ACA (a.k.a. Obamacare) Upheld

[fskimospy]

Seems like you just explained why the Militia Act was constitutional and different from the Obamacare mandate. Good job. :thumbsup:

Nope I sure didn't, you're just arguing in circles now. You have been defending a claim that people had an individual right not to be forced to purchase things. Congress has a number of enumerated powers. The constitutionality of actions require that action to be 1.) within Congress' powers and 2.) not something prohibited to it.

You made a claim that Congress was prohibited from forcing people to buy things. Now you appear to accept that this is not the case. Are you finally willing to admit that such a claim was wrong or are you going to continue flailing around?

 

[nehalem256]

Nope I sure didn't, you're just arguing in circles now. You have been defending a claim that people had an individual right not to be forced to purchase things. Congress has a number of enumerated powers. The constitutionality of actions require that action to be 1.) within Congress' powers and 2.) not something prohibited to it.

You made a claim that Congress was prohibited from forcing people to buy things. Now you appear to accept that this is not the case. Are you finally willing to admit that such a claim was wrong or are you going to continue flailing around?

In general they are.

But as you pointed there would be an exception in relation to "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States".

 

[fskimospy]

In general they are.

But as you pointed there would be an exception in relation to "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States".

This is a very odd legal argument you're making. Can you explain it more thoroughly?

Why are they generally prohibited?

Why is the organizing/arming/etc of the militia an exception?

What are you basing this on?

For all these questions please be extremely specific. Cite sources if you have them.

 

[nehalem256]

Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

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, or in any Department or Officer thereof.

This is a very odd legal argument you're making. Can you explain it more thoroughly?

Why are they generally prohibited?

Because congress has no general power to mandate people purchase goods. See listed powers above.

Why is the organizing/arming/etc of the militia an exception?

What are you basing this on?

Because organization and arming of the militia is a specifically established power. See bolded above. Requiring armaments would seem to reasonable fall under that.

 

[Charles Kozierok]

But I thought this was exactly the plan liberals accuse Republicans of having.

I think what you mean is most LIBERALS in society are not okay with that plan.

Are you calling Ronald Reagan a liberal? Because he's the one who signed the law requiring emergency rooms to treat all comers.

 

[fskimospy]

Because congress has no general power to mandate people purchase goods. See listed powers above.

That is not what is being argued, you are once again going in circles. The argument is that people have a specific right to NOT purchase goods, not that Congress lacks a power to force them to.

Because organization and arming of the militia is a specifically established power. See bolded above. Requiring armaments would seem to reasonable fall under that.

Irrelevant. It is not being argued that Congress has the power under the militia clause, that's already established. It's against a generalized right not to be forced to purchase things. Do you even know what you're arguing about anymore? As was mentioned to Fern when he tried to make the same argument, there is no enumerated power to stop child porn, but that doesn't mean all Americans have an individualized right to child porn. It seems to me that your issue is that you just don't understand how the Constitution works. Not only was that pretty obvious from your various shifting justifications for why the militia clause was okay, but the basic source of your arguments is baffling.

Once again I'll ask you for a single credible legal source to back up what you're saying. Just one.

 

[nehalem256]

Are you calling Ronald Reagan a liberal? Because he's the one who signed the law requiring emergency rooms to treat all comers.

Well Barack Obama called him a socialist. Takes one to know one I guess :sneaky:

 

[nehalem256]

That is not what is being argued, you are once again going in circles. The argument is that people have a specific right to NOT purchase goods, not that Congress lacks a power to force them to.

Its not a specific right. Its an inherent right. Just like Congress could not pass a law against eating.

Irrelevant. It is not being argued that Congress has the power under the militia clause, that's already established. It's against a generalized right not to be forced to purchase things. Do you even know what you're arguing about anymore? As was mentioned to Fern when he tried to make the same argument, there is no enumerated power to stop child porn, but that doesn't mean all Americans have an individualized right to child porn.

Child porn could be regulated under the commerce clause. The ACA mandate was specifically not considered commerce.

 

[fskimospy]

Its not a specific right. Its an inherent right. Just like Congress could not pass a law against eating.

