Monday, March 22, 2010

FLG Wonders

Matt Yglesias dismisses questions about the constitutionality with one swipe -- the commerce clause. The overly broad interpretation of the commerce clause does bug FLG, but he's willing to concede that most of the bill is kosher under the common judicial interpretation of the clause.

Nevertheless, he's not quite sure that an mandate forcing individuals to buy a private product is an open and shut case to be dismissed with a wave of the hand holding the commerce clause. Doesn't mean it's necessarily a problem either. FLG doesn't know enough about the issues involved. Maybe there's precedent, but it strikes him as a bright line.


George Pal said...

No less a target for calumny for Yglesias and his ilk than the birthers and tea-partiers will be the “tenthers”.

Behind the tenthers is the fundamental point that the states created the national government when they joined the compact and not the other way around. The states therefore retained the power to judge for themselves the constitutionality of federal laws and reserved the right to refuse to enforce them if they went beyond their constitutionally delegated powers, i.e. federalism, nullification.

Of course this is neither here nor there and we won’t know for sure until the chicken bones are tossed and the Supreme Court commences with the osteomancy.

Anonymous said...

This is not a joke. The bill needs to seen before it can be decided if it is actually unconstitutional.

That said there are 37 state challenges to it and those will involve not the individual mandate but the commerce clause and the tenth amendment.

There are bills being passed through state legislatures freeing the people from forced participation.

And the truth is, is if this bill does get tied up in the courts, then a new congress can write a bill declaring this one unconstitutional, pass it and send it up to Obama, the constitutional law professor to sign.

Mrs. P

Anonymous said...

Oh and then there is the general welfare clause.

There will be challenges on all of this and the most the Left can do is cry racist....

Mrs. P

Anonymous said...

Just read this - From the Corner:

UPDATE: A statement from Washington Attorney General Rob McKenna, who today announced he will join the suit (11 other states):

"I'm concerned that the measure unconstitutionally requires all Washingtonians to purchase health insurance and *places an extraordinary burden on our state budget by requiring Washington to expand its Medicaid eligibility standards in violation of our state's rights guaranteed under the 10th amendment.*"

"I believe this new federal health care measure unconstitutionally *imposes new requirements on our state* and on its citizens. This unprecedented federal mandate, requiring all Washingtonians to purchase health insurance, violates the Commerce Clause and the 10th amendment of the US Constitution."

UPDATE II: Ed Morrissey points to a 1994 CBO memorandum calling an individual mandate to provide insurance coverage "unprecedented."

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants. The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.

This is a mess.

Mrs. P

Alan Howe said...

While I was in the Gulf for the Iraq war and eligible under my contract to retire, a majority of Americans decided to hold me in place through our Commander-in-Chief in a program called "Stop Loss." Many others were held beyond the end of their contracts--after they no longer owed us anything.

And, of course, all of us register through the Selective Service in case our lives are needed in service to our country. This is a follow-on to the draft that required Americans to don a uniform and risk their lives because a majority of their fellow citizens thought we needed to fight a war. Many Americans died through this process.

With that history, those precedents, I find it both laughable and very insulting to suggest that Americans cannot be told to buy health insurance rather than leaving the cost of their emergency care to their fellow taxpayers.

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