Tuesday, March 27, 2012

Scotus / Obamacare

I genuinely don't know what to think about the constitutionality of the mandate.Whereas conservatives have made up tales about how awful the ACA will be because the gub'mint is so evil, I have little doubt that we'd be better off with the act as law. However, I'm sympathetic to arguments that this application of the interstate commerce clause would be unique, and that it edges in the direction of a radical expansion of government power.

See, here's where I would like to have a Supreme Court that I could trust. I could just wait for their ruling and let that be that. However, I simply don't believe that we'll get dispassionate analysis/objective judgment from Scalia, Thomas or Alito. (How partisan/ideologically-motivated are the liberals on the court? I've never had a very good sense of that...)


Blogger The Mystic said...

Dude. Surely you know as well as I that the Commerce Clause is one of the most, if not THE most, abused clauses in the Constitution.

In Gonzales v. Raich, for example, the Supreme Court ruled that the commerce clause can reasonably be applied to allow the government to criminalize the production and use of home-grown cannabis, not intended for sale, even locally.

For the righties to start crying foul on account of some sort of overreach in regards to that clause nauseates me.

In Gonzales v. Raich, the Court concluded in such a way that renders the "interstate" right out of the Commerce Clause. Scalia claimed that the Commerce Clause gives the government power to regulate even homegrown marijuana not intended for sale or distribution because it is likely that "high demand in the interstate market will draw such marijuana into the market."

It's absolute absurdity.

When we're irrationally restricting freedom, no one on the right cries foul. No complaints from the right when the government uses the Commerce Clause to control even what we produce for our own sake in our own residence, with no intent to engage in any commercial activity whatsoever. But when the government wants to require people to be covered by health insurance as a part of a plan to extend said insurance to everyone? Fuck that! OMG GO INSANE!

It is truly sickening.

7:15 PM  
Blogger tehr0x0r said...

Having just covered this in con law it seems to me that under the absurdly stretched modern take on the commerce clause that has been taken in recent years by the court the mandate should be upheld. As Mystic points out and I have talked to him about before, the ruling in Gonzales is absurd, however it is the logical extension of historical rulings. See, e.g., Houston, E. & W. Tex. Ry. v. United States (The Shreveport Rate Cases), 234 U.S. 342 (1914) (holding that Congress could regulate the rates charged by an entirely intrastate rail road line because the rates charged by the rail road affected the rates of lines that went to other states), Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that just because a single small restaurant that got all supplies locally and was on a small local road that received no interstate customers or so few that they couldn’t be demonstrated to the court was not beyond the power of Congress to regulate because the cumulative effect of many small restaurants could have an impact on interstate commerce). Thus it would seem anything is interstate commerce and thus within the power of congress to regulate.
That said there are many counter rulings by conservative justices that don’t overrule old law but don’t seem to match the general trend of the law just because they don’t like the specific law. Compare United States v. Darby, 312 U.S. 100 (1941) (holding that national minimum wage laws were acceptable and could apply to companies that sold only to intrastate residents because while a single employer engaged in such business couldn’t affect the national market many such employers could) with National League of Cities v. Usery, 426 U.S. 833 (1976) (C.J. Rehnquist) (holding that state employees were exempt from national minimum wage because they worked for a state government and the federal government couldn’t regulate the states spending powers by forcing them to pay a higher wage). Note National League of Cities was overruled just nine years later by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
The overall point here is that while I think it is fairly clear that under a modern reading of the commerce clause the entire law is valid. However the Supreme Court almost never overrules an old case, they just make exceptions, thus if you want case law to support your position on a commerce clause issue you can probably find it. I wouldn’t be surprised if the conservatives on the court somehow struck down the individual mandate.
On another note related to Mystic’s point about the absurdity of the Gonzales ruling in United States v. E.C. Knight Co., 156 U.S. 1 (1895), the court found that “Commerce succeeds to manufacture , and is not a part of it”, the court went on to say that manufacturing “affects commerce only incidentally and indirectly”. Thus the Justice Department could not stop a huge sugar refining company from buying other companies because all the company did was manufacture so it was outside of the power of congress. However in Wickard V. Filburn, 317 U.S. 111 (1942) the court, without overruling XXX, found that congress could regulate the production of a small farmer who grew crop for personal use for his horses in excess of his quota allowed by the Agricultural Adjustment Act of 1938 because by growing his own crop he took his own demand out of the national market and if many people did this they would affect interstate commerce.

1:20 PM  
Blogger tehr0x0r said...

So the format isn't great, didn't copy over well from word and I forgot to actually put the case back into the last paragraph, it should read without overruling E.C. Knight Co. Its cited to the blue book which is what lawyers use and given that I realized that I used signals that not everyone will know, e.g. just means that there are many cases that state the same thing but listing them all would be pointless. The lack of italics also makes some of the signals less clear than they could be.

3:18 PM  
Blogger Winston Smith said...

Thanks for this. Katzenbach is always the case I think of--an expansive, though, to my ear, implausible-sounding--interpretation of the commerce clause was used to do real, important good...

...Still, I do fear such a protean view of the Constitution...

Still, what matters now is not how it ought to be interpreted, but how it has been...or so I guess.

This is very helpful to me.

3:59 PM  
Blogger tehr0x0r said...

Sure thing. The problem with Katzenbach is that it shouldn't have been a commerce clause case it should have been a 14th amendment case. I think the case did a ton of good, I just think the grounds it was decided on were a bit off and were an unjustifiable expansion of the situations in which the commerce clause could be used.

4:07 PM  

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