Obama shifts healthcare defense (Necessary and Proper Clause)

The Hill ^ | 3/15/12 | Sam Baker

[Libloather]

Obama shifts healthcare defense
By Sam Baker - 03/15/12 07:08 PM ET

The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.

Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts.

Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law’s mandate requiring individuals to purchase health insurance.

Oral arguments in the landmark case are set to begin March 26, and the justices are expected to give a ruling in June, just months before the presidential election.

A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law—which is exactly the point the Department of Justice is highlighting in its most recent briefs.

Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.

The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers

The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.

“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.

The brief argues requiring insurance companies to cover everyone and banning them from charging sick people higher prices are regulations that the Constitution clearly protects. The mandate, Justice argues, is a “necessary and proper” way to carry out those regulations without causing the cost of insurance to skyrocket.

Karen Harned, a lawyer with the National Federation of Independent Business which is a party to the suit challenging the healthcare law, agreed that the debate has shifted toward the necessary and proper clause. But she insisted it’s sill a losing case for the White House.

“They can’t force people to buy cars because of federal safety regulations that raise the price of cars,” Harned said. “They put a new regulation on somebody that causes the price of that prod to go up — they can’t go in and fix it by requiring everybody to buy that product.”

Tim Jost, a Washington and Lee University law professor and a prominent supporter of the healthcare law, said the mandate’s critics invited the new line of defense by urging the court to strike down the entire law. The states say the mandate cannot be “severed” from any of the law’s other provisions. That position basically concedes that the mandate is necessary to make other reforms work, Jost said.

“I think that is their strongest argument,” Jost said of the Necessary and Proper Clause.

Justice is by no means abandoning its argument that the mandate is Constitutional under the Commerce Clause.

Both critics and supporters of the law think the administration could be trying to appeal to Scalia with the shift, as the line between the Commerce Clause and the Necessary and Proper Clause was central to an important decision of Scalia’s.

The case, Gonzales v. Raich, is one of the closest precedents for the healthcare suit. It asked whether the federal government could prevent people from growing their own medical marijuana, in a state where it’s legal, rather than buying marijuana from a sanctioned dispensary.

The court ultimately ruled on Commerce Clause grounds, but Scalia wrote in a separate opinion that it didn’t matter whether the limits on individual growers were an acceptable regulation of commerce. The government could step in as a “necessary and proper” way of carrying out its broader power to criminalize drug use, he wrote.

The Justice Department has been heavily citing Raich since its first filing in any of the challenges to healthcare reform. But it did not draw as strong a parallel in lower courts, even those that upheld the mandate.

Simon Lazarus, a lawyer with the National Senior Citizens Law Center, said the Justice Department may well be targeting Scalia’s vote by describing the mandate in the same terms addressed in his Raich opinion.

“There is simply no way that you could take that even remotely literally and not uphold the mandate,” he said.

Still, Scalia’s staunch conservative record leaves many critics of the law confident he will not rule the healthcare mandate is constitutional, particularly given the politically-charged atmosphere surrounding the case.

[Libloather]

Hussein can do what he wants and you'll just have to eat it.

[traditional1]

"Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law’s mandate"

Is it just me, or was the coincidence of Scalia being at the State Dinner for Cameron this week and this change of argument on Obamacare being a set up?

[BamaAndy]

Voting for Freedom is Voting against Democrats

The Democrat party is chock full of ‘em. The people whose passion is to be as unlikable as they can be—go vote in synchronized choreography, lining up as lemmings to give away their freedom to power junkies who occupy positions in the Democrat party—the line is solid with those angry liberals—hateful, vile, bad company—the angry unemployed by choice, the angry call themselves lesbians in boy haircuts who make nearly every workplace they happen into a miserable thing for those around them, the anti-life smoozies and their friends who bring benefits to their collectivist tables upon which every top is full of other people’s stuff taken by the force of the law and guns—those who stand in line for food stamps and always want more—much more, numbskulls who believe paying union dues is a good investment, proud to be grotesque feminists, druggies, modern day hippies who are in it for the trip—politicians on the take who work hard to invent or steal as many votes as they can—no voter ID required here!—their ranks are replete with every imaginable kind of psychopath, pervert, murderer, rapist, thief, dumb-ass, violent, anarchist, communist, socialist, environmental slave, anti-religion, full of crap—full of themselves loudmouths, anti-property ownership for everyone except them, knuckle-dragging, brainless, and selfish idiots one can imagine.

To be a democrat is to be a villain—whether purposeful or not. To be a democrat is to be the worst kind of person most often produced by a public “education” that teaches nothing of substance, of truth—but produce losers out of more and more wide eyed children by telling them that having high self-esteem is more important than God, more important than country, and far more important than learning anything of substance—such as reading, writing, and arithmetic—let alone economics, history, or shhh (ethics, morality—or even good manners). To be a democrat is to be against freedom in a real sense, not illusionary—but very real—we watch these miscreants as they band together in their collectivists camps to write ever more tax bills, regulations and laws to artificially take control of everything—our lives, our very being, our money, our time, our faith, our freedoms. Erosion is no longer the word—they’re taking every bit of freedom away from us in chunks of Obama directly made or inspired orders from on high.

