ACA (a.k.a. Obamacare) Upheld

[lopri]

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

Indeed, Congress regularly and uncontroversially requires individuals who are “doing nothing,” to take action. Examples include federal requirements to report for jury duty, 28 U. S. C.§1866(g) (2006 ed., Supp. IV); to register for selective service, 50U. S. C. App. §453; to purchase firearms and gear in anticipation of service in the Militia, 1 Stat. 271 (Uniform Militia Act of 1792); to turn gold currency over to the Federal Government in exchange for paper currency, see Nortz v. United States, 294 U. S. 317, 328 (1935); and to file a tax return, 26 U. S. C. §6012 (2006 ed., Supp. IV). (emphasis added)

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

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.

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

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")

Then your final resort is ambivalence:

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.

 

[fskimospy]

Dude, it isn't even close to the comparable. I can see where you think the principle might be comparable, but the reality is that the two are nothing alike.

Simply stating something doesn't make it so, no matter how many times you repeat it. It was stated that the federal government had never forced people to purchase something before, and that we had a constitutional right not to be forced to purchase things.

The militia act of 1792 explicitly refutes such a line of reasoning. Not only did it force people to purchase something, but a good number of the people who passed such a law were the people who wrote the Constitution.

Game over.

 

[fskimospy]

My argument is that it cannot automatically be assumed Constitutional because the question was never raised.

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.

I don't equate the raising of a militia, including a requirement that they arm themselves, with the issue of forcing everyone to own a 'thing' merely because Congress thinks it's a good idea. So, from my perspective your question is fatally flawed and one I cannot address.

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.

I'm curious, I haven't read the entire opinion but was the 2nd Militia Act of 1792 discussed in support of the mandate penalty/tax? If not, that's a powerful indication the justices don't see any relevance either.

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?

As regards your assertion that someone is proclaiming "the Constitution had within it a positive right to not be forced to buy anything" I cannot share that because I view it as 'backwards'.

While some rights (e.g., to bear arms and vote) for individuals are laid in that manner, the federal govt's powers are enumerated and limited to only those. Art. 10 says the rest remain with the states and the people.

So, my contention would be that the power to force people to own a product is not enumerated in the Constitution, thus the govt doesn't have it. I.e., not that there is a statement that we as individuals have a right to not be forced to own something.

Fern

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.

 

[xj0hnx]

The militia act of 1792 explicitly refutes such a line of reasoning. Not only did it force people to purchase something, but a good number of the people who passed such a law were the people who wrote the Constitution.

Game over.

It did not force every citizen to purchase and continually pay for a private corporations service, or be fined.

I love watching liberals support the government forcing the citizens to line the pockets of the evil insurance companies, well, I would love it if I didn't think it was going to be a complete disaster.

 

[lopri]

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.

That is the correct view under our separation-of-power system. The judiciary lacks the competence to judge policy choices the people (and their representatives) have made. Plus, "The Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes."

Thus, almost all laws enjoy the presumption of constitutionality when they are litigated, meaning the burden is on the challengers. (Unless those laws touches on fundamental rights or equal protections, esp. those of minorities)

 

[fskimospy]

It did not force every citizen to purchase and continually pay for a private corporations service, or be fined.

I love watching liberals support the government forcing the citizens to line the pockets of the evil insurance companies, well, I would love it if I didn't think it was going to be a complete disaster.

Ahh, so now you're saying that a right only exists to not purchase things from private corporations? Or is it the quantity of times something must be purchased? Exactly how many times must it be purchased before it becomes unconstitutional?

This is a discussion about the powers of government, not the best policy. The actual best policy would have been a universal catastrophic insurance plan run by the government with tax advantaged health savings accounts for day to day expenditures. That is neither here nor there though, this is all about what the Constitution does and does not do.

 

[xj0hnx]

Ahh, so now you're saying that a right only exists to not purchase things from private corporations? Or is it the quantity of times something must be purchased? Exactly how many times must it be purchased before it becomes unconstitutional?

I said they are completely different, and incomparable.

 

[Cerb]

Honestly, the federal government as we know it did not exist for in excess of another 100 years, and the law was never challenged. I think it's interesting as a bit of history, but applicability kind of falls apart even before arguing its merits.

