Some useful thoughts from James Taranto:
In defense of Marshall, he runs a political blog and is not a lawyer. But our sense is that he accurately captures, as well as mirrors, the prevailing mentality of those on the progressive left who are lawyers. They refused to take seriously the argument that ObamaCare is constitutionally infirm, and they are now realizing that was a mistake.
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was “crazy” to harbor any doubts about the constitutionality of ObamaCare.
Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence.
Don’t worry, we got over our hurt feelings. But the dismissive attitude we encountered in that conversation and again in Marshall’s post leads us to think that the pro-ObamaCare side may not be prepared to mount a convincing legal defense. If there were five Stephen Breyers on the Supreme Court, they wouldn’t need to. But there are only four. If the Obama administration’s lawyers are to win over Justice Anthony Kennedy, they’ll have to do a lot better than arguing that the other side’s case is stupid, crazy and laughable.
And yet, based on the evidence, they don’t seem to be capable of it. Remember Crazy Nancy’s cackles of “Are you serious?! Are you serious?!” Yes, we were.
This is just a special case of the general proposition that the left, because it has cocooned itself in academia, the Beltway and the mainstream media, and excluded those with other views, isn’t used to actually having to defend its views, and when confronted with actual arguments against them, has to resort to “hater,” “racist,” “wingnut,” etc. It’s arguments, such as they are, are hothouse flowers that can’t survive in the wild. And probably won’t survive the SCOTUS, either.
It was obvious along time ago, that the lefties figure they can say anything they want – no matter how outrageous – and be completely safe in doing so. Clearly the Couric Great Unwashed haven’t the native wit to pay attention, and/or have enough working synapses to see the glaring stupidities uttered.
Here you go, an argument that is not a hothouse flower:
The dubious enumerated power doctrine
http://findarticles.com/p/articles/mi_hb3086/is_1_22/ai_n29239686/
Geez, what a piece of crap, Bob. I stopped reading right here:
The enumerated powers of article I, section 8 are best read as desirable activities that are illustrative of the appropriate national sphere, but not exhaustive.
Ah ha ha ha ha. The most ludicrous fantasy-land nonsense I’ve heard since the Soviets used to argue with straight faces that Russians had more “rights” than Americans, because the Russians had the “right” to a good job, enough food, and could control their state through The Party free of the pernicious influences of big corporations.
And you seriously think an argument like that would survive (1) Supreme Court review or (2) exposure to the votes of the American citizenry? I assure you, the great mass of American people really do believe that the Constitution really does forbid government from doing lots of things. They would laugh at the notion that its supposed prohibitions are merely advisory.
That’s absurd. Despite the courts’ willingness to allow government power to expand over the years, there isn’t an opinion that I’ve ever heard of rejecting the notion that the Constitution is a document setting forth certain limited and enumerated powers. Why on Earth do you think courts bother with arguments about where authority for a government action comes from, otherwise?
And, of course, The Federalist Papers and just about any other legitimate scholarship since then acknowledge that if the Constitution doesn’t permit government to do something, it can’t do it. That’s what the word unconstitutional is all about. The debate over whether we needed a Bill of Rights included arguments from opponents that the limited powers set out in the Constitution wouldn’t allow the federal government to violate all of those rights, anyway. Wrong, but less wrong if the courts weren’t practically rubber stamps to government overreaching.
If the individual mandate is thrown out, then it becomes perfectly legal to grow pot (or cook meth) in your house for personal consumption. Federal drug laws are based on the Commerce Clause.
This doesn’t mean that the drug cases or drug laws were correctly decided. It does mean that overturning the mandate overturns 80+ years of Constitutional law. That’s right up there with getting struck by lightning twice – possible but highly unlikely.
Carl said: “They would laugh at the notion that its supposed prohibitions are merely advisory.”
And they should, but I laugh (nicely) at you for thinking that the article is saying that. Reread the section you put in italics.
It does mean that overturning the mandate overturns 80+ years of Constitutional law. That’s right up there with getting struck by lightning twice – possible but highly unlikely.
