powers are enumerated, and hence limited. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) (“Thisgovernment is acknowledged by all to be one of enumer-ated powers”). Thus, Congress has no power to act unless the Constitution authorizes it to do so. United States v. Morrison, 529 U. S. 598, 607 (2000) (“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution”). The States, in turn, are free to exercise all powers that the Constitution does notwithhold from them. Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited byit to the States, are reserved to the States respectively, or to the people”).1 This constitutional structure establishes different default rules for Congress and the States: Con-gress’ powers are “few and defined,” while those thatbelong to the States “remain . . . numerous and indefinite.” The Federalist No. 45, p. 328 (B. Wright ed. 1961) (J. Madison).

The Constitution plainly sets forth the “few and defined”powers that Congress may exercise. Article I “vest[s]” inCongress “[a]ll legislative Powers herein granted,” §1, and carefully enumerates those powers in §8. The final clause of §8, the Necessary and Proper Clause, authorizes Con-gress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in theGovernment of the United States, or in any Department or Officer thereof.” Art. I, §8, cl. 18. As the Clause’s place-ment at the end of §8 indicates, the “foregoing Powers” are those granted to Congress in the preceding clauses of thatsection. The “other Powers” to which the Clause refers are those “vested” in Congress and the other branches byother specific provisions of the Constitution.

(…)

No enumerated power in Article I, §8, expressly dele-gates to Congress the power to enact a civil-commitmentregime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.Accordingly, §4248 can be a valid exercise of congressionalauthority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actu-ally enumerated in the Constitution.

Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpretedmost expansively, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)—can justify federal civildetention of sex offenders. Under the Court’s precedents,Congress may not regulate noneconomic activity (such assexual violence) based solely on the effect such activitymay have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617-618; United States v. Lopez, 514 U. S. 549, 563-567 (1995).That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of OralArg. 21-22.

Substitute health care reform for civil commitment in the language above, and you’ve pretty much written the (two person ?) dissent in the case(s) that are likely to comprise the Supreme Court’s ruling on the constitutionality of the individual mandate.

Back in March, Volokh Conspirator Orin Kerr gave odds on how likely a SCOTUS ruling against ObamaCare actually might be:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction.

I agree with Kerr in all respects. So far we’ve had three courts rule on the mandate, one of them has struck it down. As we go along through the appeals process, it strikes me as less and less likely that we’ll find judges who agree with Judge Henry Hudson.

FILED UNDER: Law and the Courts, US Politics
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    I expect the Supremes will invalidate Obama-care under the Bush v. Gore precedent which holds that when push comes to shove the Republican justices will simply do whatever they want in order to ensure a favorable political outcome.

  2. anjin-san says:

    It’s interesting that “conservatives” are so anxious for activist judges to overturn the will of the people as expressed through their elected representatives…

  3. tom p says:

    Doug, good piece.

  4. Herb says:

    Balkin’s got it right, I think: “It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.”

    It’s a tax that recognizes that healthcare (and the insurance companies from which it flows) is an inevitable and unavoidable part of modern life in 21st Century industrialized countries.

  5. Herb says:

    PS. You forgot Randy Barnett’s links.

  6. floyd says:

    This all rests on whether the justices view the people of the United States as citizens or merely denizens without power over their circumstances, or worse… property of the state, subject the whim of their masters. Time will confirm what now only seems inevitable.

    Constitutional interpretation will likely continue to follow the present trend….. as the instrument of corruption, rather than the mirror in which we seek the image of principle.
    Of course this is a cynical point of view. The only argument remains… by which definition of the word.[lol]

  7. anjin-san says:

    > rather than the mirror in which we seek the image of principle.

    What principle are you so enamored of… that a health care insurer should be able to cut you loose when you get sick after you have been paying your premiums in good faith for years? That the CEO of Wellpoint should get 60 million a year for finding new and better ways to screw his customers?