 

[Matt1970]

Simply stating something doesn't make it so, no matter how many times you repeat it. It was stated that the federal government had never forced people to purchase something before, and that we had a constitutional right not to be forced to purchase things.

The militia act of 1792 explicitly refutes such a line of reasoning. Not only did it force people to purchase something, but a good number of the people who passed such a law were the people who wrote the Constitution.

Game over.

What part of "That law was never enforced" do you not understand?????? Also, that was 220 years ago. Do we really want to use law examples from back then when it was legal to own a slave and rape your wife?

 

[umbrella39]

The simple solution to this whole inane being forced to buy BS argument is, as usual... allow us to roll you out to the street once it is determined you are one of those people who can't be bothered to buy health insurance. I'm totally OK with that if people want to opt out of the AHA. You gamble, you decide, when we find out, we decide. If you aren't for that then you are a dreg of society who thinks it's OK to force us to take care of you when you get sick/hurt but not OK to force you to have a means to pay us back.

 

[nehalem256]

Honestly, the federal government as we know it did not exist for in excess of another 100 years, and the law was never challenged.

AND the law was never enforced.

 

[Charles Kozierok]

The simple solution to this whole inane being forced to buy BS argument is, as usual... allow us to roll you out to the street once it is determined you are one of those people who can't be bothered to buy health insurance. I'm totally OK with that if people want to opt out of the AHA. You gamble, you decide, when we find out, we decide. If you aren't for that then you are a dreg of society who thinks it's OK to force us to take care of you when you get sick/hurt but not OK to force you to have a means to pay us back.

The crux of the problem is that most people in society are not okay with this.

As an aside, I find it amusing that those now whining that we can't use a 220-year-old law as a precedent are the same people constantly claiming to be "strict constitutionalists" and that it's "not a living document" and that we have to be "true to the founders' vision" and who also want to take us back 200+ years in a variety of other ways.

Very convenient picking and choosing going on there. I have no doubt that if there were a 220-year-old precedent outlawing a mandate, they'd have no problem using it.

 

[fskimospy]

What part of "That law was never enforced" do you not understand?????? Also, that was 220 years ago. Do we really want to use law examples from back then when it was legal to own a slave and rape your wife?

This is very interesting. If we truly believed in original intent as Scalia, Thomas, and other conservatives do then whether it was 220 years ago or 220 seconds ago should be irrelevant. By arguing the age you appear to be endorsing the idea that the Constitution should be read based on the times we live in, is this correct? If it is not correct, can you explain why the age of prior actions matters?

 

[fskimospy]

I said they are completely different, and incomparable.

Well by all means explain why the government mandate of the purchase of a firearm is 'completely different' than the government mandate of the purchase of health care. Be very specific.

 

[nehalem256]

Well by all means explain why the government mandate of the purchase of a firearm is 'completely different' than the government mandate of the purchase of health care. Be very specific.

1.) Because it only applied to members of the militia.

2.) There was never any constitutional challenge to the act, because it was never enforced.

 

[nehalem256]

The crux of the problem is that most people in society are not okay with this.

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.

 

[fskimospy]

1.) Because it only applied to members of the militia.

2.) There was never any constitutional challenge to the act, because it was never enforced.

1.) 'Only members of the militia' was basically equal to every living man in America. Again, you appear to be arguing that if the ACA had started out with the first line of 'now everyone's in a militia' that it would have made a difference. I am unaware of any legal authority that makes this hilarious, but novel claim.

Secondly this then presupposes that the government DOES have the power to force you to buy things. I'm pleased to see you slowly moving towards my position.

2.) Irrelevant. You have seemingly latched on to the idea that because enacted laws were never brought before the supreme court that they aren't relevant. This is frankly baffling, and a position that I am absolutely certain that no competent legal authority would ever attempt to hold.

 

[xj0hnx]

1.) 'Only members of the militia' was basically equal to every living man in America.

So the ACA only applies to men? Did not know that.