I can see admin lawyers making that case to scotus now. “The mandate is constitutional! Otherwise people will start growing pot in their houses! And… lightning stuff!”
Rand’s right, you’re not used to actually having to defend your views.
If the individual mandate is thrown out, then it becomes perfectly legal to grow pot (or cook meth) in your house for personal consumption.
Oh nonsense. Judge Hudson was easily able to draw a line between Gonzales and the individual mandate. It didn’t even require any penumbrations or emanations, either. FWIW, however, I believe Gonzales (as well as Kelo and Wickard) were wrongly decided and represent an unholy precedent that deserves overturning no less than Dred Scott or Plessy.
The Supreme Court has established more stupid precedents requiring revision decades later than it has helpful and wise precedents that do not. As the ultimate arbiter of constitutionality, its record is appalling, which is why I think it should not be the unique arbiter of constitutionality.
Reread the section you put in italics.
No change in my impression on re-reading, Bob. What’s your — and the author’s — point? May I politely suggest that if the point is not clear, the writer might not be a good writer, or good arguer? Also that if he makes an absurd statement in the first few paras that grossly undermines his credibility, it’s not my ethical obligation to read all the way through to see if he recovers?
To be more specific — don’t confuse section 8 (the powers of Congress) with section 9 (the limitations on Congress), although of course Congress is limited beyond section 9 (such as the first amedment), section 8 gives it sweeping powers.
I will risk ridicule from those who know much more about the following subject than me: Take NASA as an example. Outer space and aeronautics aren’t mentioned in section 8, so is NASA legal? The general welfare clause permits it, right?
Ah, I see what you mean, Bob. I get the point. But let us not neglect this little tidbit at the end:
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
So, yes, the explicit list of things Congress can do in the preceding parts of Section 8 is not meant to be exhaustive, and I jumped to conclusions. You’re right. But the entirety of Section 8 makes it clear that if authority isn’t granted to Congress somewhere else in the Constitution, and not prohibited, then you can’t add a particular lawmaking power through this clause.
The general welfare clause allows for NASA, yes, but more importantly no other section of the Constitution prohibits it, since the operations of NASA do not impinge on anyone’s individual liberty.
But if government were to establish a special direct NASA sales tax to fund the agency, or require everyone to watch launches on TV on pain of a penalty on their 1040, then it would indeed become unconstitutional, regardless of the benefit such a thing might have for the general welfare.
As I read the constitution, congress has no authority to establish NASA. But NASA is one of the more benign extravagances of the federal government.
The Air Force space program, on the other hand, is reasonably covered by authorization for national defense.
I would argue NASA is necessary to promote commerce and if it were invalidated, a majority of its functions would have to be assumed by the DOD.
Curt and Carl – please tell me under what constitutional theory Congress has the right to regulate anything about drugs?
Hudson is making a false distinction. He’s claiming that failing to buy something isn’t an economic activity. Buying (or not buying) is by definition an economic activity.
The other problem with Hudson’s case is confusing when the “self-directed affirmative move” (pg 21 of the opinion) happens. The “self-directed affirmative move” is when the individual shows up at the emergency room, or takes advantage of the no-existing condtions clause of health insurance reform.
Unless the individual can affirmatively say they will never buy health insurance or show up at an emergency room, they’ve already entered the stream of commerce. The question isn’t whether, it’s when.
“Curt and Carl – please tell me under what constitutional theory Congress has the right to regulate anything about drugs”
Interstate commerce.
“regulate anything about drugs” is too broad.
Drugs intended for interstate sale hit even a strict interpretation of the commerce clause.
Drugs intended for military use are legitimate national defense even in the narrowest interpretations.
Drugs intended for self-defense (pepper spray) fall under the “new” Heller interpretation of bearing arms for self-defense under “Bearing arms” IMNSHO.
Drugs applied in prisons can’t be “cruel or unusual.”