Now we're getting somewhere. Where are you getting the idea that it is an inherent right? All things not mentioned in as enumerated powers are inherent rights.

Child porn could be regulated under the commerce clause. The ACA mandate was specifically not considered commerce.

We aren't talking about whether or not the ACA mandate was considered commerce, how many times do you need to be told the exact same thing? We are discussing the existence of a positive right not to be forced to buy things. That right would exist regardless of what form the commerce clause takes. You keep trying to stray off topic but I'm going to keep pushing you back.

 

[Charles Kozierok]

Well Barack Obama called him a socialist. Takes one to know one I guess :sneaky:

Compared to the radical assholes that constitute the current Republican Party, he probably was.

But that's a diversion. The reality is that it's not just liberals who blanch at the idea of people dying on the steps of a hospital.

 

[nehalem256]

Now we're getting somewhere. Where are you getting the idea that it is an inherent right? All things not mentioned in as enumerated powers are inherent rights.

Yes, that is what I said 4 days ago

So you do not think their is not an inherent right to have the government not force you to purchase things?

 

[fskimospy]

Yes, that is what I said 4 days ago

Yeap, and that's what we've been discussing. I keep asking you for a single shred of proof that such a thing exists and you continue to fail to provide one. You keep going around in circles desperately trying to avoid being wrong. What are you, cybrsage's brother?

Until you can provide some backup from a credible source for your claim I won't be responding anymore. Feel free to provide any evidence for your position at your leisure.

 

[Fern]

@Fern: Here you go. It's in page 35 of Justice Ginsberg's opinion.



Now, I have to express a disappointment with how you engage in the argument. At first you said:

Originally Posted by Fern View Post
The answer is in the title.

The point wasn't to force people to purchase weapons. The point was to raise a militia: A power of Congress/federal govt plainly enumerated in the Constitution.

Has absolutely nothing to do with Obamacare and its mandate.

I stand firmly by that remark.

It is unsupportable to make a blanket statement that the federal govt has no power to make you own (or purchase) anything. Does anybody really argue that the FAA (an arm of the fed govt) can't compel commercial airlines, or even private aircraft, to own/purchase certain equipment they consider necessary for safe flight?

It is equally unsupportable to claim that because it could in one instance over there, they can freely do so over here.

It's not just a simple question of whether or not they can compel action/ownership, but much more important is the question of 'how or why'.

In the case of requiring possession of guns, it was for the militia power plainly granted in the Constitution. Do you really have a militia power if you're limited to sending unarmed men into battle?

That is why the Militia Act and the Obamacare mandate are to be distinguished. We are still searching for a Constitutional basis for compelling the ownership/purchase of HI. Robert's decision did not do that. He stepped around it with his tax argument. Some argue it is the same result in a practical sense, and while that may be so it does not define a power to compel ownership or purchase, merely a power to tax. Those are two different things.

Then when it became obvious that there was some similarity between them, you stated:

Originally Posted by Fern View Post
The 2nd Militia Act of 1792 was never brought before the SCOTUS (or any court that I can find for that matter) so we don't know if it was Constitutional or not.

Of course no one questioned its constitutionality. It's in the Constitution and it's one that's cherished by many conservatives. (read: the 2nd amendment, "well-regulated militia")

The power to raise a militia (army, whatever) is in the Constitution. The power to compel the ownership/purchase of guns is not explicitly stated. Accordingly, it could be contested. There were other means (the direct and indirect taxes existing at that time) available to the federal government to arm militia members. Accordingly, if would have been perfectly reasonable to contest it.

However, and IMO the importance of this cannot be overstated, we really didn't have a SCOTUS at the time of the militia act, not anything we would recognize as one anyway. Madison v. Marbury did not come along until another 10 yrs or so.

Then your final resort is ambivalence:

Originally Posted by Fern View Post
My argument is that it cannot automatically be assumed Constitutional because the question was never raised.

If you keep moving the goal post, it becomes impossible to have a meaningful discussion. That also contributes to discounting the rest of your arguments.

There is no ambivalence.

