Posted on 03/20/2012 7:58:08 AM PDT by Mikey_1962
The pressure of the continuing countdown to Monday, March 26, when the Supreme Court takes on the challenge to ObamaCare, has forced legal advisors to the White House to change their strategy in hopes of successfully rebuffing it and preserving the Obama administration’s key legislative victory signed into law in March, 2010.
It’s all about the mandate and whether it can be sustained by claiming justification for it under a generous reading of the Commerce Clause (Article 1, Section 8, Clause 3) in the Constitution. Without that mandate, the administration claims that the rest of the law would necessarily fail due to its excessive costs. The Congressional Budget Office just reported that those costs would be double what the Obama administration touted in its cram-down of the law two years ago. And another CBO study said that, if implemented, millions of citizens — between 3 million and 20 million — would actually lose their present coverage, while public polls continue to show declining support for the whole idea of the federal government’s virtual takeover of the country’s health delivery system.
An ABC News/Washington Post poll taken in January showed that most of those polled think that ObamaCare, if implemented, will cost jobs, hurt the economy, and cost more than projected. Last week’s poll from the same source showed that two-thirds of those polled “say the U.S. Supreme Court should throw out either the individual mandate…or the law in its entirety.” According to the pollsters, "[T]he law has never earned majority support in ABC/Post polls — and this update…finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law…"
Another measure of the intensity surrounding the pending Supreme Court hearings (a record six hours are scheduled over three days next week) is the number of “amicus" or "friend of the court" briefs that have been submitted by parties who are interested in influencing the outcome of a lawsuit but who are not parties to it. Reuters reported that 136 briefs have been filed with the court (a stack about two feet high), a third more than the previous record number filed back in 2003 over an affirmative action lawsuit involving the University of Michigan.
The change in strategy moves the defense of ObamaCare away from the Commerce Clause and directs it instead to the Necessary and Proper Clause (Article 1, Section 8, Clause 18) of the Constitution, which reads:
The Congress shall have Power — To 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 the Government of the United States, or in any Department or Officer thereof.
The argument goes like this: Because it’s [allegedly] proper for the government to reform the interstate market in health insurance by requiring insurance companies to cover everyone regardless of health status without charging higher premiums, then it follows that the mandate forcing participation is “necessary and proper” to keep the additional costs that regulation would cause from bankrupting the country.
The White House recognizes the reality that they have four justices likely to support ObamaCare, and four who are likely to rule against it, leaving one — Justice Antonin Scalia — in the middle. In a previous case, Gonzales v. Raich, Scalia noted in a separate opinion that the federal government could prevent people from growing their own medical marijuana as a “necessary and proper” way of carrying out the government’s broader power to criminalize drug usage. Such a claim, using Scalia’s own argument, is giving the White House the opening it needs to keep Scalia in line, remain consistent and force him to side with the administration on the matter.
With so much attention about to be directed to the Supreme Court’s hearings next week, it is going to be hard for the court to avoid offending someone. If ObamaCare is upheld, the Supremes suffer in the court of public opinion. If ObamaCare is ruled unconstitutional, the Obama administration will suffer a grievous, perhaps fatal, blow to its reelection efforts.
Of course, analysts have pointed out that the court just may find a way to delay making any decision at all until after the election, thereby offending everyone and confirming for observers that the rule of law no longer matters and that the federal government is free to do whatever it pleases in disregard of the Constitution altogether.
Two appeals court justices, both friends of Scalia, cited his opinion in Raich to uphold Obamacare:
Both Silberman and Sutton cited Scalia’s opinion in 2005 upholding strict federal regulation of marijuana in the case of Angel Raich, a Californian who used home-grown marijuana to relieve her pain. “If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption,” Sutton wrote, “it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”
http://mobile.latimes.com/p.p?a=rp&m=b&postId=1165037.
“I really can’t believe a single judge could side with Obama on this if they have a shred of respect for the spirit of the Constitution of the US.”
You have identified the problem, four of them don’t, and the others waiver. On top of that, they view The Law as an entity in and of itself, rather than a vehicle for ordering the country’s processes. I never cease to be amazed at how willing they are to continue to sidestep dealing with the critical issues of our time. You just have to wonder how long they can fail to deal with the 2A head on. They are all less than adequate.