  8. Steve Plunk says:

    I see a real difference between this case and the previous cases mentioned. In each of the earlier rulings the number of citizens impacted was relatively small. The individual mandate portion of the health care reform will intrude into the lives of all most all Americans and do so not as a minor inconvenience but what could be a substantial financial burden on many.

    The SCOTUS may look at this law on more than the technical levels of the commerce clause and the necessary and proper clause. This is a real game changer for the future of the United States and I expect some new thinking when this comes before the court. The issue of this law creating ‘unbridled federal power’ must be addressed. That’s the real question that moves this out of the technical arena.

    I guess we’ll see.

  9. floyd says:

    anjin-san;
    Your point (if it is one) should have been dealt with under the government’s obligation to properly regulate the insurance industry, and has no bearing on the subject at hand which is the question of individual mandates.

    To your point … It is precisely because of the government’s failure to perform it’s legitimate obligation to competently regulate the insurance industry that we find ourselves turning to the very same culprits for solutions. Why not simply demand that they perform as required, rather than overstep their authority?

  10. mantis says:

    What regulation are you referring to, floyd, that the government has failed to impose upon the insurance industry?

  11. anjin-san says:

    > It is precisely because of the government’s failure to perform it’s legitimate obligation to competently regulate the insurance industry

    Interesting. The constant drumbeat from the right is for government to GET OUT OF THE WAY. Are you renouncing that and calling for necessary regulation to prevent abuse in the private sector?

    Perhaps if your party was not owned lock, stock and barrel by special interests, we would have proper regulation.

  12. floyd says:

    Mantis;

    Anjin-san articulated a couple of legitimate points, if you want indivdual areas of concern.

    I did not however, make reference to any particular ordinance or statute, but rather to the need to maintain a legitimate regulatory framework in which insurance companies could operate ethicly, fairly and legally.
    I submit that our government has failed miserably to do so, and rather than make the effort, they are now choosing to overstep their authority in response to the disaster which they themselves have created through negligence and incompetence.

  13. mantis says:

    I submit that our government has failed miserably to do so, and rather than make the effort

    Actually, they have made the effort. HCR is a regulatory measure, necessary in part because previous regulation failed to be effective at ensuring people had access to affordable healthcare.

    What I want to know is what regulation you think the government should have imposed (or properly enforced) that would have made further healthcare reform unnecessary.

  14. floyd says:

    Anjin-san;
    I have no party affiliation. I would agree that the Republican Party has culpability in it’s call for an orgy of deregulation. I have called only for “COMPETENT” and measured regulation which is the proper purview of government.
    Bear in mind, that a properly restrained government is necessary.I have not said otherwise.
    Neither totalitarianism nor anarchy are desirable in spite of your apparent need to purse every argument in that framework.
    I dare to assume that you would have some restraints on government and as a result would consider it offensive for someone to accuse you of saying otherwise? You do believe in limited government don’t you? If not….well pardon my assumption.

    So yes, I find limited regulation to be a desirable alternative to viscious and overreaching tyranny. It’s not just a matter of degree but one of competence and respect for individual liberty,perhaps truly an archaic position at best.

  15. Dodd says:

    Another day, another example of lefties trying to apply the term “activist” to judges without any grasp of what that term means.

  16. anjin-san says:

    Damn Dodd, you are not even any good at being snide. Why don’t you thrown in “overmatched” “logical fallacy” and “ad hominem”? At that point, your vocabulary will be exhausted, and the discussion can move on…

  17. sam says:

    @Plunk

    “The individual mandate portion of the health care reform will intrude into the lives of all most all Americans and do so not as a minor inconvenience but what could be a substantial financial burden on many.”

    The argument is that by not purchasing heath insurance, the free riders are imposting costs (to the tune of about $40 billion per year) on the rest of us. Those who do not purchase health insurance already “intrude into the live of all most all Americans.”

    “The SCOTUS may look at this law on more than the technical levels of the commerce clause and the necessary and proper clause. ”

    In other words, Steve is hoping for an act of judicial activism that is not grounded in the text of the constitution.