 

[nehalem256]

1.) 'Only members of the militia' was basically equal to every living man in America. Again, you appear to be arguing that if the ACA had started out with the first line of 'now everyone's in a militia' that it would have made a difference. I am unaware of any legal authority that makes this hilarious, but novel claim.

If the ACA had starting out by saying that "now everyone's in a militia" it would have been laughed off the house floor.

But the theory is simple. The government could not pass a law requiring people to assemble 2 weeks out of the year. But the National Guard (replacement for the militia) is required to assemble 2 weeks every year.

Secondly this then presupposes that the government DOES have the power to force you to buy things. I'm pleased to see you slowly moving towards my position.

No it presupposes that being a member of the militia is different.

2.) Irrelevant. You have seemingly latched on to the idea that because enacted laws were never brought before the supreme court that they aren't relevant. This is frankly baffling, and a position that I am absolutely certain that no competent legal authority would ever attempt to hold.

Whether or not a law was brought before the supreme court is VERY relevant to whether they were constitutional.

 

[fskimospy]

If the ACA had starting out by saying that "now everyone's in a militia" it would have been laughed off the house floor.

But the theory is simple. The government could not pass a law requiring people to assemble 2 weeks out of the year. But the National Guard (replacement for the militia) is required to assemble 2 weeks every year.

What on earth are you basing this idea on? Regardless of its impact on the House floor, you appear to be arguing that Obama could have forced everyone to buy health care if he had called them part of the militia first. On what are you basing this? Be specific.

No it presupposes that being a member of the militia is different.

No, it explicitly presupposes that the government can force people to buy things. There's no getting around it.

Whether or not a law was brought before the supreme court is VERY relevant to whether they were constitutional.

Actually it's not in any way. You're attempting to argue that unchallenged laws aren't evidence either way. I've simply asked you for a single competent legal authority that feels the same way about unchallenged legislation that you do. Just one. If your opinions are well founded surely you can find it.

Speaking of legal work you're supposed to do, I think you were also going to point out some things in Roe v. Wade for me. I'm still waiting on that one, any ETA there?

 

[nehalem256]

What on earth are you basing this idea on? Regardless of its impact on the House floor, you appear to be arguing that Obama could have forced everyone to buy health care if he had called them part of the militia first. On what are you basing this? Be specific.

He could not just call them part of the militia. They would actually have to be part of the militia. The power would stem from the President's power as Commander in Chief.

 

[nehalem256]

Actually it's not in any way. You're attempting to argue that unchallenged laws aren't evidence either way. I've simply asked you for a single competent legal authority that feels the same way about unchallenged legislation that you do. Just one. If your opinions are well founded surely you can find it.

And how does the fact that an unimplemented law was never challenged show that it was constitutional?

EDIT: see http://en.wikipedia.org/wiki/Standing_(law)

 

[fskimospy]

And how does the fact that an unimplemented law was never challenged show that it was constitutional?

EDIT: see http://en.wikipedia.org/wiki/Standing_(law)

Standing wasn't established in that way back in 1792, nor was even the principle of judicial review. Are you just linking random shit now? You're arguing that a law created by a Congress with 17 of the people who contributed to the writing of the Constitution and signed by George Washington should have no information to offer on what is Constitutional.

That's breathtakingly stupid.

 

[fskimospy]

He could not just call them part of the militia. They would actually have to be part of the militia. The power would stem from the President's power as Commander in Chief.

Interesting, you are now saying that the President has a power to compel citizens to buy things, but the legislature does not. This is getting even more bizarre, as Congress is the body given the explicit power to 'organize, arm, and discipline the militia'. (Article 1 Section 8) You have just declared an enormous coup for the executive branch, handing over explicitly enumerated legislative powers to him.

At this point it is abundantly clear that you have no fucking clue what you are talking about and are just flailing around desperately grasping at whatever you think can help you avoid admitting you're wrong.

 

[nehalem256]

Interesting, you are now saying that the President has a power to compel citizens to buy things, but the legislature does not. This is getting even more bizarre, as Congress is the body given the explicit power to 'organize, arm, and discipline the militia'. (Article 1 Section 8) You have just declared an enormous coup for the executive branch, handing over explicitly enumerated legislative powers to him.

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