How dare they. Appeals court questions Obama's comments.

[Fern]

-snip-
Fourth, if Scalia (or Kennedy) can find interstate commerce in growing and smoking your own pot without ever leaving your home, and use that justification for federal criminal prosecution,

I wrote a lengthy reply to you on this subject yesterday but some how lost it in the posting process. I'll take another shot but lack the enthusiasm to be anything but brief.

First, a little background to help understand my perspective on the MJ case. I lived in the Netherlands for a while, mostly in Amsterdam, where MJ and hash were legal. Later I lived in other European countries for several more years. The other Euro countries had many problems with MJ and hash, much of it coming from the Netherlands where it was so easy to acquire. (This was some time ago, back before other countries loosened their pot laws).

The Netherlands made serious efforts to comply with their neighboring nations request to contain the MJ and hash. E.g., every time I drove out of the Netherlands, cars were always stopped and there was an attempt to do an inspection of some sort.

The ICC permits Congress to regulate interstate commerce. Regulating includes enforcement against unlawful goods/commerce. The other states don't want intrastate or, therefore, interstate MJ commerce and have their rights as well.

So, IMO, it is reasonable to forbid MJ sales in CA as means of regulating, in this case prohibiting, interstate sales of unlawful goods/commerce. But I conclude that only because the more reasonable accommodation of requiring CA to prevent MJ from crossing it's border and becoming interstate commerce (instead of just intrastate) is not possible. If a requirement is not possible, it is not reasonable either.

(The grain/wheat case, as I understand it, is however not something I agree with in the least. (The precedent for the MJ case.))

then it would be extremely logically inconsistent for either to NOT find interstate commerce in our healthcare market, and NOT allow that to justify a mere financial penalty. At least Thomas can come down against this and still be completely consistent with his ruling in Gonzales v. Raich.

Perhaps I missed it, but I don't believe anybody is denying that HC (actually HI since that's the focus of the law) is, or can be, interstate commerce.

And to regulate commerce is different than forcing everyone to engage in that commerce in the first place. This is a fundamentally important difference. Heretofore, AFAIK, the ICC has not been used to force people to participate in an interstate market they chose not to. It is a new 'power' not recognized before, nor enumerated plainly in the Constitution.

And the mechanism employed to force you to engage in this interstate commerce is the least important aspect of all IMO. It matters not to the fundamental question of an expansion of govt power that it is a financial penalty or a prison term. Once you've established that new power in govt, the penalty can be easily changed later for it would not be a Constitutional issue unless it was so extreme it rose to the question of 'extreme or unusual'.

So, I see no logical inconsistencies. I see two cases with little in common.

Wasn't as brief as I expected.

Fern

 

[werepossum]

First, due to the very definition of "regulate," the commerce clause has never been limited to solely curbing or prohibiting commerce.

Second, the fact that it has taken 200 years to be confronted with a situation like this only reaffirms the uniqueness of the healthcare market we have.

Third, you aren't being *made* to buy anything with this "mandate." You are fully within your rights to not buy health insurance and pay the penalty. Or even not pay the penalty.

Fourth, if Scalia (or Kennedy) can find interstate commerce in growing and smoking your own pot without ever leaving your home, and use that justification for federal criminal prosecution, then it would be extremely logically inconsistent for either to NOT find interstate commerce in our healthcare market, and NOT allow that to justify a mere financial penalty. At least Thomas can come down against this and still be completely consistent with his ruling in Gonzales v. Raich.

But growing and smoking your own pot is EXACTLY analogous to Wickard v. Filburn. Personally I'd like to see Congress' habitual overreach in using the commerce clause smacked down, but at least you should recognize that that ruling otherwise would have been overturning the precedent set in Wickard v. Filburn.

From the justices' questions, all except Ginsberg and Kagan and Sotomayor (who all three attempted to make the administration's case for it) seemed to have a real problem with the mandate. (BTW, is anyone still in doubt that Obama named two Harriet Meyers?) That's not unexpected; as recently as 2000 SCOTUS said in United States v. Morrison that it explicitly rejected any interpretation of the Commerce Clause that allowed Congress to exercise a police power. This is even worse constitutionally; this is Congress seizing the right to exercise a police power and then devolving this new power entirely to an executive branch department. This is the first time Congress has presumed the power to penalize you not only for engaging in economic activity outside of its interstate commerce structure, but for failing to engage in the economic activity at all, and it has deeded its new authority over this power to an unelected agency.

