Ramesh discusses something that doesn’t get enough discussion:
The argument that has not been made (or at least not made often) is that the whole legislation — not just the individual mandate — exceeds the constitutional powers of the federal government. This classic conservative position has gone unvoiced. I suspect that it has done so because, again, of the influence of judicial supremacy. We have been trained to think that saying that an overhaul of American health care exceeds the legitimate powers of Congress is equivalent to calling for the judicial invalidation of health-care legislation (along with much of modern government, by implication). Since that would be absurd to call for, we don’t say it.
At the risk of being thought quixotic, let me suggest that we need to revive a dormant tradition of legislative reasoning and argument about the Constitution. In this kind of constitutional reasoning considerations that it would be improper for judges to invoke have their place.
What a concept. This is annoying, too:
…too many commentators have dwelt on the question of how the courts are likely to treat the legislation — or, at best, what they should do consistent with their precedents — rather than on the distinct question of whether the Constitution, properly interpreted, grants Congress the power to enact this legislation.
It’s partly because many of the commentariat don’t even understand the Constitution, nor care about it much, at least when it comes to the government running the economy. But it’s also a symptom of the simple-mindedness of the media. It’s like a political campaign where they report on the horse race — who’s ahead or behind — rather than what the candidates actually say about the issues, with an analysis of it. Yes, it’s not unimportant to speculate about how a court will rule, but it’s not as important as analyzing the actual legal and constitutional issues, but they’re either incapable of that, or uninterested.
“Are you serious?” said the lady on the Hill.
The fact is that if the Consitution was interpreted by it’s plain language, half of the Federal government would go *poof*. Whether you consider that a feature or bug, 99% of the population just isn’t going to like that sort o change. Especially when Medicare goes *poof*.
Only half?
I think the commentariat makes the assumption that if Social Security and Medicare passed constitutional muster, so will health care.
To Brock’s point – if you assume that the Federal government has only the powers listed in the Constitution, you have no FAA, no NASA, no FDA, etc. The idea that we’re could revert to a 19th century level of government doesn’t seem very probable, regardless of the merits of the idea.
Yes, but only because the SCOTUS is a permissive parent. The bills in Congress take new liberties.
Perhaps, but making the argument would almost certainly be more effective than not making the argument.
IMHO the modern day Federalists (that would be the Republicans, unfortunately) have been fighting on the wrong hill for decades. The problem with that, of course, is that while you cannot win the war there, you certainly can lose it.
If all this junk is Constitutional, then why did we have to pass an Amendment to tax income?
Big D – because the constitution originally said: “No Capitation, or other direct, Tax shall be laid, unless
in Proportion to the Census or Enumeration herein before
directed to be taken.” (Article 1 section 9).
So, find a clause that forbids government-provided health care and you can stop this bill in its tracks.
There is no constitutional justification, or precedent, to force citizens to purchase insurance, or anything else, simply because they are citizens. This will probably be the first legal line of attack if this monstrosity passes.
Indeed. Art 1, Sec 9 also prohibits bills of attainder.