Chris,
Every evening at 6:00 (and 7:00 and 8:00 and 9:00), I do not purchase a treadmill. Is that an economic activity that the Congress is permitted to regulate? After all, 1 hour of exercise on a treadmill would improve my cardio-health, and potentially lower my healthcare costs. I can not affirmatively say that I will never purchase a treadmill at some point in the future.
Hal – no, but you most certainly will purchase health care at some point in your life. Therefore, treadmill no, health care insurance yes.
Chris, how many times do you have to be told that “health care” != “health-care insurance”?
And why doesn’t this argument mean that the government can force you to buy “food insurance,” since you will most certainly purchase food at some point in your life?
He’s claiming that failing to buy something isn’t an economic activity. Buying (or not buying) is by definition an economic activity.
This is absurd. Buying is an economic activity. Not buying is not.
Hal, Congress could purchase a treadmill for every adult citizen of the United States, ship of them one to your home, and then tax you to pay for all those treadmills. But it might not pick out the same treadmill you would, so it gives you an option: you pick out the treadmill you want, and buy it. If you don’t, you won’t get the tax credit that treadmill buyers get.
Hudson is making a false distinction. He’s claiming that failing to buy something isn’t an economic activity. Buying (or not buying) is by definition an economic activity.
It doesn’t work that way. For example, I could fly to Hawaii and buy lots of touristy stuff. That is something that is partly regulated by government in various ways. That’s clearly an economic activity (plus one that crosses state lines).
What you are claiming is that anything else I choose to do in place of an economic activity is therefore an economic activity which can be regulated by government according to the commerce clause. If I sulk for that week in my pajamas, then that is an economic activity which can be regulated by government.
The other problem with Hudson’s case is confusing when the “self-directed affirmative move” (pg 21 of the opinion) happens. The “self-directed affirmative move” is when the individual shows up at the emergency room, or takes advantage of the no-existing condtions clause of health insurance reform.
Unless the individual can affirmatively say they will never buy health insurance or show up at an emergency room, they’ve already entered the stream of commerce. The question isn’t whether, it’s when.
This is the classic tragedy of the commons problem that occurs whenever government creates a public good. They either have to remove or perhaps reduce the extent of the public good, or impose limits on peoples’ freedom in order to preserve the public good from exploitation. If we either didn’t offer the public good, or didn’t care about how it is used/abused, then such observations as Chris has made would be irrelevant. It’s only when you offer a public good, then get upset over its abuse, that we have this sort of undemocratic nonsense going on.
Chris,
You said:
Then you said:
If the first statement is true, then the second statment is irrelevant, in that congress can require me to purchase any item for any reason whatsoever.
Karl, note that public goods supported solely by taxes (like Even More Evil Than Evil Itself ™ socialized medicine) also make Chris’ observations irrelevant. So no constitutional crisis, and problem solved, unless you think that taxation is undemocratic nonsense… …oh yeah, you do!
Hal, you don’t really get forced into buying something — you just get penalized financially, which is just like not getting a tax credit because you didn’t buy something. You didn’t buy a windmill, so you don’t get a tax credit. You didn’t buy health insurance, so you don’t get a tax credit.
(I actually think there is an evil lurking in the above argument, but in my current state of sleep deprivation, I can’t figure out what it is. Anyone want to suggest where the problem is?)
Asserting that “health care” != “health-care insurance” does not make it so. In a world where open heart surgery cost $37,600*, not having health insurance means either not getting health care or sticking somebody else with the bill.
Do you have $37,000 lying around? Do you really think you’ll be able to negotiate a bank loan to cover that surgery while you’re lying on a cot in the ER?
*That by the way is the negotiated price – what insurance companies were able to use volume pricing to get. The list price is $125,000.
I think the list price is more relevant.
In a world where open heart surgery cost $37,600*, not having health insurance means either not getting health care or sticking somebody else with the bill.
And if you don’t ever need open heart surgery, Obamacare will stick you with the bill anyway through the individual mandate. Now if you are 25 years old trying to purchase food for your wife and child; it will suck having to pay for Chris Gerrib’s open heart surgery, because he didn’t want to save his money in advance.
