dagblog - Comments for "Federal Judge Rules Part Of Health Care Law Unconstitutional"

Jeffrey Toobin:....About two

artappraiser — Tue, 14 Dec 2010 14:15:47 +0000

Jeffrey Toobin:

....About two dozen other challenges are in the legal pipeline, and it’s likely that other judges will agree. (Two judges have already upheld the law.) Clearly, the last word on the law will belong to Breyer and his colleagues, probably some time next year.

One particular section of Judge Henry Hudson’s decision yesterday drew my attention. In my Breyer piece, I noted a decision Breyer wrote earlier this year, United States v. Comstock....the subtext was...: the scope of the power of the federal government to pass legislation. Breyer provided a broad conception of federal power, and it wasn’t difficult to read between the lines....

Read more
http://www.newyorker.com/online/blogs/newsdesk/2010/12/health-care-refor...

Interesting article...the

Beetlejuice — Tue, 14 Dec 2010 10:45:44 +0000

In reply to Thanks for sharing what you

Interesting article...the judge basically blows it out of the water over the way the Senate used Commerce Clause, but his argument is not convincing. Sounds more like political appeasement.

Good deal! I'm interested to

Beetlejuice — Tue, 14 Dec 2010 10:42:37 +0000

In reply to Thanks for sharing what you

Good deal! I'm interested to see the legal angle. I sure hope it isn't rank with bipartisanship capitulations.

I think the real problems the States have is precedence. For example, during WWII, there was rationing of just about everything to support the war effort imposed by the federal government. I believe the Constitution is silent about Congress's right to impose such measures. I get the impression this State's Rights issue is being applied whimsically more by GOPer politics at the State level than by the real issue of a State's Right in a federal governing system. Also there's the issue where some red States are arguing they should be allowed to either confirm or deny federal laws being implemented in their States too. It boils down to GOPer's wanting to go it alone if they don't control Congress and the White House. There's a serious fracture in our political system and the courts are the avenue being used to make it even wider.

Thanks for sharing what you

artappraiser — Tue, 14 Dec 2010 00:28:50 +0000

In reply to I've Wiki'ed-up for

Thanks for sharing what you looked up.

After seeing your stuff, I went over to SCOTUS BLOG and found that Lyle Dennison has put up a post, goes over the territory with more detail:

http://www.scotusblog.com/2010/12/health-care-mandate-nullified/

He answers one of my questions ar the end:

And, in refusing Virgina’s specific request, if the mandate failed, to block its implementation, the judge said “there are no compelling exigencies in this case.” The mandate does not take effect until 2013 at the earliest, and, the judge added, federal trial judges are generally reluctant to impose a hard-and-fast, do-not-enforce order on federal officials who have been told that a law is invalid. The officials can be expected to follow the law, even without an injunction, the judge concluded.

I've Wiki'ed-up for

Beetlejuice — Mon, 13 Dec 2010 22:46:28 +0000

In reply to Federal Judge Rules Part Of Health Care Law Unconstitutional

I've Wiki'ed-up for this.

The Commerce Clause is an enumerated power in the Constitution (Article I, Section 8, Clause 3) that states that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". It is often paired with the Necessary and proper Clause so the combination can be used to take a broad, expansive perspective of these powers.

Now the Necessary and Proper Clause...also known as the Elastic Clause...is the provision in Article 1, section 8, clause 18:

The Congress shall have the 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, or any Department or Officer thereof.

I think foregoing Powers are the enumerated powers found in the Bill of Rights that set forth the authoritative capacity of Congress. They may exercise only those powers that are granted to it by the Constitution, further defined by the Bill of Rights and other protections found in the Constitutional text.

Here's where the tire and pavement meet.

In the case McCulloch v. Maryland, although the court held that all Federal laws need not be "absolutely necessary" to be necessary and proper and noted "The clause is placed among the powers of Congress, not among the limitations on those powers," it also noted "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

Quite an interesting development here.

However....

In 1917, under substantial pressure from the temperance movement, the Senate proposed the Eighteenth Amendment...Prohibition. Interesting that prohibition of any sort is not a power enumerated in the Constitution for the Congress to exercise...it was a State issue. I do find it odd on one hand the Congress is allowed to pass legislation for a change to the Constitution that takes away a public privilege to consume a beverage of choice, yet on the other hand all hell breaks loose if they create legislation, but not a Constitutional change, for mandatory health insurance.

How can one justify allowing the federal government to enact a change to the Constitution making it illegal manufacture and consume alcohol, which was and still is a State issue...ever see a federal government liquor store in your neighborhood? But today the thought of the federal government mandating people to carry health insurance is a step too far?

I think the key issue here is...Congress, under the pretext of executing its powers, passing laws for the accomplishment of objects not intrusted to the Government.

So if the States insist on being the final arbitrator of the health care issue...fine. But health care isn't confined to a single State. Remember Palin's parents hopped across the border into Canada for health care? And I'm sure there are many more instances where people who live at their State's borders slip across for health care needs because it's closer than health care facilities in their State. And how about patients in need of specialists that aren't available in the State? So if a State can prove they are capable of handling all, not some or most, of their citizens health care needs internally, then they should be allowed to opt-out of federally mandated health care. But just how many States are that well equipped to service their patients needs? Especially when it comes to organ transplants?

So I think the federal government has a good case for using the Commerce Clause if they stick to the melding of medical, hospital, specialist, staff and patients that migrate between States' borders to provide people the health care they need.

But we're talking about the Obama Administration here. I suspect the only way the GOPer's would go along with Obama on this one would be if he held a news conference and admitted he was a closet muslim.

And I guess that same

tmccarthy0 — Mon, 13 Dec 2010 20:21:01 +0000

In reply to Federal Judge Rules Part Of Health Care Law Unconstitutional

And I guess that same federal judge according, to Huff and Gawker is an investor/owner in a GOP political consulting, [Campaign Solutions, Inc, a part of the Hockaday-Donatlli group] firm that worked against the health reform bill.

http://gawker.com/5713041/judge-who-ruled-health-care-reform-unconstitut...

http://www.sourcewatch.org/index.php?title=Donatelli_Group

Swell.From Kevin Sack @ the

artappraiser — Mon, 13 Dec 2010 18:09:36 +0000

In reply to Federal Judge Rules Part Of Health Care Law Unconstitutional

Swell.

From Kevin Sack @ the NYT:

Lawyers on both sides said the appellate process could last another two years before the Supreme Court settles the dispute.

The opinion by Judge Hudson, who has a long history in Republican politics in northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it.

What a friggin' mess. What does this mean?

Everybody involved from patients with pre-existing conditions to companies making plans on the health coverage they offer to employees, to the entire health care and health insurance industries (a hefty percentage of GDP) is put into limbo for two years not knowing what the future holds? At a time when the economy is very fragile? Am I right?

Is it possible for the new Congress to just scrap it or change it while this is going on? Or must they wait for the appeal process? Not sayin' that I would approve or disappove of that, just trying to get a handle on what can happen and what can't.