Nonetheless, I don't expect Obamacare to be overthrown. I expect Kennedy to craft a complicated and convoluted criteria about what constitutes a special situation warranting the use of this new power. I could be wrong, as Kennedy has himself authored opinions emphasizing that the Constitution set up a federal government with limited powers, specifically withholding from Congress plenary police powers, but that's still how I'm betting. Then the power of the federal government can continue to grow unabated. Health care is special; so too will the next intrusion be special, and it's all for our own good. SCOTUS is, when all is said and done, not a part of the states' governments, after all. We should all realize though that this is a make or break moment. EVERY decision we make affects interstate commerce when taken across the whole of the country, and no matter how carefully crafted the criteria, once this decision is in place there is literally nothing the federal government cannot justify making us do or preventing us from doing. This is going to be the ruling that extends Kelo v. New London beyond the domain of our real property and into every other aspect of our lives. Sadly, I not only expect it, I don't even think it's that big a leap.

 

[Moonbeam]

I wrote a lengthy reply to you on this subject yesterday but some how lost it in the posting process. I'll take another shot but lack the enthusiasm to be anything but brief.

First, a little background to help understand my perspective on the MJ case. I lived in the Netherlands for a while, mostly in Amsterdam, where MJ and hash were legal. Later I lived in other European countries for several more years. The other Euro countries had many problems with MJ and hash, much of it coming from the Netherlands where it was so easy to acquire. (This was some time ago, back before other countries loosened their pot laws).

The Netherlands made serious efforts to comply with their neighboring nations request to contain the MJ and hash. E.g., every time I drove out of the Netherlands, cars were always stopped and there was an attempt to do an inspection of some sort.

The ICC permits Congress to regulate interstate commerce. Regulating includes enforcement against unlawful goods/commerce. The other states don't want intrastate or, therefore, interstate MJ commerce and have their rights as well.

So, IMO, it is reasonable to forbid MJ sales in CA as means of regulating, in this case prohibiting, interstate sales of unlawful goods/commerce. But I conclude that only because the more reasonable accommodation of requiring CA to prevent MJ from crossing it's border and becoming interstate commerce (instead of just intrastate) is not possible. If a requirement is not possible, it is not reasonable either.

(The grain/wheat case, as I understand it, is however not something I agree with in the least. (The precedent for the MJ case.))



Perhaps I missed it, but I don't believe anybody is denying that HC (actually HI since that's the focus of the law) is, or can be, interstate commerce.

And to regulate commerce is different than forcing everyone to engage in that commerce in the first place. This is a fundamentally important difference. Heretofore, AFAIK, the ICC has not been used to force people to participate in an interstate market they chose not to. It is a new 'power' not recognized before, nor enumerated plainly in the Constitution.

And the mechanism employed to force you to engage in this interstate commerce is the least important aspect of all IMO. It matters not to the fundamental question of an expansion of govt power that it is a financial penalty or a prison term. Once you've established that new power in govt, the penalty can be easily changed later for it would not be a Constitutional issue unless it was so extreme it rose to the question of 'extreme or unusual'.

So, I see no logical inconsistencies. I see two cases with little in common.

Wasn't as brief as I expected.

Fern

Why can't we turn active keys that cause things to happen if accidentally hit off in a control panel or something somewhere. Why can't we just have the letter and number keys space, etc work and turn off all functions for othes?

OT I know but very frustrating.

 

[Gonad the Barbarian]

And to regulate commerce is different than forcing everyone to engage in that commerce in the first place.
Fern

First, no one is being forced to participate in the healthcare market. Everyone already does so of their own self preservation instinct.

Second, no one is being forced to purchase health insurance. The is no crime in not purchasing it and paying the fine. Or even not paying the fine.

You sure reach for distinctions when it suits you but sure won't recognize those two glaring ones staring you in the face.

 

[Fern]

First, no one is being forced to participate in the healthcare market. Everyone already does so of their own self preservation instinct.

Second, no one is being forced to purchase health insurance. The is no crime in not purchasing it and paying the fine. Or even not paying the fine.

You sure reach for distinctions when it suits you but sure won't recognize those two glaring ones staring you in the face.

The penalty is the mechanism to force.

In all cases where the govt forces you to do something, or forces you not to do something, the mechanism is a penalty for not complying.
That is all a govt can do. The severity of the penalty (fine or prison term) is of no importance to the fundamental question of whether govt has the power to force you to do the thing in the first place.