  18. mantis says:

    Another day, another example of lefties trying to apply the term “activist” to judges without any grasp of what that term means.

    You guys set the example. Can you blame “lefties” calling any ruling they don’t like the work of activist judges? The “righties” have been doing it for years and years.

  19. anjin-san says:

    > The “righties” have been doing it for years and years.

    Dodd will whine no whine before it’s time…

  20. davod says:

    “I expect the Supremes will invalidate Obama-care under the Bush v. Gore precedent which holds that when push comes to shove the Republican justices will simply do whatever they want in order to ensure a favorable political outcome.” ???

    “In a 7-2 opinion, the court ordered that a ballot recount then being conducted in certain counties in Florida was to be stopped due to lacking a consistent standard. The court further declared, in a 5-4 vote, that there was insufficient time to establish standards for a new recount that would meet Florida’s deadline for certifying electors.”

    Where was the majority?

  21. EJ says:

    Dodd,

    I’m tired off that myself. I’m not sure if its just straw man argument tactics, or if they truelly just dont get it.

  22. Stan says:

    “The individual mandate portion of the health care reform will intrude into the lives of all most all Americans and do so not as a minor inconvenience but what could be a substantial financial burden on many.”

    Actually, no. I won’t be affected because I already have insurance. The same applies to my wife and to about 85% of the resident population. Furthermore, of the 15% who don’t have insurance, many of them (most?) will be affected only in that they’ll be eligible for Medicaid. Many more won’t be affected because they’re undocumented and won’t be covered by the law. So the quote is really, really inaccurate.

  23. davod says:

    Don’t forget that the Dems say even with all the changes 30 million will still be without health insurance.

  24. sam says:

    @EJ

    “I’m tired off that myself. I’m not sure if its just straw man argument tactics, or if they truelly just dont get it.”

    Tell you what, EJ. Why don’t you, as an act of compassion for the lesser intellects of the left, assume they do not understand what ‘judicial activism’ means and explain it to them. OK? Here’s your chance to help out. Explain it. It’s not too much to ask, you know, and you might hasten the scales falling from some eyes.

  25. Jay Tea says:

    Let’s just cut it down to plain English. Say I refuse to provide the government with proof that I carry “adequate” health insurance, saying that it is strictly a matter of privacy between me, my employer (perhaps), my insurer, and my doctor. Under what Constitutional doctrine am I compelled to engage in an act of commerce that meets the government’s standards and rules? Why should I not have the right to say “no, thank you, I do not wish to buy that product?”

    And what about religious exceptions? Christian Scientists, Muslims, Jews, and Scientologists (spit) all have religious restrictions on their health care. Should they be compelled to pay for coverage of treatments that they cannot accept?

    This reminds me of so many policies from the left — they all boil down to “I can’t be trusted to do the right thing, so please make me — and everyone else, so I don’t feel so bad about being so inept.” Seat belt laws, motorcycle helmet laws, increased taxes, and now this.

    I always wear a seat belt. I think anyone who doesn’t wear a seat belt (or a helmet on a motorcycle) is an idiot. And there’s no law forbidding anyone from overpaying taxes and sending in more money to Washington if they think they ought to pay more.

    J.

  26. sam says:

    “Under what Constitutional doctrine am I compelled to engage in an act of commerce that meets the government’s standards and rules? Why should I not have the right to say “no, thank you, I do not wish to buy that product?””

    We’re going to find out (one way or the other).

    “And what about religious exceptions? ”

    There is a “religious conscience” provision in the bill — see, Health Insurance Exemptions

  27. wr says:

    Um, Jay Tea? I’m Jewish, and in all my life, no one has ever given me any indication that there is any “religious restriction” on my health care. What exactly does my religion tell me I’m not allowed to have taken care of, and how is the government trampling on those religious rights by insisting I be able to pay for my care?

