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Nice try, but let me say that as long as you don't know what, specifically, the judge ruled was unconstitutional it seems to me that you are trying to use political thought to call him an activist. To help you out let me tell you that he said what I thing the Supreme Court will rule unconstitutional and that is the mandate to force people to buy health insurance whether they like it or not, and pay a fine for three years if they don't have it.
There is not word one in part of the Constitution that provides interstate commerce control that involves mandates to force the people to buy anything, insurance or otherwise. If they get by with this power grab nothing will stop them from later doing things even worse to the people.
In case you can't see it, the case you are talking about was able to apply the interstate commerce clause to since once that wheat was part of the stream of commerce most of it probably entered interstate. Now since most, if not all states, don't allow the sale of insurance by more than three companies and none of them allow it to be done by companies from other states than those in their state interstate commerce is not involved in the sale of health insurance. Therefore, there is no interstate competition and the prices can be higher that way.
I guess you don't know that there were at least as many insurance men involved in writing that Reid-Pelosi Health Insurance reform bill as there were Senators. Think about what is going on and then try to arrive at a conclusion about this thing.
The judge said only that the mandate to force all people to buy health insurance was unconstitutional but he also said that he couldn't find anything in the law that allowed parts to be unconstitutional without making all of it that way. I am sure I know why they didn't include anything like that to be in there and surely you can see it.
I think that the Dems are wanting that case to overrule this one but don't see any kind of government mandate being questioned in the precedent setting case.
Um...Huh? And Roy--just so you understand--PollyRobin wants to go to completely nationalized health care--not through insurance companies like this bill. She doesn't think the HCR bill goes far enough. Just thought you might want to know that since you seem to think that anyone who agrees with you on whether or not HCR is a good deal is making a great point. She's made the case very clearly why the court might take a look at it this case, but the other side--that the SC will NOT get into further redefining the interstate commerce clause--is just as valid and just as possible. Again--there's an even split among judges of equal power. The truth is that it's a wild card at this point. Kennedy will be the swing vote, and he tends to take a conservative judicial approach (meaning leaving laws alone when possible--not to be confused with politically conservative) so I think that might have a bit of an edge over change. We'll just have to see.
First off, 2 federal judges have ruled the law unconstitutional and 2 federal judges have ruled it constitutional.
26 (actually 28 now) state Attorneys General (almost all Republican, btw), have filed suit, or joined in this suit, that does not give any weight to the constitutionality of the law. It just means people are suing. Not everyone who sues, wins. Again, 2 for, 2 against. At the moment, there is no binding ruling that the Administration is required to abide. This kind of language is where you lose me. I'll let your own Wikipedia link explain it to you then.
"Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial."
So the Supreme Court unanimously ruled that Congress could impose a fine on Filburn and force him to buy his wheat through the open market, because his non-participation in the open-market purchase of wheat, negatively affected interstate commerce.
In that same regard, Congress has relied upon the decision in Wickard to enact a law that in essence says, "through the cumulative actions of thousands (in this case millions) of individuals not participating in the health insurance pool, the economic effect becomes substantial, and viewed through the aggregate has a substantial effect on interstate commerce."
This is how the law works. Courts use decisions in one or more cases, to decide other cases, not based on whether each case was about feathers or gumballs, but based on the larger question as to how those laws are applicable to the Constitution.
And in this case, Wickard is the precedent being used. You lost me again.
Cliff notes:
Congress made a law.
Man broke law.
Man was sued.
Man lost.
Tell me how this case even comes close to saying or even justifying what the government is attempting to do by MAKING us buy insurance....
I have asked my doctor and the other three that work in the clinic she works in and not one of them likes it. I also have asked the heart doctor I see every 4 months and even a woman who came for him a month ago and not any of them like this thing. In fact, the woman heart doctor said she is retiring before it goes into effect if the stock market doesn't go to hell before she can get it done. I guess they won't be getting her savings when they make the grab at 401K and IRA. She must have seen them coming.
Anyway along with my periodontist who really hates the thing I have 7 votes against to none for.
Exactly!!!! I am finding the Doctors whom do like it are more liberal and usually working in clinic or not very successful situations.
Lets see...to add to your seven whom do not like it, I add my friends:
3 ER Doctors
1 CEO of a hospital
1 Nuerosurgeon
2 OBGYN's
1 Pediatrician
1 Environmenta Doctor (whom holds 3 medical degress)
1 Pediatric Neo-Natal Doctor/Specialist
2 Orthepdic Surgeons
and a host of dentists
So my 12 + your 7 is a lot of against. And I only added the Doctors I really know personally and have had conversations with. I am sure there are a lot more I do not know as well.
