Never in the field of human conflict was so much owed by so many to so few ...... ? Churchill
The Four Horsemen of the 0bamaclypse?
Posted on 03/29/2010 3:55:08 AM PDT by Kaslin
The same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement as more than a dozen states have called on the courts to strike down the health insurance mandate of Democrats' health care overhaul - a move that would threaten the entire law.
Two major constitutional challenges have been levied against the new law, one by the state of Virginia, which enacted a law exempting its citizens from the federal health insurance mandate, and another by Florida and 12 other states. Legal scholars are divided on the merits of the cases, and even Congress - through its research service and its budget scorekeeper - has said it's an open question whether the provision could pass constitutional muster.
At issue is the scope of the federal government's power over states and individuals. Critics of the law say the requirement that all Americans buy insurance or pay a fine, if allowed, would mean that Congress has virtually boundless authority to compel actions. Proponents argue that legal precedents support an expansive reading of the legislative branch's license to regulate such activity.
(Excerpt) Read more at washingtontimes.com ...
Yeah, but “bares repeating” sounds way too suggestive.
bttt
Yes, but if it is Stevens and Ginsburg - the likely two - the makeup of the court won't change at all. It will still be a 5-4 court.
However, if Obama and his thugs bump off Alito, Roberts, Thomas or Scalia, we're in trouble........
And what a sad day for the Constitution that was. Wickard v. Filburn, 317 U.S. 111 (1942), was one of those insane SCOTUS decisions that led to the state of affairs we have today.
If Obama was smart (a big IF) he would replace them with liberals who might influence other SCOTUS members. Sonya Sotomayer 'aint gonna cut it. Her colleagues are probably already making jokes about her.
"It would be difficult for the court to hold that the law is outside of the power to tax and spend for the general welfare without calling into question various regulatory devices that both parties use in crafting legislation," Mr. Balkin said. "Since the New Deal, both parties have used the taxing and spending power for a wide range of regulatory purposes and this is what the challenge to the health care bill calls into question."
Notice the "both parties" reference which is absolutely true...both have misused the Commerce Clause, G&W and Necessary & Proper Clause to expand the power and scope of the federal government.
Never in the field of human conflict was so much owed by so many to so few ...... ? Churchill
The Four Horsemen of the 0bamaclypse?
Not everyone agrees with that reasoning.
"It is a taxation and spending power, not an open-ended general welfare clause," said Michael W. McConnell, a Stanford law professor and former circuit court judge appointed by President George W. Bush. "And by the way, 'general' had a very specific meaning in the late 18th century - it meant nationwide in scope, which is why some of the state-specific provisions are constitutionally dubious."
Congress lawfully could enact a general tax to pay for these subsidies or it could create a tax credit for those who buy health insurance, but that would require Congress to "pay for" or budget for the subsidies in a conventional manner. The sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or--through the gimmick of unconstitutional taxes or penalties they dub "shared responsibility payments"--make these transfers appear to be revenue-enhancing.
While not controlling, sometimes the rationale (more broadly, the intent) for an agency's act is a factor in whether or not it is unconstitutional, e.g., arbitrary and capricious. IOW, there could be a case where the agency had a lawful goal and, say, out of demonstrable necessity, had to accomplish that goal by going a certain route -- and, say, taking that route had no real downside.
Even if someone could dream up such a fact set, THIS IS NOT IT. Clearly, there is one purpose and one alone for using the "individual mandate": that is, political chicanery and budget obsfucation. This "mandate" is being used to circumvent and blather over the precise bond of political accountability between "Representative" and the "represented" that fundamentally defines our system of government under the Constitution.
In short, the "individual mandate" is being used to LIE TO THE AMERICAN PEOPLE, both as to what this legislation costs and as to who is going to pay for it. (The latter because this legislation is billed as providing "insurance for all" while it operates as a direct and arbitrary transfer of wealth between citizens.) This mandate has no legitimate or appropriate legislative purpose or utility.
As I wrote on a different thread [at # 67]: about Heritage's take on this issue
The Rats have substantially complicated their legal position by their own cowardice. . . . So, it seems to me the feds are between a rock and a hard place here. It’s likely they can fairly easily win their case by arguing that the individual mandate actually is a tax with a cute name. But then they’ve got the political problem that they’d be admitting that this “free” healthcare actually is going to be funded, first, by a direct tax on individuals regardless of income.