    Now I will grant you that Christian Scientists are restricted by their — certifiably insane — brand of “religion” not to get medical treatment, but I’m sure those problems can be taken care of without throwing out the entire health care bill.

    So what exactly are you afraid of here? I mean, unless you’re one of those right-wing manly men who are so terrified of female sexuality that you feel it’s a sin for them to be in charge of their own bodies, in which case there’s no point talking any further. I’d just as soon talk women’s rights with a fundamentalist Muslim…

  28. Jay Tea says:

    wr, what I had in mind was something that happened to a guy I know last week. He had a heart attack, and had one of his heart valves replaced with one from a pig. I doubt many Jews or Muslims would go along with that procedure.

    It’s a minor point, compared to paying for abortions or Christian Scientists, but I felt like being ecumenical.

    Sam, that you can’t articulate one and instead defer to judges to make up their own reasoning speaks volumes.

    J.

  29. Jay Tea says:

    Oh, and wr? I’m “squishily” pro-choice. But I respect those who don’t want their money to go to pay for abortions, and don’t want to pay for insurance that covers abortions when they are adamant in opposing it.

    What am I afraid of? How about the next step — the government starts telling us how to live more healthily, mandating healthy foods and practices. After all, they have a financial state in our health. And we’re already seeing little bits like that — Michelle Obama is talking about federal laws regulating food in schools, even what parents can send in for their kids to eat and sell at bake sales.

    That’s just one. I got plenty more. For example, sex can be very expensive to your health care. Pregnancy, STDs, and a host of other things. Shouldn’t the government that picks up that tab have a say in that, too?

    If you take the king’s gold, you play the king’s tune.

    Don’t people have a right to privacy, to live their lives as they wish, and to tell the government “that’s none of your goddamned business” any more?

    J.

  30. sam says:

    “Sam, that you can’t articulate one and instead defer to judges to make up their own reasoning speaks volumes.”

    How do you know they will “make up their own reasoning”? If the law is struck down, on the basis of the majority’s understanding of the “constitutional doctrines”, are you going to say they made up their own reasoning? Of course you won’t because the opinion will accord with what you desire. As for deferring to judges, whom would you have us defer to where questions of constitutionality are concerned?

  31. Jay Tea says:

    sam, the Constitution is NOT that complicated a document. It’s intended to be accessible and understandable for everyone. The myth that only Constitutional scholars and legal experts are the only ones qualified to offer opinions on it is destructive to the American way.

    Also, there aren’t any judges here. (At least, I don’t think there are.) I’m just asking you and anyone else to tie ObamaCare to a specific section of the Constitution, to justify the federal government taking such a drastic step. And to put it in simple enough English that a layman like myself can grasp it.

    Someone. Anyone. Bueller? Bueller?

    J.

  32. sam says:

    ” I’m just asking you and anyone else to tie ObamaCare to a specific section of the Constitution, to justify the federal government taking such a drastic step”

    See Federal Judge: Health Care Law Individual Mandate Unconstitutionalfor the extended discussion of Health Care Reform, the N&P Clause and the Commerce Clause.

  33. anjin-san says:

    > Why should I not have the right to say “no, thank you, I do not wish to buy that product?”

    Maybe you should. Just sign a waiver saying you refuse all health care with any public funding, for the rest of your life. Are you ready to roll those bones?

  34. michael reynolds says:

    I wish I could believe the Republican court will pay even cursory attention to the constitution. But think that’s naive.

    The GOP sees the health care plan as deadly to the GOP. The GOP court will do what it does when faced with a political threat: rule in favor of the GOP. This will be a party line vote.

    There are really only two questions:

    1) Will Kennedy decide to go rogue? (The rest of the GOP justices, Scalia, Alito, Thomas and Roberts are safe Republican votes.)

    2) Would a vote in favor of the health care plan in some unforseen way endanger a greater GOP priority: the welfare of the rich.

    Pretending that actual constitutional issues will get in the way of a party-line vote is somewhere between funny and kinda sad.