I feel more confident every day the HC bill will be defunded, and forced to be re-written into something that will actually work.
If you think this passes because of and through the
necessary and proper clause and attaching it to the commerce clause, think again.
I'll give you this:
The Congress shall have Power - 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.
But, Congressional powers do not include passing laws for the accomplishment of objects NOT intrusted to the Government.
The Federal government does not have the power to mandate a citizen buy a PRIVATE product or force a citizen to engage in PRIVATE contracts.
Doesn't matter whether Congress believes the mandated product/contract insures the success of
a law or not. They simply do not have that authority and
that can never become the law of the land.
That is exactly why the argument to guarantee success of anti discrimination against preexisting conditions doesn't fly either. A person that is never sick, does not go to a doctor or hospital yesterday, today, or tomorrow has no affect on the PRIVATE insurance industry or interstate commerce. One can not be mandated to buy a private product they neither need, nor want, to offset the costs of someone else who has a pre existing condition. It legally doesn't matter if that regulation Congress imposes on the Insurance Company can be fulfilled or not, simply because the Congress does not have the power to mandate
purchase of a private product/contract by a citizen.
It's like the person who owns a car, but never drives it off their property - even the state can't mandate you buy private car insurance in that case, regardless if accidents are on the rise on the public road and insurance companies are paying out claims left and right, increasing the cost of premiums to all public bad drivers.
The judge in Florida nailed this.
Very well said!
I have really enjoyed your posts on the law and how it pertains to this HC bill and thank you for taking the time to educate those of us that are not as familiar.
A family member is a trial lawyer (has actually sued a federal judge) and is currently arguing a case in front of my state supreme court. I am going to have a long converstation with him this weekend about all of this.
The man was already a farmer, and was already growing wheat. He was already an active participant in that economic activity - agriculture. Congress passed the Agricultural Adjustment Act of 1938 which allowed the federal government to regulate the amount of wheat a farmer could grow to control the supply of grain.
. . . in order that economic commerce not be adversely affected. It mattered not that Filburn was already a farmer. It mattered that beyond the limits he was allowed to grow, he grew wheat for his own personal consumption, which kept him out of the open market.
Quote:
Originally Posted by pollyrobin
That ruling did not give the federal government power to regulate inactivity. e.g. one who does not have any health
insurance coverage in the first place is not engaged in that economic activity. Just as the farmer was regulated because he was engaged in an interstate activity (agriculture) the commerce clause can not regulate him if he never was a farmer growing wheat
That's what the opposition is arguing, but they aren't correct. Wickard unanimously found that, not only was there inactivity on the part of Filburn (by way of not buying wheat on the open market), but that him alone not buying wheat wasn't at issue so much as the aggregate result of thousands (or millions) of non-participants in the open market substantially affecting commerce. They didn't know or care whether all these other thousands (or millions) of non-participants were actually farmers. They found that the government had the power to compel participation in the open market of a commodity, when non-participation in the aggregate could cause serious harm to the economy.
Frankly, it's a terrible ruling. But it's established law now, and has been for nearly 70 years.
Quote:
Originally Posted by pollyrobin
No commerce clause regulation has applied to anyone not
already engaged in an economic activity. The federal government might regulate the bank down the street from me, and I might have money, but the federal government can't mandate I put it in that bank, or any bank for that
matter.
The federal government does not have the power to mandate or force that anyone engage in a economic activity or private contract. Only after engagement, can the federal government regulate something.
The federal government does not have the power to regulate a person, under the commerce clause, simply, for doing nothing - e.g. not buying private health insurance.
Would that that were true, but that isn't what Wickard says.
Your arguments are all good -- against Wickard. Which is why if the Supreme Court wants to now draw a line, it will necessarily be an arbitrary line, otherwise they will have to throw out Wickard. And while it's not unheard of for a long-held ruling to be overturned, overturning Wickard in this case would have sweeping ramifications that I don't believe this court wants to unleash.
Quote:
Originally Posted by pollyrobin
The new law might want everyone's participation
to make it work (to pay for it) but the federal government can't force an individual to buy a private product to make that happen. And then, fine them by the IRS for not doing so.
The federal government does not have that power under
the commerce clause - never has, never will.
Wish that were true. And the inability to compel an individual from buying just any old private product, say, shoes, for instance, was dealt with under Lopez. There must be a compelling economic reason for Congress to exert that power. And in the case of Health Care, since it is a commodity that absolutely affects economic commerce, under Wickard Congress has that power.
