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.
That point has already been settled by the court in Gonzales vs. Raich.
That means it may not violate another portion of the Constitution, which it does, the Ninth Amendment.
Gonzales (and a lot of precedent prior to that!) does exactly that! It establishes that almost ANY activity can be deemed to fall under the commerce clause AND that these types of activities are "never more than one step away from interstate commerce".
The court has repeatedly found that the constitution does not mean what it black letter says, but rather that it means what the COURT says it says! We likely face a 4-4 split with Scalia, who penned the "never one step away" clause being the decider. THAT does not make me comfortable!
That is exactly what that decision allows!
In 2005, I wrote:
"Not only is it impossible to distinguish 'controlled substances manufactured and distributed intrastate' from 'controlled substances manufactured and distributed interstate' but it hardly makes sense to speak in such terms," he said. "As the court explains, tomatoes which are grown at home and possessed for personal use are never more than an instant from the interstate market and this is so whether or not the possession is for nutritional use or lawful use under the laws of a particular state." Post 38
This is more or less a simple substitution. It is absurd - but - it is also now precedent.
Do you agree or disagree with the Raich decision?
—Do you agree or disagree with the Raich decision?—
Well, it’s sticky for me. It offends me that the government can regulate something that may grow wild in some areas. However, the way the laws are written I do believe the decision was within the constitution.
But I believe there is a chasm between the government preventing someone from doing something and forcing them to do something. Take the Jim Crow laws. In that case, the government said you could not discriminate based on race. The “kept them from doing something”. But with affirmative action, it was not only the opposite (forcing them to do something) but was actually government forced racial discrimination (forcing businesses to hire or otherwise deal with certain people over others based solely on race). The former was “government permitted” discrimination while the latter was “government forced” discrimination.
It is disgusting.
I’m only surprised the bastards did not try to make the tax retroactive......
Check my prior links and learn.
What does the way the laws are written have to do whether Raich is within the Constitution or not?
You also just endorsed the New Deal Commerce Clause, which makes possible federal control of education, welfare, the environment, as well as health care.
Only Fox News covered this reality. Only the Tea Party raised h e double toothpicks about it.
Whatever...
I figured that was where you were going. Your question was so loaded I could smell the gunpowder. :-)
"However, the way the laws are written I do believe the decision was within the constitution."
That's an expression of contempt for the Constitution.
—That’s an expression of contempt for the Constitution.—
What is? All I said is “However, the way the laws are written I do believe the decision was within the constitution.”
You see, some laws are constitutional, and some aren’t. That was my point. It is constitutional to make some things illegal. Crack cocaine, for example. When I say a decision is within the constitution, what I mean is that I agree with it and believe it from a constitutional perspective.
So where does the Constitution delegate to Congress the authority to dictate intrastate drug policy? Answer - Via the expansive New Deal view of the Commerce Clause. It is the same precedent that allows the federal govt to control health care, education, the environment etc. It has all but nullified the Tenth Amendment.
That's what you're signing on to when you support the Raich decision. Agreed?
—That’s what you’re signing on to when you support the Raich decision. Agreed?—
No. I don’t agree. The federal government CAN control some intrastate activity. Slavery, for example.
That power is delegated by the 13th and 14th amendments, not the New Deal Commerce Clause. Raich depends on the New Deal view of the Commerce Clause, as does fedgov control of health care, et al.
So yes, you are signing on to it when you support Raich.
” Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”
I don’t see how anyone can spin that into regulating non-activity, which would have to be done to apply to Obumblecare.
Out of curiosity, did you support the Raich decision?
To make that fit the case now, the ruling would have had to order the lady to purchase other drugs rather than using pot.
I'm sure the ruling left the option of using nothing open to her.
I guess we will find out in a few months.
Did you support the Raich decision?
Learn what? That you can't understand that the court doesn't care what that person thinks? Willard was an atrocity - Raich, which could have been used to remove that bad precedent instead codified it further.
And you honestly think that the court will now suddenly find new meaning in necessary and proper?
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.