If something is to be cited as precedence in a Constitutional issue it needs to have been ruled as Constitutional by the SCOTUS. To point to something and claim it is similar and say 'hey look, nobody complained then" is not how precedence is generally done. Instead you would point to it and cite which SCOTUS case ruled it's Constitutionality. We simply don't have that with the militia act example.

Fern

 

[Fern]

For something to be considered constitutional it must be litigated? That's completely absurd and you know it. That means that it's just impossible to know if thousands if not millions of completely uncontroversial laws are constitutional because they've never come before the USSC. Absolute silliness. Constitutionality is assumed unless a law is struck down. That's why when a law is passed people follow it until told otherwise.

For it to be used as precedent, yes it should have been confirmed as Constitutional.

Well I'm sorry that you don't equate Congress mandating people buy one thing with Congress mandating people buy another thing. That's your problem though, not mine.

Explained in above post.

It is explicitly mentioned in some of the USSC opinions. Presumably you will now view this as a powerful indication that the justices see relevance to this as well, correct?

Relevance how? Depends on the context. It certainly isn't relevant under the majority (Robert's really) opinion.

By your logic the Bill of Rights would be entirely unnecessary, as the power to restrict speech, the ownership of firearms, etc is not enumerated in the Constitution. I'm going to take a wild stab here and say that you do not support the elimination of the Bill of Rights for being redundant.

What's amazing about such a declaration is the sort of completely insane things it would lead to. Since Congress has no enumerated powers to limit the distribution of child pornography that must mean that the people have an affirmative right to child porn. Who knew? (Chris Hansen is going to be so mad!)

Oh and by the way, the right to vote is not in the Constitution.

Most of that is just silly.

As to why the rights of individuals are in there; yes, the FF knew it was a bit redundant but felt they were so important they were worth repeating.

See the 19th Amendment:

Amendment XIX

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Fern

 

[nehalem256]

Yeap, and that's what we've been discussing. I keep asking you for a single shred of proof that such a thing exists and you continue to fail to provide one. You keep going around in circles desperately trying to avoid being wrong. What are you, cybrsage's brother?

Until you can provide some backup from a credible source for your claim I won't be responding anymore. Feel free to provide any evidence for your position at your leisure.

The right to not be forced to purchase goods is so obvious and inherent there is no case law on it, because with the exception of a 200 year old never enforced law the government never did it.

Although Scalia did bring up other examples of equivalent laws the government could pass if ACA was upheld, such as law to compel to purchase of broccoli.

http://www.thedailybeast.com/articl...ot-fox-news-during-health-care-arguments.html

So I guess according to you Scalia's fears are justified.

And to quote you:

Oh and by the way, the right to vote is not in the Constitution.

Which means states are free to pass any law denying the right to vote so long as it is not based on sex, race, or age(>18).

But hey why am I complaining? There is now clearly established precedence for an abortion mandate.

 

[lopri]

The wiki article nehalem256 linked to in the post #1036 got me thinking. Perhaps it wasn't nehalem256's intention, but nontheless something hit me in the brain.

Roberts suffered a seizure on July 30, 2007, while at his vacation home on Hupper Island off the village of Port Clyde in St. George, Maine.[50][51] As a result of the seizure he fell five to ten feet on a dock near his house but suffered only minor scrapes.[50] He was taken by private boat to the mainland[51] (which is several hundred yards from the island) and then by ambulance to Penobscot Bay Medical Center in Rockport, where he stayed overnight, according to Supreme Court spokesperson Kathy Arberg.[52] Doctors called the incident a benign idiopathic seizure, which means there was no identifiable physiological cause.[50][51][53][54]

http://en.wikipedia.org/wiki/John_Roberts#Health

I don't think this has anything to do with Roberts' legal analysis on the ACA's constitutionality, but maybe, just maybe, this might help understand some others why sometimes "empathy" matters in judging. Consciously or unconsciously.

Roberts was in a vacation. Maybe he was reading, thinking, or tanning (who knows? He's a good looking person). Maybe he was walking fresh wind. Maybe he was alone. Maybe he was wearing bathing suit with no drivers license. Then he blacked out. Maybe he fell on a deck. Maybe he fell in the water.