Open heart surgery didn’t exist at all, at any price, for the vast majority of human history. Neither kings nor commoners could get it no matter how badly they needed or wanted it.
Now that it does exist, albeit at a high price, all of a sudden it’s a basic human right, and anybody should be able to get it regardless of whether they can afford it or not.
That attitude is profoundly immature, and it tends to enslave doctors, nurses, and taxpayers to the needs of everyone else. It doesn’t seem to advance the cause of liberty.
The US legal system didn’t exist at all, at any price, for the vast majority of human history. Neither kings nor commoners could get it no matter how badly they needed or wanted it.
Now that it does exist, albeit at a high price, all of a sudden it’s a basic American right, and any American should be able to get it regardless of whether they can afford it or not.
That attitude is profoundly immature, and it tends to enslave judges, police officers, and taxpayers to the needs of everyone else. It doesn’t seem to advance the cause of liberty.
It’s impossible to argue with people like Bob-1 and Mr. Gerrib. They’re like the people in Russia who wish Stalin was alive. Freedom and thinking for oneself is too hard. If only there were some committee, some Illuminati or Overseers, to make everyone Do The Right Thing. The idea that people can figure out for themselves what to do with their own money/time/lives that they worked for is not exactly anathema to them — it’s incomprehensible.
Bob-1:
That’s the difference between negative and positive rights.
Negative rights say “the government may not do this to you”. Positive rights say “the government must do this for you”.
Negative rights do not obligate anybody to do anything, therefore they do not infringe on anyone’s liberty.
Positive rights obligate somebody, somewhere, to provide goods or services to others. Therefore they do infringe on the liberty of those so obligated.
Andrea, that’s nonsense. Do you believe in taxation or not? Do you believe in representative democracy, or do you prefer direct democracy, or do you prefer no democracy at all? If you believe in taxation and representative democracy, then should I conclude that you don’t believe people can figure out for themselves what to do with their money and their lives? If not, then your argument is nonsense.
rickl,
In the event that a impoverished person is accused of murder, the person is provided, at tax-payer expense, with all sorts of goods and services, starting with a defense lawyer and a judge and a whole expensive courtroom support staff, but certainly not stopping there. We believe society is obligated to provide these things, even when we are pretty darn sure the person is guilty. Does the accused have rights of a positive nature?
Bob-1,
Shall I do a version for food? cable TV? Air travel? Laptops? Is there any desired outcome the government shouldn’t guarantee with force?
You’ve picked an example which exists specifically to limit the power of government over the citizens. I think this is irony.
“Do you believe in taxation?”
I wasn’t aware that its existence was in doubt.
Bob-1:
The judge, courtroom, and staff exist to (ideally) provide equal justice under the law to everybody in society. They don’t exist just to serve the poor. That’s one of the proper functions of government, along with national defense.
I’ll grant you that the right of a destitute accused to a public defender is an example of a positive right. But public defenders tend to be the bottom of the barrel as lawyers go. You’d be better off hiring your own lawyer if at all possible.
The government (which is to say, we the people) attempts to guarantee lots of outcomes with force — the government (federal, state, and local) already buys enormous amounts of food, laptops, air travel, even space travel, and taxes us for it. It seems unconventional to say that we have a right to NASA, but in a sense, that’s what each year’s budget gives us — a legal right to one year of a national space program. There is nothing newsworthy about positive rights.
I disagree on the NASA as a positive right take. The existence of NASA does not come with a guarantee that I can be an astronaut, or even a lowly engineer. Your argument seems to reduce to “because government exists, everything government can do is a positive right” which just amounts to an end around the distinction of positive and negative rights.
The justice system is just a wrong analogy. The bill of rights gives specific requirements for it, and the public defender can easily be traced to the due process of law requirement. There is absolutely no comparable “noone will be deprived of surgery without due process of medicine” clause. The bill of rights explicitly establishes due process as a positive right. The constitution does not mention doctors.
