We Live in Dark Times [CORRECTION IN TEXT]

A glance at today’s story headlines shows a constitutional crisis about to boil over, with President Barack Obama challenging the Supreme Court to uphold the Affordable Care Act, or remove any lingering doubt that five right-wing justices have turned SCOTUS into a body whose purpose is to rubber-stamp Republican political ideology.

Here is CBS News’s Jan Crawford on a federal appeals court’s angry response to the gauntlet Pres. Obama threw down:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

What Jan Crawford does not mention here is that the judicial right that 1803 ruling asserted — Marbury v. Madison — has only been invoked once since 1803., in many if not most of the instances in which the Supreme Court overturned federal laws passed by Congress, SCOTUS’s motives were blatantly political. Many of those rulings were themselves later overturned, or corrected via new legislation (i.e., the judicial overreach was corrected). An examination of a list at Congressional Quarterly Press of historically significant federal laws overturned by SCOTUS (thanks to raja in the comments section for providing the link to this list), reveals that many if not most of those judicial decisions were highly controversial even then — and certainly now are not decisions that most of us would want to emulate or use as examples of SCOTUS’s authority to overturn congressional legislation. Another way of saying this would be that, although SCOTUS does have the right to overturn federal laws, and has done so on numerous occasions, very few of those occasions have held up as constitutionally valid.

One such case, which caused a national uproar even at the time, was the Supreme Court’s decision in 1918 to overturn a law Congress had passed two years earlier that effectively ended child labor. If Republicans want to use that decision to argue that striking down a law passed by Congress would not be unprecedented, it certainly will do nothing to change the growing public view of the GOP as a party that means to take us backward to the most barbaric parts of our national history. Indeed, Andrew Koppelman ably addresses just that point in his detailed review of the history of that 1918 case, and its appalling repercussions, at The New Republic. Here is an extended quote:

It took decades for Congress to address the problem. When, at long last, federal legislation was passed, some people raised constitutional objections, but few took them seriously. The objections required the Supreme Court to adopt unheard-of constitutional theories, hamstringing well-established powers on the basis of hysterical fears about a tyrannical federal government. Even the law’s opponents were surprised when the Court took those objections very seriously. Some warned that the Court was overreaching, and that its intervention would seriously hurt large numbers of innocent people, but the Court thought it was more important to rein in Congress.

You might assume I’m talking about health care reform. I’m not. I’m talking about child labor””and a 1918 decision by the Supreme Court that history has not looked kindly upon.

The parallels between the child labor issue and the health care issue are remarkable. In both cases, the legislation in question was the product of a decades-long struggle. Universal health care has famously been a goal of American liberals since Theodore Roosevelt proposed it in 1912. The movement to abolish child labor, for its part, stretches back to the first years after the Civil War: When the Knights of Labor was founded in 1869, its constitution included a provision calling for abolition of child labor, and a similar position was adopted by the American Federation of Labor when it was created in 1886. The National Child Labor Committee was organized in 1904, and the first federal law was introduced in 1906. For his part, Roosevelt supported a national study of the problem.

Only the federal government could address the issue, since no state would act on its own. Even states that did not want child labor could not afford to get rid of it if their competitors still had it. Health care presents a similar problem: Any state that provides good medical care risks attracting sick people from other states. In both cases, unless Congress took action, the problem was going to stay unsolved. And so in 1916, Congress, using its power to regulate interstate commerce, banned the interstate shipment of the products of child labor. When it defended the law in Court, the government explained that this was an interstate problem: ”œThe shipment of child-made goods outside of one State directly induces similar employment of children in competing states.”

Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared””in tones reminiscent of the Broccoli Objection to Obamacare””that if it upheld the law ”œall freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be ”œpermissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor ”œare of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.

At The Daily Beast, David Dow suggests that overturning the Affordable Care Act would be such a serious overreach of the High Court’s powers under the Constitution that impeachment would be justified:

You think the idea is laughable? Thomas Jefferson disagreed with you.

Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Samuel Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.

The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.