“I really can’t believe a single judge could side with Obama on this if they have a shred of respect for the spirit of the Constitution of the US.”
You have identified the problem, four of them don’t, and the others waiver. On top of that, they view The Law as an entity in and of itself, rather than a vehicle for ordering the country’s processes. I never cease to be amazed at how willing they are to continue to sidestep dealing with the critical issues of our time. You just have to wonder how long they can fail to deal with the 2A head on. They are all less than adequate.
There is no chance that lack of health Ins will.
Wrong, there is EVERY chance that lack of Health Insurance will end up in Interstate Commerce! (At least that is what the adminsitration will argue!)
The Adminstration is arguing that your NOT purchasing insurance adversely affects the price paid by everyone else in the country and therefore the compulsary clauses are necessary and proper to fulfill the government's duties under the commerce clause.
So? According to Scalia:
...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.
Scalia concurring in Raich
They won’t address 0bama’s eligibility because of their fear of social unrest.
Perhaps we need to be a little more “unrestful” about this.
Madison said it before ratification, that if, in his case, the General Welfare clause was interpreted to justify anything, then the rest of the constitution was moot.
Now we have, in addition to the General Welfare clause, the Commerce Clause, and now the “Necessary and Proper” clause being used to circumvent the very essence of the Constitution - that of limited general government.
Now? That boat left port a very long time ago ...
—Really? If you absolutely need tomatoes and the government prevents you from growing them yourself, are you not forced to purchase them? —
No. You have the right to go without them. Likewise with health insurance. I actually know someone that has no health insurance because they are so well off they can cover any health expense as you or I would cover an oil change or a new set of tires. Should they be required to purchase health insurance.
“it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”
Key word: Regulate.
Also, Regulate is very different from “mandate the purchase of insurance”.
I think very specific things are being argued in this case. It is ALL about requiring people, by simple virtue of being American, to buy something, and at the federal level. That a single judge would even consider to rule in favor of it stinks to high heaven.
Nice way to avoid the question and the issues involved.
Since health insurance is regulated by the states and cannot be purchased from an out-of-state insurer, I'm curious to know how whether or not I purchase health insurance can affect interstate commerce. Currently there is no interstate health insurance market, is there?
“it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”
Also, it is just an opinion. One I disagree with.
Exactly. Regulate: to control or direct by a rule, principle, method, etc.
Also, Regulate is very different from “mandate the purchase of insurance”.
In what way? A mandate to do something is a regulation of that activity.
I think very specific things are being argued in this case.
Agreed, but you are ignoring the arguments and the precedents.
The administration is arguing that by NOT purchasing the service, you make it more expensive for all others (smaller pool sharing the risk) and thus you are adversly affecting commerce. Therefore they have the "right" to regulate. IOW, they have moved the goalposts and have a good amount of precedent on thier side, Gonzales vs. Raich being one of them.
We can argue all we want about whether the arguments meet original intent, but that is moot as original intent no longer applies to anything regarding the commerce clause - the courts having eviscerated it long ago.
... Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. Scalia in Gonzales vs. Raich.
Currently there is no interstate health insurance market, is there?
Under ObamaCare there is ....
I get what you are saying, but my point is that it is the same kind of twisting of logic that allowed a college kid back in the early 70’s to write a term paper proving black is white.
You could use that line of thinking, twisting as you see fit, to allow literally anything.
Which, I confess, is what I fear and why this case is such a big deal to me. If they side with Obama, the US is officially finished and the constitution is LITERALLY (not “mostly) not worth the paper it’s written on.
At that point, it is every man for himself.
For instance, the Constitution of 1787 allowed for direct taxation. Congress could have passed a tax of $5 per person to pay the national debt at the time, for it was clearly necessary. Congress could NOT issue general warrants for federal tax collectors to enter each and every home in order to collect the tax because the IVth Amendment prohibits general warrants.
Even if Obamacare is necessary to implement an enumerated power (it isn't), it must be proper. That means it may not violate another portion of the Constitution, which it does, the Ninth Amendment.
It is a two fold test, both necessity and propriety are required.
Here is a thorough analysis of the necessary and proper clause by Randy Barnett.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.