Fern

 

[theeedude]

The commerce is created regardless of whether you buy insurance or not. If people don't buy insurance, hospitals need to insure themselves against unreimbursed ER bills, which they do by adding a premium to other patients' health care bill. So individual mandate does not create commerce, it regulates that commerce to ensure that an individual's health risk is insured by that individual instead of third parties having it priced into their health care bills.

 

[Gonad the Barbarian]

The penalty is the mechanism to force.

In all cases where the govt forces you to do something, or forces you not to do something, the mechanism is a penalty for not complying.
That is all a govt can do. The severity of the penalty (fine or prison term) is of no importance to fundamental question of whether govt has the power to force you to do the thing in the first place.

Fern

There is no penalty here. You can completely ignore this "mandate" and the government can take no action against you.

On the other hand, I just got penalized by the government for not having a mortgage on my house. Yet the government is not forcing me to have a mortgage.

 

[Fern]

The commerce is created regardless of whether you buy insurance or not. If people don't buy insurance, hospitals need to insure themselves against unreimbursed ER bills, which they do by adding a premium to other patients' health care bill. So individual mandate does not create commerce, it regulates that commerce to ensure that an individual's health risk is insured by that individual instead of third parties having it priced into their health care bills.

All you've said is that 'regulating' commerce includes forcing people to engage in that commerce.

But that's the fundamental question, isn't it? So far, AFAIK, we've never seen that done. Thus, the question before the SCOTUS.

Fern

 

[Fern]

There is no penalty here. You can completely ignore this "mandate" and the government can take no action against you.

There is a financial penalty.

I'm not ignoring it. I do not believe the details regarding the collection procedure are relevant. They can always be changed. In fact, I feel comfortable guaranteeing you they will changed if enacted. I say that because the govt always tinkers with enforcement/collection methods.

On the other hand, I just got penalized by the government for not having a mortgage on my house. Yet the government is not forcing me to have a mortgage.

If you're referring to your income tax return, you were no more penalized for not having a mortgage than you were penalized for:

1. Not having more dependent children

2. Not incurring huge business losses

3. Not paying even more state income tax

4. Not paying even more real estate tax

5. Not suffering huge medical expenses

6. Not losing money on sale of assets (cap losses).

7. Not putting more money in a retirement plan.

Etc.

In our tax system the government offers 'benefits' to encourage certain behavior. Mortg interest and IRA's/401k's are examples of behavior the govt wishes to encourage. You chose to not engage in this behavior (MI), thus you do not get the 'benefit' (deduction).

Under the previous system, the govt offered a benefit to encourage people to buy HI (HI is deductible.). There was no Constitutional basis for a claim you were 'forced' to buy HI because not doing so resulted in the loss of a benefit (deduction) to you.

Edit: Wanted to add the fact the penalty is somewhat low and the collection mechanism has little teeth is to make it politically possible. Has nothing to do with the Constitutionality of it.

Fern

 

[theeedude]

All you've said is that 'regulating' commerce includes forcing people to engage in that commerce.

But that's the fundamental question, isn't it? So far, AFAIK, we've never seen that done. Thus, the question before the SCOTUS.

Fern

What forced people to engage in commerce (pay for coverage) is the act that Reagan signed requiring hospitals to treat people regardless of ability to pay. That forced hospitals to engage in commerce by treating those people, and it forced customers of said hospitals to engage in additional commerce by paying for services provided to the uninsured. So the forcing to engage in commerce has already happened. When you are forced to absorb costs of uninsured in your essential health care bill, you are already forced to engage in commerce. So the only question for the court is not whether it's OK to force people to engage in commerce, but who should be forced to engage in it. Sick people who are forced to pick up the tab for deadbeats in addition to their own health expenses, or healthy people who are forced to cover their own health risk.

 

[Gonad the Barbarian]

In our tax system the government offers 'benefits' to encourage certain behavior.
Fern

Not being expected to pay a fine is a pretty nice benefit to encourage certain behavior too.

Snarkiness aside, there is absolutely no practical difference between missing a deduction, or running into a penalty. The math works out exactly the same regardless of what you call it, the effect to encourage or discourage the transaction works exactly the same, as does its dependence on participating or avoiding the specific transaction in the first place.

If the government has the right to "regulate" commerce by offering benefits to encourage wanted behavior, it also has the right to impose penalties to discourage unwanted behavior by extension, and vice versa.