Jennifer Granholm gives us a point of view on the health insurance mandate rarely heard from, and certainly not even on the radar of creepy creatures like Rick Santorum or Paul Ryan, or the five unelected SCOTUS justices who represent the same constituency as do Santorum and Ryan:

They tell it like it is at the beauty shop or barbershop.

I went for a haircut on Saturday. My hairdresser Carmelita and I got to talking about health care and the decision now in the hands of the Supreme Court.

”œDo you have health insurance?” I asked.

”œNo,” she said softly.

”œWhy not?”

”œAre you kidding? It’s just too expensive. No way can I afford it.”

”œWould you buy it if you could?”

”œOf course!” she said, her brow furrowed at the idiocy of the question. ”œI’m still paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”

And then she said something that turned the ”œindividual health care mandate” opponents’ argument on its head: ”œI’m already forced to buy health care ”“ but it’s in the emergency room. It’s almost bankrupting me. Do these guys think that’s my choice?”

A ”œhealth care mandate,” it seems, is in the eye of the beholder.

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Kathy Kattenburg

27 CommentsLeave a comment

  • a federal appeals court the authority to demand a statement of belief by the Justice Department in a case not before the appeals court? Is there some legal principle that I’m completely ignorant of?

  • The Supreme Court opines often about the constitutionality of laws. But you write:

    What Jan Crawford does not mention here is that the judicial right that 1803 ruling asserted — Marbury v. Madison — has only been invoked once since 1803.

    Could you expound or provide a link that might clarify that statement?

    (Or perhaps it’s just a mandamus order that’s been issued only once that’s being referred to – with Judicial Review itself being a separate concern).

  • SCOTUS has only once overturned a law that Congress had already passed. That’s what I meant. The right has existed since 1803, but it has only once been asserted in practice.

  • because it’s not true.

    The Supreme Court early in its history asserted the power to review laws passed by Congress and to invalidate any laws found to violate the Constitution. Over time the doctrine of judicial review has become an established part of the United States’s system of separation of powers. It serves as a constant reminder to Congress that the laws it passes will be measured against the provisions of the Constitution and nullified if found in conflict.

    While Congress has passed thousands of statutes over more than two centuries, the Court had exercised its power to rule laws or portions of laws unconstitutional only about 150 times by the early 2000s. The congressional statutes invalidated have included many relatively minor laws, but also such major enactments as the Missouri Compromise, a federal income tax, child labor laws, New Deal economic recovery acts, the post-Watergate campaign finance law, statutes to curb pornography on the Internet, efforts to allow victims of gender-motivated violence to sue their attackers in federal court for compensatory damages, amendments to a landmark age discrimination law, and the line-item veto.

    The Court invalidated only two statutes before the end of the Civil War. But as Congress broadened the scope of federal regulation in the late nineteenth century, the number of federal laws declared unconstitutional increased. Dominated by economic conservatives, the Court often blocked laws Congress enacted to protect workers and consumers. The conflicts peaked from 1918 to 1936. The Court threw out twenty-nine laws during that period, including several statutes of President Franklin D. Roosevelt’s New Deal program.

    Roosevelt changed the Court’s ideological composition during his second and third terms, appointing justices who supported broad federal powers in economic affairs while taking a more expansive view of civil liberties. In succeeding decades, the Court often used its power to strike down laws as infringements of individual freedoms, in particular freedom of speech. Under Chief Justice William H. Rehnquist, the Court in the 1990s continued to invoke the First Amendment to strike down some laws passed by Congress. At the same time, the Court also took a stricter view of congressional powers vis-a-vis the states, nullifying several laws on grounds they infringed states’ rights.

    A listing of major laws declared unconstitutional at the link.

  • I don’t see a demand so much as a friendly request from one branch to the other. (Though the panel is very strict).

    As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.

    Via ScotusBlog: Judges challenge Obama view.

  • The whole idea that this was an overwhelming majority of the elected officials is nonsense. It barely passed.

    The congress does not have the power to compel me buy something. It’s absurd. This is an absolutely absurd law that needs to be struck down by the supreme court.

  • USA Today has this fact checking article: Fact check: Obama’s Supreme Court remarks. Certainly the law didn’t overwhelmingly pass. It was 219-212.