Quote:
Originally Posted by pollyrobin
The Federal government does not have the power to mandate a citizen buy a PRIVATE product or force a citizen to engage in PRIVATE contracts.
Doesn't matter whether Congress believes the mandated product/contract insures the success of a law or not. They simply do not have that authority and that can never become the law of the land.
See Wickard. See Lopez. See also Morrison.
Quote:
Originally Posted by pollyrobin
That is exactly why the argument to guarantee success of anti discrimination against preexisting conditions doesn't fly either. A person that is never sick, does not go to a doctor or hospital yesterday, today, or tomorrow has no affect on the PRIVATE insurance industry or interstate commerce. One can not be mandated to buy a private product they neither need, nor want, to offset the costs of someone else who has a pre existing condition. It legally doesn't matter if that regulation Congress imposes on the Insurance Company can be fulfilled or not, simply because the Congress does not have the power to mandate purchase of a private product/contract by a citizen.
It's like the person who owns a car, but never drives it off their property - even the state can't mandate you buy private car insurance in that case, regardless if accidents are on the rise on the public road and insurance companies are paying out claims left and right, increasing the cost of premiums to all public bad drivers.
The person who doesn't drive a car isn't affecting economic commerce by not driving. The person (such as Filburn), who doesn't participate in the open market for a product, where that lack of participation affects economic commerce, can be compelled to do so.
. . . in order that economic commerce not be adversely affected. It mattered not that Filburn was already a farmer. It mattered that beyond the limits he was allowed to grow, he grew wheat for his own personal consumption, which kept him out of the open market. That's what the opposition is arguing, but they aren't correct. Wickard unanimously found that, not only was there inactivity on the part of Filburn (by way of not buying wheat on the open market), but that him alone not buying wheat wasn't at issue so much as the aggregate result of thousands (or millions) of non-participants in the open market substantially affecting commerce. They didn't know or care whether all these other thousands (or millions) of non-participants were actually farmers. They found that the government had the power to compel participation in the open market of a commodity, when non-participation in the aggregate could cause serious harm to the economy.
Frankly, it's a terrible ruling. But it's established law now, and has been for nearly 70 years. Would that that were true, but that isn't what Wickard says.
Your arguments are all good -- against Wickard. Which is why if the Supreme Court wants to now draw a line, it will necessarily be an arbitrary line, otherwise they will have to throw out Wickard. And while it's not unheard of for a long-held ruling to be overturned, overturning Wickard in this case would have sweeping ramifications that I don't believe this court wants to unleash. Wish that were true. And the inability to compel an individual from buying just any old private product, say, shoes, for instance, was dealt with under Lopez. There must be a compelling economic reason for Congress to exert that power. And in the case of Health Care, since it is a commodity that absolutely affects economic commerce, under Wickard Congress has that power.
See Wickard. See Lopez. See also Morrison. The person who doesn't drive a car isn't affecting economic commerce by not driving. The person (such as Filburn), who doesn't participate in the open market for a product, where that lack of participation affects economic commerce, can be compelled to do so. I'm afraid he didn't.
So you think it's going to have to come down to the court throwing out the Wickard case if they go after this? Really? That's like dropping a nuclear bomb. I'm not an attorney--this is interesting.
You do know, I am for Medicare for all
as long as I have to pay taxes
Well that is such a good idea but since we can't afford Medicare for the ones who have it now maybe free medicine won't work for over 300 million. Of course, taking $50 billion from Medicare to pay part of the cost for the incoming newbies maybe tells us that we can't afford what you want to see.
So you think it's going to have to come down to the court throwing out the Wickard case if they go after this? Really? That's like dropping a nuclear bomb. I'm not an attorney--this is interesting.
I have read the wickard case....and I'm still wondering what that case has to do with anything in obamacare? Or how that case is even revelant....
I've read, all the links and the blabber about it....and what?
A law was made before the farmer planted anything, he agreed to the law...he broke the law and lost.....
How does that equate to anything with obama care...............
I have read the wickard case....and I'm still wondering what that case has to do with anything in obamacare? Or how that case is even revelant....
I've read, all the links and the blabber about it....and what?
A law was made before the farmer planted anything, he agreed to the law...he broke the law and lost.....
How does that equate to anything with obama care...............
Because of how the court ruled in that case. It's the ruling and its application that matters.
The court ruled that Congress had the power, based on Article 1, Section 8 of the U.S. Constitution's Commerce Clause, to regulate a private citizen's participation or lack there-of, in areas that effect the economy.
It's got nothing to do with wheat.
It's got everything to do with what powers that ruling clarified were afforded to Congress.
Last edited by Jill61; 02-04-2011 at 12:46 PM..
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