Which is all tangential to the main point, right? Sure the government buys food so people don’t starve, just as it already buys health care for people who need help. But it doesn’t (yet) require that I buy a certain amount of the food it dictates in order to control the price of food, even if I, say, want to grow my own food.
Actually, I am beginning to think that many of the Federal drug laws are on flimsy Constitutional ground.
The horror, you say, that means laws against murder are unconstitutional. Well yes, if they are Federal laws. There are Federal laws against the murder of Federal poultry inspectors and the like, but by and large, murder, serious crime that it is, is a state jurisdictional concern. So should it be with laws against dangerous drugs, apart from trafficking across state lines.
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes
I can solve the whole problem with the removal of five words.
Is there anybody that really believes the framers meant the idiocy we have today? The government was meant to be limited; not become King of England Act 2. Frankly, we had some less regulation and restriction under the king.
I have some more reaction to Bob-1’s peculiar question: “Do you believe in taxation?” I began to see a scene from some sort of musical. You know, one of those mock-Worker’s Party plots with a lot of Fresh Young Things playing all determined and wearing leggings and black sweaters and scarves and drinking lots of coffee and red wine in smoky (this is set in a time when smoking indoors in front of people was allowed) jazz bars and everyone is moody and serious except when someone recites Marx or Rimbaud and then people cheer up, in that fake-Gallic sort of brooding activist way where everyone starts to smoke more and talk all at once.
Anyway I see this scene. It’s set in the coffee/jazz bar underground tavern place. An elderly vaguely European guy (with that world-weary amused air that American movie writers imagine elderly European intellectuals feel as he watches the fierce younger people being fierce about World Peace and The People and Fighting The Establishment and so on) is talking to the movie’s heroine, a young ingenue. I imagine she looks kind of like Liza Minelli only not so much like a female of the Clown Race but more human: short black hair, kind of a gamine face, skinny like Audrey Hepburn because let’s face it no one cares what fat female activists think or do, wearing one of those absurd berets, in very tight black leggings and flat shoes. Looks are important. Anyway, the intellectual asks her: “Do you believe in taxation?”
And she is filled with Light and Resolve! Flushed with animation, she jumps up on the café table, and trumpets: ” Do I believe in taxation? Do I believe in taxation!”
She begins to sing (softly at first, then louder and louder, Minelli-like; I haven’t seen Cabaret but I’ve seen bits of it):
Do I believe in the soft air of summer?
Do I believe in the fluffy fur of my kitten?
Do I believe in love in the eyes of little children?
Do I believe in love?
Louder:
Do I believe in demonstration?
Do I believe in agitation?
In no hesitation? In the need for salvation? In the coming restoration?
THEN I BELIEVE IN TAXATION!
Everyone jumps up and starts to dance and sing along:
Taxation… it takes from the rich and gives to the poor;
Taxation… it keeps the wolf of hunger from the poor man’s door;
Taxation! It means no one can have too much!
Taxation! It puts the meat in your child’s school lunch!
Taxation is a way — to make the rich man pay — and pay and pay and pay! Until his dying day!
The scene ends with everyone resolving to go down to the Rich Man’s House and dance until he feels so guilty he shuts down his pollution-causing plant where he overworks the workers for not enough pay and they all dance and sing. A week later everyone is starving because no one has a job, but that’s after our musical ends so who cares.
Jrman, while I agree with Rand on quite a bit having to do with NASA, I do get a lot out of it, sometimes despite itself. These days I benefit more from its astronomy programs and its unmanned planetary probes, but I hope to get more from the manned side of my nation’s space program in the future. I certainly get more than my money’s worth, and I wish more people felt that way (and had reason to). People don’t have to be an astronaut or any sort of NASA employee to get benefits from NASA — I firmly believe in Keith’s tagline at NasaWatch: “It’s YOUR space agency. Get involved. Take it back. Make it work – for YOU.”
