Posted on 03/16/2012 1:23:18 AM PDT by 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.
How will this matter conclude????
ONLY THE BEES KNOW !!!
Only the bees!!!
Door #1: Overturn Wickard v. Filburn
Door #2: CWII
As Mark Levin points out in his excellent new book “Ameritopia”, the Rats “front loaded” the legislation (passed as I recall by 219 to 212) with hundreds of billions of dollars that were allocated without going through constitutional legislative avenues, and with no legislative approval while they had a supermajority in Congress in order to entrench the bureaucratic tentacles of this unconstitutional monstrosity before the next election cycle.
By the time anyone (if they even do) gets around to revoking it, they will be unable to do so due to all the agencies created, the government employees hired, the offices outfitted with computers and furniture and so on.
I hate liberalism. I hate it. Yet here we are, with a president who likely has LESS than a 40% approval rating, and we are going to put Romney against him and likely see Obama win.
The Constitution has been ignored for so long with NO ramifications or penalty for doing so, that it is being roundly ignored.
The left is attempting to justify the Obama regimes actions by comparing the abortion pills mandate to actions taken against polygamy with the Mormons and brutality in Shia law, as practiced by Islamists. First, it should be pointed out that Mormonism began after this nation, and most all of Christendom, had established the higher moral tradition of monogamous marriage. The Government was acting to prevent an immoral and harmful practice. The same can be said when we prevent Islamists from practicing slavery, polygamy, murdering of children and wives, and so forth. Both are instances of the Government stepping in to prevent criminal activity when no other social agencies had the authority to do so. Forcing religious institutions to distribute birth control and abortion pills, and offer abortions is a very different matter. It is making it a crime to practice the Christian doctrine of respecting and honoring human life, given by God. It is also forcing religious institutions and their members to participate in sexual immorality. That is the government establishing the religion of humanism over Christianity. Exactly what the government is prohibited from doing in the 1st Amendment. Government has made a law establishing humanism and that value system, and it is prohibiting religious institutions from practicing higher moral values, even though nothing they are doing directly prevents others from practicing their immorality as promoted by the government.
“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. “
If I follow, they’re saying it’s okay to violate the constitution so long as it helps you do whatever it is you want to do, in this case socialize healthcare. Which makes me wonder why we have a constitution at all.
“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.”
That makes no sense. There isn’t any justification for the Drug War except on commerce clause grounds, so far as I know. Or, should I say, on the phantom modern commerce clause; it’s not actually justified at all.
Anyway, “limits on individual growers” has to be an acceptable regulation of commerce whichever way you cut it: either as an end in itself or as a tiny corner of the larger Drug War.
“Criminalizing mind-altering drug use is a far cry from forcing people to pay for government health insurance.”
No, it isn’t. For growing and using your own drugs is not commerce any more than mere existence (the basis for falling under the mandate) is. It’s just that SCOTUS precedence since Wickard v. Filburn says growing stuff on your property is not only economic activity but interstate commerce. There is no such precendence for regulating the obviuous non-commerce that is being a breathing adult citizen.
“if it’s a ‘tax’ for not purchasing something, what are they taxing?”
Existence. Call it the Life Tax.
Especially when the GOPe such as Boehner are in their pocket. He could have undone this since not congress can bind a future congress, but he claimed he couldn’t defund it because of some stupid rule.
If people don't wake up to the fact that we have traitors within, then we are indeed finished as a Republic.
Thanks very much for the ping/post; thread. Waiting...watching. BUMP-TO-THE-TOP!
Overturn Wickard v. Filburn
There was no and is no Constitutional basis for Federal action against Mormon polygyny. It was unConstitutional then and it still is now. Read the history of it. It was an utter mess.
Now, with government deeply entrenched in our lives through the 16th, Amendment 16 they tinker incessantly.
The link to Randy Barnett’s analysis of the Necessary and Proper clause in post 18 is superb.
That’s why Scalia is so dangerous. He’s a big government conservative. How I wish we had 5 more Thomases and in their 40’s.
“The government could step in as a necessary and proper way of carrying out its broader power “
To establish Forced Federal Labor Camp, U.S. Territory, every citzen age 26, except the Nazi Exempt Ones, who Exempted themselves.
Arbeitsziehungslager, Forced Federal Labor Camp, Fascists’ Exempt.
That’s right, discrimination flat out. Their great mantra, conveniently ignored this time.
Arbeitsziehungslager, Forced Federal Labor Camp 2014, Fascists Exempted themselves....DISCRIMINATION
A WORD OF CAUTION TO THE MEDIA
by Greta Van Susteren
Mar 16 2012
Sometimes when someone writes an article, others in the media seize upon it and it suddenly gets a ‘life of its own.’ That ‘life of its own’ can start a narrative in the media that is repeated. That is fine if it is correct and does not give a false impression to the public.
(and this is not the author’s fault, but rather how others have already begun to read it.)
_______________________ As the Supreme Court argument date over healthcare approaches, the Obama administration is NOT “shifting” its healthcare defense. (see below.) It is arguing the SAME points it raised in the lower appellate court – including the one that is the subject of this article below (the Necessary and Proper Clause.)
The “Necessary and Proper Clause” is not new to the litigation. It is old. It got plenty of attention in the lower court. (I was even in that Florida Court when it was argued.) That clause, and thus that argument by the Administration using that clause as support, was simply rejected by the lower court so naturally the Obama Administration is now asking the Supreme to review it, to reverse it. This is routine. It is not a shift if you ask the Supreme Court to review an argument you raised in the lower appellate court but which was rejected by that court.
In fact, without first arguing it in the lower court, the Administration would now be barred from raising it FOR THE FIRST TIME in the Supreme Court. You can’t raise new issues in the Supreme Court – you only get issues argued below considered (and upheld or reversed.)
It is appellate practice 101 — you raise every issue you think has merit (as the Administration did in the lower appellate court) and you hope that you are persuasive on one of them to give you the legal victory you seek.
http://gretawire.foxnewsinsider.com/2012/03/16/a-word-of-caution-to-the-media/
Fascinating. I’m just finishing the 1st quarter of the link on my 2nd read-through. Fascinating link BUMP!
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