Posted on 10/20/2010 5:18:19 AM PDT by publiusF27
In 2005 the Supreme Court said the federal government's power to "regulate commerce…among the several states" extends to the tiniest speck of marijuana wherever it may be found, even in the home of a patient who grows it for her own medical use in compliance with state law. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas warned in his dissent, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."
The Obama administration, which was in court this week defending the new federal requirement that every American obtain government-designed health insurance, seems determined to prove Thomas right. But despite seven decades of stretching by a Supreme Court eager to accommodate every congressional whim, the Amazing Elastic Commerce Clause is still not expansive enough to cover the unprecedented command that people purchase a product from a private company in exchange for the privilege of existing.
"Never before has the Commerce Clause…been extended this far," noted U.S. District Judge Henry Hudson when he declined to dismiss the case he heard this week, in which Virginia is challenging the insurance mandate. Last week, allowing a similar lawsuit by Florida, U.S. District Judge Roger Vinson agreed that the Commerce Clause has "never been applied in such a manner before."
And how did it exercise that power with respect to Fillburn?
From George Washington's Farewell Address
" If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."
Sure, all you gotta do is get 2/3rds of both houses plus 3/4ths of the state legislatures to agree. No biggie. LoL.
That's a far cry from:
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
In other words, revolution is good for me but not for thee.
The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."
So the question becomes a) are our concerns about national power transient, or are they a consistent, ever-growing menace to society? b) Is it merely the agents of government at fault, and is the problem correctable through a change in representation, or is the problem structural. In other words, is the FORM of government destructive to our interests.
I argue that the form itself is fatally flawed. It is deformed, if you will. The agents of government do the actual work, but all the means are at their disposal. If such is the case, then we possess the right to alter or abolish it, amendment or not.
IMHO, the form itself is not flawed within the context of it's original intent. Perception of exactly what that form is has been deformed by the agents of government through sophistry and creative semantics.
Did you notice that the word commerce appears exactly once in the Brutus papers?
I guess I was asking for that.
Do you think the new health care law is a valid exercise of the commerce power? How do you think the Supreme Court will answer that question, if they get to that point?
But, Brutus' essays regarding the judicial power and implied powers correctly describe how our faulty constitution would be used to grant more and more power for themselves, as has been done with the Commerce Clause.
I think they might want to know how it’s different from Social Security insurance.
Isn’t SS based on the taxing power, though? That would be how it’s different to me. They created a program and enacted a tax to fund it. The topic article points out that the judges are not listening to that argument, because that is not the power Congress says they are relying on in the bill.
Now, if we had privatized SS by saying everyone has to invest a certain amount in retirement accounts with private investment firms, your question would be a very valid one. Also, I would at least have some faith that I would indeed have money in an account when I reach retirement age, so that would be another difference. But that has not happened.
"The Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress' power to "spend money in aid of the general welfare,'" Helvering v. Davis, supra, at 301 U. S. 640" --Flemming v. Nestor, 363 U.S. 603
They created a program and enacted a tax to fund it.
The penalty used to enforce the healthcare mandate is in the form of a tax penalty imposed and collected under the Internal Revenue Code.
The topic article points out that the judges are not listening to that argument, because that is not the power Congress says they are relying on in the bill.
I didn't see it. A quote would be helpful.
Insurance provides policy holders with proprietary and accrued property rights. The Social Security Insurance program was sold to the public as insurance, but the Supreme Court refused to so restrict it, asserting that, "To engraft upon the Social Security system a concept of 'accrued property rights' would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands."
Obamacare may turn eventually into a bigger boondoggle than Social Security, but that doesn't make it unprecedented. Both systems impose individual mandates under an assertion of the general welfare clause. Both systems utilize the tax system in the administration and enforcement of the benefits programs.
The heated "individual mandate" language being tossed doubtless has some political advantages to its invocation, but I'm skeptical of the legal merits.
A rhetorical, political, unprovable and legally meaningless question.
He quoted Drexel v Bailey and also the Linder case
No, his memorandum cited Cuccinelli paraphasing Drexel v Bailey and Linder. He then cited Sebelius in reply directly quoting States v. Sanchez 340 U.S. 42 (1950) where it stated that it "is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed."
Would you mind providing me with the quote where that is specifically said? What I read in Sonzinsky was, "Every tax is in some measure regulatory."
The question is rhetorical, but not legally meaningless.
Sonzinsky said otherwise: "Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts."
I note that you did not address this point, nor the significance of it:
Okay, the district court judge, in a memorandum on a motion, said that "the penalty here is not a tax, and a regulatory penalty must be supported by an enumerated power other than the taxing power." The purported absence of a single word seems to be a very slim reed for him to use to arrive at that conclusion. Apparently the language says neither "regulatory penalty" nor "tax penalty", so he concludes that it must be a regulatory penalty. He then asserts that a "regulatory penalty" can't be imposed by a tax, apparently based on some penumbral emanation he intuited that congress can't simultaneously exercise multiple powers. (Just a quick reminder here: "Every tax is in some measure regulatory.")
Didn't I already just finish pointing out to you that the Supreme Court in Helvering and in Flemming refused to hold Congress subject to inflexible language requirements? Didn't I point out that Social Security was premised on the General Welfare, as well as on taxing powers? If Social Security can stand on the General Welfare, how then is that different from the healthcare bill? Far from failing to address your arguments, I anticipated them and tried to keep them on point with the Social Security vs healthcare question that I previously raised.
Did you not see that? Or did you not want to?
Was the declared object of Social Security or the Healthcare law to provide revenue?
Congress cannot, under the pretext of executing delegated power, pass laws for the accomplishment of objects not intrusted to the federal government.
Social Security, general welfare, Helvering, Flemming. The 800 pound gorilla in the room seems to be invisible to you.
"He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms..."
"He" lost the case.
Meaning they are giving the "penalty" a pass because it's a tax, not a penalty.
That's not what they said. Here's what they said:
First. It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. Sonzinsky v. United States, 300 U.S. 506, 513 -514 (1937). The principle applies even though the revenue obtained is obviously negligible, Sonzinsky v. United States, supra, or the revenue purpose of the tax may be secondary, Hampton & Co. v. United States, 276 U.S. 394 (1928). Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934): [340 U.S. 42, 45]
Social Security, individual mandate, general welfare and tax, flexible language interpretation. Is none of that going to be addressed? Did I just waste my time responding to you?
1. Red herring. 2. Wrong anyway.
Medicaid, a joint federal-state insurance program, was established by the Social Security Act of 1965. Here in Florida, with the concurrence of HHS, Medicaid services components of Social Security have been selectively privatized and are administered through private managed care organizations. Legislation has been proposed in Florida this year to extend that Medicaid privatization to all qualified Social Security recipients living in the state.
What was said in dicta about the general welfare clause is not what was held in Helvering:
Absolutely wrong. It was decisional, NOT dicta. The court directly addressed questions expressly posed to the court by petitioners, the United States Commissioner of Internal Revenue and the United States Collector for the District of Massachusetts. Please don't beg the question.
Has the general welfare clause ever been used as a stand-alone grant of power, not in conjunction with enumerated powers?
Is that what the Health Care Bill does? Don't insinuate, quote.
Why do you think the courts in those cases were distinguishing the tax from a penalty?
Not for any reason relevant to the overlapping and Constitutionally indistinguishable (or at least so far not distinguished) Social Security and Health Care laws.
I don't see how the Supreme Court will find the latter is unconstitutional without it being clearly distinguished from the former. (Remember your original question?)
So far, I haven't seen any facts or cites meeting that burden even slightly.
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