    What could he have been thinking by threatening the Supreme Court? As Thomas C. Goldstein, founder of SCOTUSblog, remarked on The Daily Show yesterday, it’s only likely to get the Justice’s backs up. He can hardly think that he would sway the justices to his position. Apparently an attempt to curry favor with conservative voters. No doubt, that’ll work.

    The Daily Show with Jon Stewart Mon – Thurs 11p / 10c
    Tom Goldstein
    http://www.thedailyshow.com
    Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook
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  • Mattyb719 wrote “The congress does not have the power to compel me buy something. It’s absurd.”

    They already been there, somehow they compel me to pay an authorized e-file provider or buy tax preparation software either over-the-counter or online to file federal taxes electronically.

  • I filed for free last year. It’s a choice even if you pay for it. Paying money to a software company like turbo tax isn’t mandated. If you choose to pay a company to do your return, be it in person or via software, it’s still a choice.

  • raja,

    You are correct, and I apologize for the error. What is correct to say is that, in many if not most of the instances in which the Supreme Court overturned federal laws passed by Congress, SCOTUS’s motives were blatantly political and did not reflect legitimate constitutional principles. Many of those rulings were themselves later overturned, or corrected via new legislation (i.e., the judicial overreach was corrected). An examination of the list you provided (and thank you for providing it), reveals that a very large number of those judicial decisions were even then seen as proceeding from ignoble motives, and certainly now are seen as not being decisions that anyone would want to emulate or use as examples of SCOTUS’s authority to overturn congressional legislation. Another way of saying this would be that, although SCOTUS does have the right to overturn federal laws, and has done so on numerous occasions, very few of those occasions have held up as constitutionally valid.

    I will be rewriting the relevant section of my post with appropriate strike-outs; look for it, and thank you for pointing out my error.

  • and you do so every single day of your life, from your share of the highway system to your share of the common defense, including tons of programs you’d probably immediately discontinue paying for if you had a line item veto. Why the raised hackles at the word “buy”? Is this something I’d understand better if I were raised under the same system of indoctrination?


    “The best-informed man is not necessarily the wisest. Indeed there is a danger that precisely in the multiplicity of his knowledge he will lose sight of what is essential.”

    – Dietrich Bonhoeffer

  • Your “choice” not to buy health insurance because you’re young and healthy forces everyone else to pay more for their health insurance because only older and sicker people are using the health care services. Eventually, you *will* get sick and you *will* need health care, but because you did not pay into the system when you were healthy, you’ll have to pay a fortune for health insurance, or end up in the e.r., which costs taxpayers and everyone who has to pay health insurance premiums a fortune. Do you think that’s fair?

    If we could single you out, and just have you pay a fortune for your health insurance, or have you pay a fortune to be treated in the e.r., it would be fine for the rest of us, but the health care market doesn’t work that way. Because you’re not the only young and healthy person who doesn’t want to pay for health insurance when it’s less expensive, and thus makes everyone else pay more when it’s most expensive.

  • One of the best ways to deal with a corrupt industry is to interpret it as damaged and route around it. Part of the reason lots of people decline to have insurance is because insurance companies are basically psycho filing cabinets run by greedy lunatics skilled in extortion. Hence, avoiding entering into any commercial arrangement with them is one of few prudent options available. If you choose the imprudent option, suddenly you are on the hook & vulnerable to vultures in all kinds of other ways. If the federal government forces the imprudent option upon you, that’s outside the scope of its powers.

    When they are all split into a thousand pieces and cast to the wind, then I’d reconsider the merits of buying insurance on the market.

    Hongpong.com

  • The best way to avoid all these imprudencies, hongpong, is to have single-payer. But we don’t, and the Affordable Care Act is the best we could get with Republicans opposing everything Democrats put forward. Requiring everyone to have health insurance is the only way to increase access and lower costs for everyone. And it’s not unconstitutional.

  • The notion that a Congress with the largest Democratic majority in a generation and a Democratic President could not adopt a policy with over 60% popular support because the Republican minority would stop them remains ludicrous. That’s why the administration made commitments in private meetings with the medical and insurance companies before unveiling them to the public.