 

[bfdd]

Fern I completely disagree with you that the Interstate Commerce Clause gives them that power to regulate MJ like that. Seems over blown, they should just setup harsh FEDERAL penalties for people being caught bring it from one State to another. Outright banning it is a straight up infringement of our rights as Citizens of the great State of California.

 

[Fern]

What forced people to engage in commerce (pay for coverage) is the act that Reagan signed requiring hospitals to treat people regardless of ability to pay. That forced hospitals to engage in commerce by treating those people, and it forced customers of said hospitals to engage in additional commerce by paying for services provided to the uninsured. So the forcing to engage in commerce has already happened.

Nope. They were already engaged in that form of commerce. It merely regulated how they went about admitting patients, who they could refuse or not refuse etc. The bill Reagan signed doesn't force the hospital to treat everybody either. I believe it's just serious emergency types who they are already capable of treating (i.e., they equip and specialists) and they must only treat them until they can stabilized. That's my understanding.

However, I agree with your main point (as I understand it). Prior laws have driven us to this point. It has created certain problems we are forced to confront. E.g., no one would be screaming about bearing the costs for the uninsured if hospitals weren't forced to treat them regardless of ability to pay. (Of course, there would be different problems.)

. When you are forced to absorb costs of uninsured in your essential health care bill, you are already forced to engage in commerce.

That makes no sense.

The manner in which your bill is calculated, the types of 'overhead' in it has nothing to do with forcing to engage in HC. The fact that you already chose to engage in it is how you ended up with a bill.

So the only question for the court is not whether it's OK to force people to engage in commerce, but who should be forced to engage in it.

Yes, the question is can the govt force people to engage in it. It's a question because it's a govt power with no precedent.

Fern

 

[Fern]

-snip-
If the government has the right to "regulate" commerce by offering benefits to encourage wanted behavior, it also has the right to impose penalties to discourage unwanted behavior by extension, and vice versa.

Tax benefits do not spring from the ICC. They arise from the power of taxation, specifically income tax.

Congress already used that tool (taxation) to encourage HI coverage/purchase. They found that tool insufficient. They are looking for another (Constitutional) tool now and I don't think the ICC is it. I believe if the SCOTUS strikes it down Congress will look elsewhere for that tool. I believe they may find it in the 'General Welfare" clause.

Fern

 

[Fern]

Fern I completely disagree with you that the Interstate Commerce Clause gives them that power to regulate MJ like that. Seems over blown, they should just setup harsh FEDERAL penalties for people being caught bring it from one State to another. Outright banning it is a straight up infringement of our rights as Citizens of the great State of California.

It's a reasonable disagreement.

Which prevails? States' rights or the ICC?

If the feds agree to not prosecute CA citizens, how can they prosecute me living in another state? This would violate my rights under the Equal protection clause:

The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal"

We're not created equal if you can smoke pot and I can't under federal law merely because I'm in a different state.

I think the real problem here is the federal govt outlawing pot across the nation. If it had been left to the individual states, as I believe originally intended, we wouldn't have this problem; would we?

I think the Constitution was damn well designed back then. Now it won't give everybody everything they want, but when you go screwing around with it you get bit in the azz, like we are here.

The anti-drug people got their way with federal laws, not we have this problem. Should have just left it alone, not found new fed govt 'powers' where none are clearly enumerated and, aside from someone in some state getting high, we'd not have this problem.

Fern

 

[Gonad the Barbarian]

Tax benefits do not spring from the ICC. They arise from the power of taxation, specifically income tax.
Fern

What power does the ICC grant to regulate commerce then if not the power to levy benefits/penalties to specifically encourage/discourage certain transactions?

If the feds agree to not prosecute CA citizens, how can they prosecute me living in another state?

They wouldn't, because

This would violate my rights under the Equal protection clause:

We're not created equal if you can smoke pot and I can't under federal law merely because I'm in a different state.
Fern

You know that wouldn't be the case as neither would fall under federal jurisdiction unless state lines were crossed just like every other state law the feds keep their noses out of.

 

[theeedude]

Nope. They were already engaged in that form of commerce. It merely regulated how they went about admitting patients, who they could refuse or not refuse etc. The bill Reagan signed doesn't force the hospital to treat everybody either. I believe it's just serious emergency types who they are already capable of treating (i.e., they equip and specialists) and they must only treat them until they can stabilized. That's my understanding.