In the ideal world of Scalia's constitutional vision revealed in the ACA litigation (his constitutional visions are, well, circumstantial, to say the least), Roberts might have been dead. No one would bothered to help him out when he fell. It's not your business, anyway. Hospitals would have refused to treat him without being paid ahead or at least peeking in his bank account. But alas, poor Roberts was just lying there half-naked with no ID. When he's left to die, some strangers would come along to take his "freshly-dead" body parts.

"Tough luck," Justice Scalia would say. "Just let him die."

 

[lopri]

Follow up's on the SCOTUS leaks:

A moderate's point of view: The “narrative” of judicial intrigue

A conservative's point of view: Who Leaked?

A liberal's point of view: Did Roberts Flip On The Health Care Decision?



The factual premise is common: That 4 conservative justices played politics outside the court in order to pressure Roberts, then when everything failed they resorted to personal attack after the decision was released. (Roberts turned "wobbly.") I mean, I've always thought John Roberts was too authoritarian and too manipulative, but coming out of this whole mess he looks almost like an angel compared to the reactionary 4.

 

[Fern]

Follow up's on the SCOTUS leaks:

A moderate's point of view: The “narrative” of judicial intrigue

A conservative's point of view: Who Leaked?

A liberal's point of view: Did Roberts Flip On The Health Care Decision?



The factual premise is common: That 4 conservative justices played politics outside the court in order to pressure Roberts, then when everything failed they resorted to personal attack after the decision was released. (Roberts turned "wobbly.") I mean, I've always thought John Roberts was too authoritarian and too manipulative, but coming out of this whole mess he looks almost like an angel compared to the reactionary 4.

You've made this claim before, yet there is no reliable evidence for it that I have seen.

All the articles make it perfectly clear that no one has knowledge of who the 2 sources of leaks are (other than the journalist, and she isn't saying). You seem be certain the sources are 2 conservative justices. If so, why? Based upon what?

And why do accuse 4 when the articles all indicate only 2?

You also seem to be claiming that these justices unfairly resorted to politics "outside" the court to influence his decision. That is also contrary to the articles: The leaks came only AFTER the decision. I assume the "outside" part refers to the leaks because I have seen nothing else about pressuring aside from what I assume are normal actions where they try to persuade each other before issuing an opinion. (Note: I did not read the conservative article you linked, only the moderate and liberal articles.)

I have not seen any article where it was claimed that the 4 conservative justices reached outside the court to create pressure on Roberts before the ruling was settled. Is it in the conservative article?

Am I understanding your accusations correctly?

Fern

 

[lopri]

You are right. We don't know how many justices are involved. I stand corrected. I will get back to you with the rest of circumstantial evidences on leaks before and after the announcement of the decision. (The forum and I am going to bed shortly)

 

[cybrsage]

You made a claim that Congress was prohibited from forcing people to buy things..

They cannot use the commerce clause to force you to buy things.

 

[cybrsage]

An easy to see example of an Unconstitutional Law which is still in effect because it has not yet been challenged and ruled upon by the court system:

The most recent military funding act allows for detaining US Persons without charge for an undetermined amount of time. SCOTUS rulings already say it is unconstitutional to hold a US Citizien (US Citizens are a subset of the superset of US Persons) without charge. Therefor, this law is unconstitutional. Until it is challeneged - which most likely will not happen until this portion is enforced - it is considered constitutional. Depending on the severability clause use in this act, it could invalidate the entire thing - but most likly only that one little part will be struck down if it ever is challenged.

Laws are considered constitutional by default and have to be proven unconstitutional in order to be such - even if it is obvious they are. A law could be written which says "Everyone living inside the United States must become Catholic or be executed" will quickly be fast tracked to the SCOTUS, where it will be deemed unconstitutional - but until then it is constitutional. During the fast tracking, a lower court will bar its enforcement. Point is, even that law would be constitutional until it is determined by the courts to not be.

 

[lopri]

With regard to the leaks, Jan Crawford states the following:

according to two sources with specific knowledge of the deliberations

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.

http://www.cbsnews.com/8301-3460_16...-health-care-law/?tag=contentMain;contentBody

When she mentions "specific knowledge" of justices conference, there can only be two categories of such people: Justices themselves or their clerks.