Oh—Hell—No!

I will not comply.

There is a vote and surely more people will vote freedom rather than for demon inspired democrat power. God help this country if we do. God have mercy on this country if we don’t.

[itsahoot]

We may soon find out what was really said at the second swearing in.

If the overturn this, then those bloated bustards will have to explain why they let them spend several hundred billion dollars implementing it. They won't.

[skr]

Criminalizing mind-altering drug use is a far cry from forcing people to pay for government health insurance.

[Hoosier-Daddy]

Doesn’t matter. I will not comply. I am not going to hell for paying for abortion.

[tobyhill]

First, if it's a “tax” for not purchasing something, what are they taxing?

Second, if it's not a “tax” but a fine instead for not purchasing something, then are ALL fines equal and is there due process of law before the fine is administered?

Third, can every person who receives this fine for “violating the law” challenge their specific fine in the courts and if so how far can it go to be upheld or dismissed?

Forth, if a fine is assessed does the court have the authority to reduce the fine as they do with every other statutory violation?

[Smokin' Joe]

No. Hussein has gone too far, by requiring Catholics to pay for abortifacients or coverage which covers them.

There is a First Amendment objection along with the Commerce Clause, and even more one of 'Equal Protection': Muslims are not required to carry coverage because of a religious objection, but Catholics are supposed to, in spite of one.

[liberalh8ter]

Nope, it's not just you because as soon as I read it I thought, “that explains why Scalia got invited to hang out with the “cool kids”. These people make me absolutely sick.

[traditional1]

"These people make me absolutely sick"

I see these things where Legislation gets shoved up our asses, or corruption is allowed to go un-punished/un-investigated (such as Eligibility), and it takes years to take it to the Courts, meanwhile BILLIONS are spent setting up beauracracies and it is NEVER un-done, and the people hired (to lower un-employment figures) are NEVER shit-canned from useless positons. Just like all the Czars that were created, and their bloated Staffs, the damage is permanent.

Regulatory bodies are created to make meaningless, un-economic, Economy-stifling Rules to appease the wacko-voters, or faggots/dykes, or Illegals, or "Holder's People", etc., and they are NEVER dis-mantled, no matter what.

To expect the USSC to rule against the already-in-place beauracracy and beaurocrats is pissing into the wind, IMHO.

[Prospero]

Acts 4:19

[StonyBurk]

Oh when I was helping treat soldiers addicted to alcohol and drugs-and seeing first hand the affects of the rehab programs we were taught the we are the masters of our own fate. We have no control over what any other might do- Obama will do what he wants. And I will oppose the evil in high places.
As to the Necessary and proper—constitutional defense. It seems the interloper and fraudulent resident of the White House has a much different understanding of necessary and proper than what was understood when the Law of our Constitution was ratified. If the Law is understood according to its meaning when it was adopted— It may be necessary for the unConstitutional legislation to stand for the mandate to be included—but is it proper for the Government to dictate what is proper for the people? The rights of conscience ought not infringed by despotic ruler— and if the law is upheld by a Court divorced from fundamental principles the Divider in Chief will have succeeded in making a growing faction of our society ever more hostile and disenfranchised from participatory government.

[liberalh8ter]

Yep, we're at the same point in our disdain for American politics. I commented yesterday that I wish we could just skip ahead to the November election and either re-elect Obama and get CWII underway or elect Mitt and get CWII underway...

[traditional1]

"re-elect Obama and get CWII underway or elect Mitt and get CWII underway"

The problem will be that if Romney-the-RINO is able to win despite all the Fraud and Illegal voters, he will be no different, but will get the State-Run-Media's "give him time" excuse while he continues the takeover of Society by Big Government meddling.

CWII will become inevitable, but in the meantime, the opposition will continue to be bolstered in numbers by the Illegals that keep pouring across the border.

With any luck, the Jihadists will hit Washington D.C., and we can gain a do-over.

[MrB]

"necessary and proper" clause... might as well just refer to the "general welfare" clause as justification for anything you want to do. Madison: "With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

[MrB]

I don't know why that malformed my post, but here's a more readable version... "necessary and proper" clause...
might as well just refer to the "general welfare" clause

as justification for anything you want to do.

Madison:

"With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

[liberalh8ter]

Either way, at this point, I see it as our only hope. Even if we were to get someone other than Mitt, the commies will use the next 4 years for organizing and planning. They need to be driven out of our society, not merely pushed back.

[Jacquerie]

Constitution Ping!

There is absolutely nothing in the Constitutional Convention, Federalist Papers, State ratifying Convention records to support this horrific and purposeful misuse of the necessary and proper clause.

Necessary laws implement enumerated powers. The entirety of Obamacare fails this test.

Proper laws do not violate our God given, or Constitutionally itemized rights. Obamacare is a direct assault on such rights.

[IamConservative]

At this point, one has to wonder why whether a law is constitutional or not is even an argument. The whole DC establishment tramples in the constitution every chance they get.

[mo]

The Court will favor the RinoCracy. They had hoped to have Mittens crowned and annointed by the Pubbies at this point to make the ruling less controversial, and less of an issue for the fall election.