    There is a difference between a program run for the public good and a requirement to buy a product from a for-profit business, especially when the business in most areas is a monopoly. The problem isn’t the requirement for public participation in a public health system; it’s the adoption of tax farming.

  • “There is a difference between a program run for the public good and a requirement to buy a product from a for-profit business. …”

    You mean like the difference between cars and health care? I agree; there is a difference between choosing to own a car and choosing to be healthy and not get sick, or choosing to remain young and not get old.

  • That’s not what I mean. It’s the difference between mercenaries and soldiers. The things you say are different — I agree they’re different, but they have nothing to do with what I said.

  • to dig into your pockets to pay for stuff. What’s the sticking point here? The word “buy”?

    Use small words and make this non-American understand. Why is this three letter word the difference between a rank betrayal of the American Constitution and the normal everyday function of every government in the world?


    “The best-informed man is not necessarily the wisest. Indeed there is a danger that precisely in the multiplicity of his knowledge he will lose sight of what is essential.”

    – Dietrich Bonhoeffer

  • Then, it uses that money to pay for stuff.

    Opponents of the ACA argue that the Federal government can not force individuals to purchase goods or services from anybody.

    From this dKos article [“Supreme Court, Affordable Care Act: Is the mandate constitutional?“] we learn that the states opposing the ACA want the court to recognize the difference between regulating commerce and compelling commerce:

    The Constitution grants Congress the power to regulate commerce, not the power to compel individuals to enter into commerce. That distinction is fundamental. A power to regulate existing commercial intercourse is precisely what the framers sought to confer upon the new federal government. The power to compel individuals to enter commerce, by contrast, smacks of the police power, which the framers reserved to the States.[…] If Congress not only can regulate individuals once they decide to enter into commerce, but can compel them to enter commerce in the first place, then there is nothing left of the principle that Congress’ powers “are defined, and limited,” Marbury v. Madison, 5 U.S. 137, 176 (1803), as Congress could simply force within its regulatory reach all those who would remain outside it.

  • something that they don’t want. It’s a form of mob rule, of utilitarianism.

    As my John Bircher brethren are wont to say, we live in a Republic, not a pure Democracy, so we have individual rights, in our case those laid out in the Constitution. Under that Constitution, the Federal government can regulate commerce, but nowhere in that document does it warrant that a person must engage in commerce.

    The answer, of course, is for the government to set up a National Health Service, increase taxes to pay for it, and offer coverage for free to anyone who wants to avail themselves of it.

  • God damn if I don’t agree with you for once Raja :)

    The government can seize my money, which some would argue has gone way beyond the bounds of what the federal government should be doing in our current situation, but once that money leaves my hands I have no say.

    This is different entirely. This is the government telling me I must buy a consumer product. It’s not the same as roads, or education, or anything else that my taxes might pay for.

    Seize the money and pay for universal health care. Okay. I don’t like the idea, but it would at least be constitutional.

  • So does that mean that at some point the asshats that smoke can get one of my lungs too since my lungs are young and healthy? Essentially what you’re saying is that the old and infirm should feed upon the life force of the young and healthy. My deciding not to pay for something I don’t need at 18 years old or 20 years old is somehow wrong and the old and infirm should be able to suck some of that youthful vitality out of me. How very Bram Stoker of you.

    When you take money from me, or anybody else, you’re essentially saying that you’re entitled to part of my life. I WORK to make money and I spend hours of my LIFE making that money. Why is anybody entitled to part of MY LIFE? Why is somebody that doesn’t know me better able to decide how my money is spent than I am? It’s not even real to them anymore. None of them understand what a real person feels. What you’re saying Kathy is that you should be able to take life from me and give it to somebody else. You don’t find that disgusting? Don’t you feel that encapsulating the word “choice” in quotation marks makes it look dirty? Perhaps that was the intent. It’s dirty to choose not to buy something you don’t need. Perhaps the next president can compel you to buy a giraffe. It would only be fair because some people don’t have them and if you’re forced to buy one, at an inflated rate, then we can give them to everyone.