Now consider that Jan Crawford is a conservative-leaning SCOTUS reporter with some access to the justices. Would she risk her career (by lying) or risk losing access to justices (by breaking confidentiality) for a 2-minute reporting on TV or hits on a 4-page news story? I'd say that's unthinkable. Whoever the sources (justices or clerks) are, she must have written the piece at least with an implicit permission from the justice(s). Anything less than that, her professional career will be critically impaired.

As for the leaks to the media prior to the announcement of the decision, see below. Keep an eye on the dates.

- LA Times, 5/23: Conservatives worry that John Roberts will 'go wobbly' on 'Obamacare'
- Kathleen Parker (Washington Post, 5/22)): The public trial of Justice Roberts
- George Will (Washington Post, 5/25): Liberals put the squeeze to Justice Roberts
- Randy Barnett (Volokh Conspiracy, 5/23): Another Switch in Time?
- Wall Street Journal Editorial (Wall Street Journal, 5/23): Targeting John Roberts

And finally, defiant Randy Barnett re-posted his 5/23 piece as if he doesn't give a f*** any more -> “Another Switch in Time?” Yes! (6/7)

As you can see, it is in a plain view that sometime in late May someone in the court with the knowledge of Roberts' changing position spoke to conservative circles outside the court. At a minimum one can have a reasonable suspicion as to why of a sudden these conservatives made such a concerted effort outside the court all at the same time.

There are more circumstantial proofs in the conservative blogsphere (such as National Review) but I suppose I don't need to dig up every tweets or blogs. We are, in the end, talking about something that's not going to be ultimately settled. Unless those who leaked come out clean, we may never know exactly who leaked what.

That, hoever, doesn't mean we cannot make an informed and reasonable guess. I will let others make their own judgments. I am guessing Scalia and/or Clarence/Ginnie Thomas.

 

[lopri]

BTW Randy Barnett is the one who manufactured the "action/inaction" theory right around the passage of Obamacare. (Later in the litigation it was euphemized as "compelling individuals who are doing nothing", when the challengers realized even the conservative judges in lower court did not buy the "action/inaction" distinction)

Why this action/inaction distinction is a meaningless formalism invented for the sole purpose of striking down the ACA, is an interesting subject. I don't mind discussing it if anyone is interested.

 

[cybrsage]

From what I understand, the original intent was to force people to engage in interstate commerce so that newly created commerce could be regulated under the commerce clause.

The SCOTUS ruled that was stupid.

 

[lopri]

Geez. She's at it again with some more.

Jan Crawford: Discord at Supreme Court is deep, and personal

Discord at the Supreme Court is deep and personal after Chief Justice John Roberts' surprise decision to side with the liberal justices in upholding a large portion of the president's health care plan. This discord is going to affect this Court for a long time - and no one has any idea how it will be resolved.

Conservatives feel a sense of betrayal. They feel that Roberts changed his mind for the wrong reasons.

If Roberts had been with the liberals from the beginning, sources tell me that would have been one thing; but switching his position - and relatively late in the process - infuriated the conservatives.

Then she reports the extraordinary push-backs between Roberts and Kennedy.

When he changed his mind and joined with the liberals to uphold the law instead, he tried furiously - with a fair amount of "arm twisting" - to get Justice Anthony Kennedy to come along. Kennedy sometimes breaks with conservatives, so Roberts likely saw him as his best hope.

But on this issue of federal power, Kennedy was firm. The conservatives refused to even engage with Roberts on joining his opinion to uphold the law. They set out writing their own opinion - they wrote it to look like a majority decision, according to sources, because they hoped Roberts would rejoin them to strike down the mandate. Kennedy relentlessly lobbied Roberts until the end to come back. Of course he did not, and the conservatives' decision became a dissent.

Now I think it's possible (or maybe even probable) that it was Kennedy leaking, when it comes to post-decision leak. Kennedy made the most "relentless" effort, so he must be most disappointed.

It has to be especially infuriating for him, considering the power he has wielded as the nation's most powerful person since justice O'connor retired. As a "swing" justice, he is not used to lobbying, but used to being lobbied. My worry is whether this experience will push him firmly toward axis of evil on the court.