However, I agree with your main point (as I understand it). Prior laws have driven us to this point. It has created certain problems we are forced to confront. E.g., no one would be screaming about bearing the costs for the uninsured if hospitals weren't forced to treat them regardless of ability to pay. (Of course, there would be different problems.)



That makes no sense.

The manner in which your bill is calculated, the types of 'overhead' in it has nothing to do with forcing to engage in HC. The fact that you already chose to engage in it is how you ended up with a bill.



Yes, the question is can the govt force people to engage in it. It's a question because it's a govt power with no precedent.

Fern

If the government can force a private hospital to cover care for the uninsured, which is a law that neither party is challenging, that is a precedent. The government can force a private party to pay to cover care for a private party. ACA mandate regulates that the party paying to cover the cost of care be the one incurring that cost.

 

[Fern]

What power does the ICC grant to regulate commerce then if not the power to levy benefits/penalties to specifically encourage/discourage certain transactions?

I'm not aware of any benefits, of any attempt to encourage behavior in the ICC.

I'm only aware of penalties.

Doesn't mean there aren't any. But tax policy is under a different part of the Constitution and has long been (ab)used by Congress to promote certain behavior or businesses/industry (e.g., tax credits for 'green' businesses).

I cannot say the same about the ICC. My recollection is that it was included to facilitate ICC. Prior to that states could, and did, interfere with interstate commerce. I.e., you were screwed in you lived in a land-locked state where the goods had to pass through another state.

Fern

 

[Craig234]

I'm not aware of any benefits, of any attempt to encourage behavior in the ICC.

I'm only aware of penalties.

Doesn't mean there aren't any. But tax policy is under a different part of the Constitution and has long been (ab)used by Congress to promote certain behavior or businesses/industry (e.g., tax credits for 'green' businesses).

I cannot say the same about the ICC. My recollection is that it was included to facilitate ICC. Prior to that states could, and did, interfere with interstate commerce. I.e., you were screwed in you lived in a land-locked state where the goods had to pass through another state.

Fern

You seem confused. If the government wants to spend a lot and put a man on the moon, ok. But I guess if they use 'credits' to get private business to do it, you object.

 

[Hayabusa Rider]

If the government can force a private hospital to cover care for the uninsured, which is a law that neither party is challenging, that is a precedent. The government can force a private party to pay to cover care for a private party. ACA mandate regulates that the party paying to cover the cost of care be the one incurring that cost.

Translated:
If there is one abuse of power then that ought to exist in perpetuity as a fundamental right of government.

It's past time that the use of the commerce law is reexamined.

 

[Jhhnn]

What forced people to engage in commerce (pay for coverage) is the act that Reagan signed requiring hospitals to treat people regardless of ability to pay. That forced hospitals to engage in commerce by treating those people, and it forced customers of said hospitals to engage in additional commerce by paying for services provided to the uninsured. So the forcing to engage in commerce has already happened. When you are forced to absorb costs of uninsured in your essential health care bill, you are already forced to engage in commerce. So the only question for the court is not whether it's OK to force people to engage in commerce, but who should be forced to engage in it. Sick people who are forced to pick up the tab for deadbeats in addition to their own health expenses, or healthy people who are forced to cover their own health risk.

Translated:
If there is one abuse of power then that ought to exist in perpetuity as a fundamental right of government.

It's past time that the use of the commerce law is reexamined.

So, uhh, you're contending that hospitals should be able to turn away emergency room patients if they can't demonstrate the ability to pay, or what?

 

[Hayabusa Rider]

So, uhh, you're contending that hospitals should be able to turn away emergency room patients if they can't demonstrate the ability to pay, or what?

I'm contending that if hospitals are forced by the government to treat people who cannot pay the government is obligated to reimburse them.

 

[Dannar26]

He's angry that his pet law is threatened, and now he's lashing out in frustration. The only "unprecedented" thing here is his slander of one of our three distinct branches of government. There's no defending him on this.

Poor form Obama, poor form...

Duely blundered from my thunderdolt

 

[theeedude]

Translated:
If there is one abuse of power then that ought to exist in perpetuity as a fundamental right of government.

It's past time that the use of the commerce law is reexamined.

Then go to court to overturn EMTALA. Scalia supports not treating people at the ER.

 

[theeedude]

I'm contending that if hospitals are forced by the government to treat people who cannot pay the government is obligated to reimburse them.

Agreed. Hospital care for people who choose not to buy insurance should be paid by the government. That way, people can choose universal single payer for themselves