    I love donating to good causes. I’ve given plenty of money to help people out. I’m delighted that some of my money goes to helping the disabled, the indigent, and the under-privileged. The difference is when I give money to somebody I do it because I see that they need it. I can’t put it on my tax return and I can’t brag about how much I give. If I had enough money to last me until the day I died then I’d probably spend the better part of the next 30 years putting my hands to good and honest volunteer work. When the government gives something away it’s usually to help garner power. That’s become the thing politicians do. Our government is so corrupt, just rotten to the core, I don’t know how anybody can think that they will somehow be a bastion of morality when it comes to delivering health care.

    If you asked me for a kidney Kathy I’d probably give it to you. If you walk into my house and demanded it at the point of a gun, which is essentially what federal mandates do, then I’d say that I hope you’d get MRSA from it.

    The people, unlike the typical “poster children” the left likes to prop up, who really suffer from lack of health insurance are people that are working and paying taxes. If you have no income and nothing to lose you can walk into any emergency room and get treated. It’s the people that work hard and act responsibly that get screwed under the current system.

    If you want to pay for healthcare for all Americans then I propose this. Every person who collects money from the government and doesn’t pay into it, in spite of having no disability, is put to work. Obama has mentioned stimulating the economy through paying for infrastructure improvements. I say we’re already paying more than enough to improve our infrastructure. We’ve been paying more than enough. The problem is politicians have spent our money on staying in office through favors to their allies. Put the people who are sucking the working people dry to work improving our country.

    Enough is enough. We see the evidence now of what happens when the central government of a country decides to take over everything. We see what happens when more people are getting checks from the government than paying taxes to the government. Look east. They all want free healthcare too. They’re now rioting in the streets, as their countries go bankrupt, because they still want to suckle up on the teat of government.

    :) dang… I got more fired up than I usually do there.

  • Pretty good reply from your end of the spectrum and there is much that you say that I agree with. I happen to agree that the mandate is ugly but primarily because it forces us into a kind of slavery (the kind you write about) to corporations.

    You must agree, however, that there are certain things that require that we, individually, give it up to the commonweal. Sometimes we are asked to do that when our country is actually attacked and we need to go to war. Sometimes there are projects that need to be accomplished that require us to give it up to an entity that (at least in theory) represents us broadly, highways and tunnels and bridges and railroads (our private ones would never have happened without large government subsidies in one form or another.

    I think you would agree with the proposition that we can’t or shouldn’t simply let people die because of their poverty or relative lack of wealth despite spending (I mean that literally) a significant part of their lives working for others. Once we agree on that it is inevitable that health care should be viewed as one of those few (and they should in fact be relatively few) things that we are willing to give it up for. There can be no other choice then than single payer, with us being vigilant as citizens to make sure that our government does it right. That’s the problem with fascism where government gives its powers to corporations that are essentially not beholden to anyone but their management (and secondarily their shareholders).

  • Is the individual mandate really the hill progressives want to die on?

    Ian Welsh, April 2

    Really?

    The individual mandate is lousy policy. It always was. It is especially lousy policy without a large (100 million +) public option. The health care plan is, for all intents and purposes, a 90′s Heritage plan.

    This? This is what progressives want to fight for?

    BMaz [below] has a good article up on whether the bill is Constitutional. Me, I don’t know if it’s Constitutional. But what I do know is that if I were a conservative Justice, I’d want to just strike down the individual mandate and leave the rest in place, because I would laugh myself sick every night watching Obama have to kill the bill himself, getting rid of guaranteed issue, community ratings, and so on. Because Obama would have to, and would. He made a deal with the health insurance companies. In exchange for some concessions, what they received in exchange was every American being forced to buy their shitty product. And while Obama doesn’t keep promises to left wingers, he does keep promises to people like the CEOs of health insurance companies.


    Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

    EmptyWheel.net, By bmaz, April 1

    The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

    Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

    Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

    Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

    I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

    Despite the grumbling of so many commentators that the law was clear cut, and definitively established in favor of the mandate, it wasn’t, and isn’t. And I was not the only one on the left who found the challenging arguments serious, Professor Jonathan Turley did as well (see here and here).