  35. Jay Tea says:

    Oh, anjin, you’re so cute how you try to turn everything into an attack on me. It’s flattering.

    But no, personally, I wouldn’t. But I’d certainly support the right of someone to do so.

    As I said above, I’m a seatbelt militant. I’ve buckled up to back out of a garage. But I support the rights of those who don’t want to.

    I think people have the right to make wrong decisions, to be idiots. I don’t think it’s the place of the government to protect ourselves from bad decisions. For one, I’m a Darwinian. For another, making bad decisions is one of the best ways people can learn how to make good decisions.

    I understand, anjin, that you’re too stupid and irresponsible to take care of yourself, and need the government to constantly remind you to buckle up and wash your hands before leaving the bathroom and eat healthy and exercise regularly and all that stuff, but there’s a whole bunch of us who fall into a category called “mature adults” and take responsibility for ourselves.

    J.

  36. Stan says:

    Jay Tea, my father-in-law and I were both faculty members at the same institution, a major research university. When my father-in-law joined the faculty back in the 40’s, enrollment in the retirement plan was optional. He declined because a) he and my mother-in-law wanted their money now and figured the future would take care of itself, and b), as my mother-in-law confessed, they were very stupid. When I joined the faculty in 1964, enrolling in the retirement plan was automatic after your first year at the university. As a result my in-laws almost but not quite used up their inheritances and savings before they died, and had to watch every penny, and my wife and I in retirement have more money than we can spend. My question is, are you appalled that the university is so paternalistic? And if you are, what do you think of “permissive paternalism”, i.e. the government or your employer automatically enrolls you in some plan, like buying into a retirement plan, while giving you the option of declining?

  37. anjin-san says:

    > Oh, anjin, you’re so cute how you try to turn everything into an attack on me. It’s flattering.

    Actually, you are only flattering yourself. You do that a lot. I am just wondering if you will put your ass on the line in the service of your stated ideals. And your answer is, you won’t. You pretty much sum up the tea party movement all by yourself.

    > I understand, anjin, that you’re too stupid and irresponsible to take care of yourself

    If moronic statements like that are the best you can do, its easy to understand why you are so enamored of the political fad called the tea party, which actually seems to discourage much thinking in its adherents. You fit right in dude – keep telling yourself how mature your are, and keep ignoring how you disprove it pretty much every time you speak.

  38. anjin-san says:

    Oh, and when you get done patting yourself on the back for knowing how to use a seat belt, you might want to do a little reading on the history these handy little gadgets. It was government pressure that led to seat belts becoming a standard item on automobiles. The auto industry was very resistant to implementation of seat belts, they did not simply say “great idea, let’s do it”.

    > I think people have the right to make wrong decisions, to be idiots

    So when the idiot next door does not use his seat belt, and he is paralyzed in an accident, and he does not have health insurance, are you ready to help with the 24/7 costs that will be associated with his injury for the rest of his life? If not, what do you propose… pushing his wheelchair out into a field and letting him die?

    You might also want to consider that if, God forbid you or someone in your family suffers a catastrophic accident or illness, you might well very quickly find your resources exhausted no matter how responsible you have been. Will you at that point reject all government assistance out of fidelity to your ideals?

    If you knew me, and knew the sacrafices that my wife and I have made to take care of relatives that have suffered catastriphic illnesses, you would probably retract your earlier statement pretty quickly. I have learned the hard way just how random and cruel these things can be. We have a fair amount more money than the average American does to provide care for our family, but without government assistance, both of the family members in question would almost certainly have died by now.

  39. michael reynolds says:

    Anjin:

    Talking to libertarians is exactly like talking to children. Only without the imagination.

  40. floyd says:

    “Talking to libertarians is exactly like talking to children. Only without the imagination”.
    “””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””
    Micheal;
    You mean “Only without the gullibility?”

  41. wr says:

    Right. Except that children can suprise you.

  42. anjin-san says:

    And children can be fun to be around, which is not the case with this crowd…