If the feds cannot directly force the states to fund Medicaid, I'm interested to see on what basis the feds think they can force individuals to fund Medicaid through individual "purchases," not invoking the feds' power to tax.
Moreover, if states can opt out of Medicaid, maybe this gives them standing to opt out, essentially, on behalf of all citizens of the state.
Then there is this problem [at # 83]:
The 9th Cir. (San Francisco, of course) has ruled that States cannot cut Medicaid spending because that denies "equal access to healthcare to the poor." So who owns a State's budget process and budget priorities? The feds? Do the feds also directly own the wealth of a State's citizens, through a newfound power to impose individual mandates? If the above are "yes," -- if States have a limited pot of money and the federal government has the power to come in and TAKE ALL OR MOST OF IT -- do States exist in any real way except as administrative pass-throughs for the federal government?
I really hope the Obamacare lawsuits include a discussion of the implications of how the rationale of the 9th Circuit + unlimited unfunded federal mandates, even imposed directly on a state's citizens = TOTAL FEDERAL CONTROL OF A STATE'S BUDGET PRIORITIES.
In fact, Obamacare is forcing Arizona to walk back Medicaid cuts it had scheduled for this year to help stem its budget gap. Arizona wants to spend its money elsewhere. The feds are saying "TOUGH." So who owns Arizona?
Marxistcare is a better term.
Dick Morris outlined this strategy in November in a pretty good article. Just need to pick up on it more in the months ahead:
Obamacare = Big State Tax Hikes:
Anxious to avoid raising taxes too much to pay for their health care proposals, the Obama Administration and its Congressional allies hit on a great new idea: Make the states raise their taxes to fund the program instead.
[snip]
In some states, like New York, where Medicaid covers everyone making 150% of the poverty level already, there will not be any extra required spending.
But not so in California, which only covers 100% of the poverty level. Were the House bill to pass, the already fiscally beleaguered state would have to increase its Medicaid spending on poor people by 50%, at least an extra $2 billion a year and perhaps more.
In many Southern states, the Medicaid program only covers a portion of those living below the poverty level. For these states, the requirement to cover all those in poverty and then 50% more will cause enormous increases in taxes. In Arkansas and Louisiana, where swing Senators Pryor, Lincoln, and Landrieu come from, the cost could exceed $1 billion for each state each year.
Unfunded mandates for state spending imposed from on high in Washington have always rankled governors. The Senators and Congressmen in Washington get the credit for spreading largesse but the Governors in the states get the blame for the taxes that are needed to pay for it.
Since Democrats currently control the vast majority of governorships, this process of making their own party members take the rap for raising taxes is politically self-destructive in the extreme. But Obama is so desperate to pass his health care legislation that he doesn’t care what havoc in his party he reaps in the process.
The question now is whether the governors of the fifty states, particularly the Democrats, are going to sit idly by and let their budgets be destroyed by the health care bill.
If you get on the first cattle car of 0bummerCare, don't be surprised when they require you take the communal "shower" at the camp.
...”at the consent of the governed?????”....well it’s pretty obvious they are NOT listening....additionally, the constitution means zip to Progressives, they believe it outdated to our times. They want our constitution to reflect the “changing” times....which is we cannot risk a constitutional convention, where they will surely ram their concept down our throats.
If its Stevens and Ginsburg [as likely] that leave - Obama would just be replacing liberal votes with liberal votes ...
...they need a 5th...
“The 4 conservatives and 2 moderates are not going anywhere..” that we know of.
I would not be surprised if at least one died of , ahem, ‘natural causes’ or ‘suicide’ in the near future.
This administration is EVIL.
President Reagan - is 0bamacare constitutional?
that was the intent all along.
I do believe there are more of us than socialists....and am grateful for the Tea Party Movement, though hopefully they can remain fluid and free from the push to have leadership. They are doing very well with just those who organize them throughout the nation. I want to see it stay that way.
This raises my concern for the safety of conservative members of the SCOTUS. This healthcare mess will end up there and BO and co know they willl lose there. It only takes the loss of one or two members to change the outcome. I don’t put anything past them.
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