    […]

    Simply put, the the question is, if the federal government can, via the Article I Congressional authority, stretch the reach of the Commerce Clause to every individual in the US, willing or not, as they did in the “ACA Individual Mandate” is there any power over the individual and/or the states, that is still out of bounds? Are there any limitations left on the ability of the federal to consume individual determination? What the Supreme Court looks for in such an inquiry are “limiting principles” that could constrain the power in the future. Another term of art used in the law is, is there any way to “cabin”, i.e. constrain, the power?

    In addition to the preview post, I also asked colleagues on Twitter (here and here) to describe proper concepts that would accomplish the goal. For over a day, until the reality that – gasp – this was also the concern of the justices, there was literally no discernible response. Once that reality, forced by the Court, set in however, attempts came fast and furious. Nearly all were rationalizations for why the ACA/mandate was necessary and/or desirable, but were not actual limiting principles.


    Individual Mandates and Unraveling the Great Society

    FDL, By Jon Walker, March 29

    If Conservatives get their way and the Supreme Court strikes down the individual mandate to buy health insurance, it would be a real victory for them; but in the end, the last laugh may be with actual progressives. While in this case an individual mandate was used to expand health coverage, similar individual mandates are the cornerstone for corporatist plans to unravel the public social insurance systems created by the New Deal/Great Society.

    The basic subsidies, exchanges and individual mandate design that defines the ACA are at the heart of many corporatists’ attempts to destroy/privatizes the programs progressives support the most.


    Sterling Newberry: The rich are getting richer. Liberals demand we send them money every month

  • You have some good points. I don’t think anybody should die due to poverty. I believe that there is plenty of infrastructure that simply must be maintained by government.

    The problem with single payer is that at some point there is somebody making a decision, a decision that may impact my life in a very significant way, that has a stake in keeping more money in the government coffers to pay for favors. It’s no different than my disgust at the whole idea of Obamacare. The same kind of “unelected group of people” that may decide the legality of the mandate are the same kind who would be dictating policy under that plan. There are plenty of posts where I state various issues I have with the plan. I’m probably one of the few people unfortunate enough to have waded through a fair portion of the plan. This plan could also become disastrous under a social conservative. The way the plan looks to me is that a right wing evangelical type, like Santorum, could essentially ban abortions through defunding them via an evangelical surgeon general (I’m not sure what the title was under the plan, but it pretty much put that power into the hands of a single person with no legal recourse for those who might oppose policy).

    I simply can’t have faith in the process at this point. People are not going to be vigilant. The people are going to latch on to whatever the media feeds them. We literally have more people getting subsidies from the government than we have paying into the government at this point. As the former group grows the latter group will become more and more burdened by the need for more resources.

    A system that depends on increasing resources in a finite world will eventually collapse. No different than remedial biology. Dollars, or any other resource, can only keep up with a certain demand. Every dollar is a drop of sweat from somebodies brow. At some point there will be more sweat than dollars and the system will collapse. Given the fact that government spends money less efficiently that just about any other entity feeding the government coffers only speeds our approach to the collapse.

  • A problem with our current system is that at some point somebody is making a decision that affects lives in a very significant way – and those people work for for-profit insurance companies. Those people have an even greater incentive to not pay medical claims than would the government, which can, after all, print money to pay medical claims.

    The government also does not have to earn a profit.

    Additionally, insurance companies have overhead to pay for that a single-payer system would not. I’ve read estimates that we could save up to 1/3 off of the current cost by going to a single-payer system – and keep quality the same.

    I hear people maintain that we’ll lose our 1st-class medical system if the government is paying the freight, but the truth is that the government already funds much of the medical research that goes on in this country.

    There are certainly dangers in going to a single-payer system, such as politicization, thanks for pointing them out.

  • I thought of that on the way home from work today. I agree with you AGAIN Raja! Nice to be on the same side of the fence with somebody after so many times not agreeing.

    It occurred to me that the bastards at the insurance companies are also going to try to deny every claim possible to keep their accounting in the black. You’re right. I still maintain that a single appointee for making those decisions is a bad idea, but insurance is a scam too no matter how you cut it.

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