"To do so would require us to conclude that the Constitution's
enumeration of powers does not presuppose something not enumerated, and
that there never will be a distinction between what is truly national
and what is truly local. This we are unwilling to do." - United States v
Lopez, 514 U.S. 549 (1995)
"Federalism secures to citizens the liberties that derive from the diffusion of sovereign power. [Federalism] protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.... By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the states." - New York v United States, 505 U.S. 144 (1992)
There is nothing in the individual mandate that you should read as "clearly constitutional." Even the judges that have upheld the mandate have said it is an issue of first impression. The CRS, the CBO, DOJ, and Obama WH counsel have been unable to come up with one example in the history of this Republic where the Federal government has been allowed to mandate that private citizens enter into contracts with third-parties for the provision of government-approved goods or services as a condition of good citizenship. Not one.
The Commerce Clause was written to regulate commerce by and between the states, not within them and not between individuals. While many on your side want to focus on Wickard and Raich, you overlook Lopez at your own peril. Obamacare FAILS Lopez.
Commerce Clause precedent has involved some sort of activity that was economic in nature or could have an economic impact. What provoked the ire of the Feds in Wickard and Raich? Did the Feds come after them because they were just sitting on their sofas? No.
Could it be they were engaged in the activity of, um, growing something that had an economic impact, according to the government anyway? There was an ACTIVITY that had an economic impact.
Wickard and Raich are not on point in the instant case.
The failure to purchase health insurance is an INactivity. It doesn't affect commerce nor is it economic in nature.
The Violence Against Women Act, United States v. Morrison, 529 U.S. 598 (2000), Gun-Free School Zones Act of 1990, United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995), and The Child Pornography Prevention Act of 1996, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) were all struck down because Congress had attempted to use the Commerce Clause to regulate INactivity and activity not economic in nature.
The other problem you have with Obamacare is with the possibility of an improper commandeering under the Medicaid expansion. See: New York v. United States, 505 U.S. 144 (1992) and Printz v United States, 521 U.S. 898 (1997). The Federal government cannot dictate to the states without restraint. It can't dictate to the states that they must raise the driving age, drinking age or the speed limit even though all three can affect interstate commerce because of the interstate highway system.
The Federal government can only set reasonable conditions to the funds that it would direct to states. See: South Dakota v Dole, 483 U.S. 203 (1987). The Federal government cannot just double the size of Medicaid and then tell the states to find a way to fund the programmes nor can it commandeer the use of state employees to implement insurance exchanges.
The argument that the uninsured offload their medical expenses onto others doesn't make healthcare special. They do offload their medical expenses...but, the same argument is true of homeowners that go into foreclosure, people who default on their credit cards, people who file bankruptcy, etc.
We all end up paying for them. Healthcare is no different and, to argue otherwise, is only an attempt to demand more control over people and the economy.
There's your constitutional analysis and why I continue to stand by my prediction of a 5/4 decision with Kennedy writing for the majority that pulls the plug.
"Federalism secures to citizens the liberties that derive from the diffusion of sovereign power. [Federalism] protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.... By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the states." - New York v United States, 505 U.S. 144 (1992)
There is nothing in the individual mandate that you should read as "clearly constitutional." Even the judges that have upheld the mandate have said it is an issue of first impression. The CRS, the CBO, DOJ, and Obama WH counsel have been unable to come up with one example in the history of this Republic where the Federal government has been allowed to mandate that private citizens enter into contracts with third-parties for the provision of government-approved goods or services as a condition of good citizenship. Not one.
The Commerce Clause was written to regulate commerce by and between the states, not within them and not between individuals. While many on your side want to focus on Wickard and Raich, you overlook Lopez at your own peril. Obamacare FAILS Lopez.
Commerce Clause precedent has involved some sort of activity that was economic in nature or could have an economic impact. What provoked the ire of the Feds in Wickard and Raich? Did the Feds come after them because they were just sitting on their sofas? No.
Could it be they were engaged in the activity of, um, growing something that had an economic impact, according to the government anyway? There was an ACTIVITY that had an economic impact.
Wickard and Raich are not on point in the instant case.
The failure to purchase health insurance is an INactivity. It doesn't affect commerce nor is it economic in nature.
The Violence Against Women Act, United States v. Morrison, 529 U.S. 598 (2000), Gun-Free School Zones Act of 1990, United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995), and The Child Pornography Prevention Act of 1996, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) were all struck down because Congress had attempted to use the Commerce Clause to regulate INactivity and activity not economic in nature.
The other problem you have with Obamacare is with the possibility of an improper commandeering under the Medicaid expansion. See: New York v. United States, 505 U.S. 144 (1992) and Printz v United States, 521 U.S. 898 (1997). The Federal government cannot dictate to the states without restraint. It can't dictate to the states that they must raise the driving age, drinking age or the speed limit even though all three can affect interstate commerce because of the interstate highway system.
The Federal government can only set reasonable conditions to the funds that it would direct to states. See: South Dakota v Dole, 483 U.S. 203 (1987). The Federal government cannot just double the size of Medicaid and then tell the states to find a way to fund the programmes nor can it commandeer the use of state employees to implement insurance exchanges.
The argument that the uninsured offload their medical expenses onto others doesn't make healthcare special. They do offload their medical expenses...but, the same argument is true of homeowners that go into foreclosure, people who default on their credit cards, people who file bankruptcy, etc.
We all end up paying for them. Healthcare is no different and, to argue otherwise, is only an attempt to demand more control over people and the economy.
There's your constitutional analysis and why I continue to stand by my prediction of a 5/4 decision with Kennedy writing for the majority that pulls the plug.
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