So, if NASA was given my tax dollars and those tax dollars weren’t spent on providing me with my space program, I’d be furious. (In fact, that’s pretty much been the case with Constellation, and I am furious!) Once the national budget is passed, I have a right to a space program, and since NASA is obligated to provide me with that space program, it is a positive right. Nothing you’ve said explains to me why this isn’t a positive right as you defined it. And yes, that does seem to imply that all budgeted government services are positive rights, but I don’t see why that is significant.
Wow! Just saw Andrea’s comment. That was a lot of fun!
My god, the dance number just arranges itself… I see Command Central at JPL or whatever they call that place where all the nerds — I mean, all the skientists and things are watching the space shuttle on the monitor and monitoring and suddenly the Hero (a hunky dude disguised as a ner– scientist, in glasses and a short sleeved shirt and tie) runs in and tears off his specs, the better to announce dramatically:
“The Republicans have made Congress pass tax cuts! Now NASA doesn’t have the budget to land the space shuttle! The crew is trapped IN SPAAAACE!”
(I had to do that.)
Ahem. Anyway, the scene continues after he pauses dramatically, looking around at everyone without squinting because he actually didn’t need glasses, he just wore them so they would think he was smart instead of a brainless hunky himbo, and he says: “They’ve sold Patrick Air Force Base to a tourist agency. They’re building a Hilton, a Planet Hollywood, and a Ron Jon Surf Shop on the runway.”
The scene fades out on a softly sung mournful chorus: “No taxation… means no more Space Station…”
My comment right before the one right before this one is the result of me hitting the wrong key on this d**ned laptop. I blame the lack of support for Obamacare, which is clearly the only way to prevent bad things from happening.
Whoops I meant Kennedy Space Center, not Patrick Airforce Base. I blame my brain’s reluctance to remember the name “Kennedy.” Damn that MTV veejay! She ruined my life.
Andrea, may I suggest your next stanza include the Department of Education, grade inflation, and accreditation; with a rousing crescendo on desegregation!
Is the government required to have a NASA?
Is the government required to have a due process of law?
Is the government required to provide you with words to say?
The answers are not all the same.
If NASA didn’t provide those things – which I benefit from greatly, btw – but was instead a secret agency with no PR footprint other than knowledge of its existence – would it be unconstitutional?
If the government decided to stop “the due process of law”, do away with trial by jury, and take away the power to compel witnesses, would that be constitutional?
I can take away your “right” to NASA with my vote. The government does not have to provide it to you if 50%+1 of us don’t want it. We can’t do that with trial by jury.
I think these differences are significant, and these are why I think your retort using the US legal system is off target. Rickl is on the mark – this is about liberty and under what grounds the current text of the constitution says it can be taken.
That is, unless you or someone is arguing that health-care should be a positive right on par with due process. But even so – I’m not required to retain a lawyer just because there is a significant chance that I will commit a crime in the next week or so that warrants one (even though neither I nor anyone else will notice).
I think questions about what the constitution allows congress to do are on the mark, but I don’t see any deep philosophical distinction between an item in the budget and due process — both are just manifestations of the law. (Yes, due process could be stripped away via a constitutional amendment, a process which is thankfully quite cumbersome.) I think it is pretty clear that NASA is constitutional, and I also think socialized medicine would also be constitutional, in both cases, under the general welfare clause. This business of whether Congress can make you buy health insurance is interesting, but not that interesting, since on the one hand, congress could simply provide socialized medicine, and on the other hand, the 50 states can and do make you buy insurance. Even if you believe in enumerated congressional powers, you must admit that the 50 states have vastly more power to compel all sorts of behavior (as Jaredinero has pointed out.) In a pinch, the Congress could bribe the 50 states into mandating health insurance. And also consider the tax credit argument I suggested to Hal above — congress isn’t making you buy insurance – it is just imposing a financial penalty whichis equivalent to being denied a tax credit, and tax credits have non-controversially been going on for a long time.
Hm. I’ve got a title for the next song — a take-off on desegregation called “Glee-segregation!” I’ve got to work transvestites in there somewhere.
Gotta go. The Muse calls.