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Tuesday, June 26, 2012

OT-P: President Obama Booed After Thanking Boston For Kevin Youkilis « CBS Boston

Political loyalties aren’t as strong as team loyalties.


NOTE: As I discussed in the Off-Topics, Politics, and the Redesign thread, in the redesign I’m making non-baseball content opt-in. Until the redesign is done (about two months), I’m designating one thread each month (similar to the basketball and soccer threads) as Off-Topic Politics (OT-P) and will restrict off-topic political conversations to that thread. Off-topic political comments which appear in other threads will be deleted. Since this thread has been highjacked, I’m designating this thread as the June OT-P thread.

Jim Furtado Posted: June 26, 2012 at 06:52 AM | 1396 comment(s) Login to Bookmark
  Tags: red sox

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   801. Tulo's Fishy Mullet (mrams) Posted: June 28, 2012 at 11:19 PM (#4169165)
Candidly, I think the reason many in the press botched the holding in this case at the outset, is due to the length devoted by Roberts to shoot down the Commerce Clause argument, and his frankly thin defense of the mandate being a tax. I know this means nothing in the grand scheme of what the holding is (it's the law now), but if you're going to declare the mandate a tax, Roberts didn't do a very good job of defending it IMO.

Efforts to be 'first' once again (much like in the embarrassing first twenty minutes on TV following Bush v Gore) really made a lot of networks look bad (not like that doesn't happen weekly anyways). You grab this 190 page slip and it carries on and on about how the CC argument stinks and then finally we get to the surprise, its a tax.
   802. PreservedFish Posted: June 28, 2012 at 11:23 PM (#4169168)
It's been hours since the last comment in some of the other hot topics threads - I wonder what the ratio of politics comments to baseball comments was on this site today? 5:1?
   803. tshipman Posted: June 28, 2012 at 11:26 PM (#4169170)
The suddenly sheik interpretation by liberal analysts is that John Roberts has followed in the footsteps of Rehnquist and Charles Evans Hughes back in FDR's day.... that Roberts had to play a bit of bigger picture thinking here, essentially agreeing with the conservative arguments, but thinking that this was a dangerous case for the court to just outright strike. In other words - Roberts had to referee a "4-1-4" decision.


I said that in this thread. People were skeptical about the "backlash" argument.


Can we agree that:
a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power; and


No. Congress has the right to regulate interstate commerce. The nature of interstate commerce has changed greatly in the last 200 years, making it much more prevalent than it used to be. Limited federalism is not an option for a modern country. The power to regulate commerce has a number of restrictions on it--most notably that you can be voted out.

b) upholding Obamacare under the commerce clause would have amounted to an unprecendented expansion of their power under this clause?


No, it would have amounted to a reading of the Constitution that is consistent with jurisprudence of the last 75 years, including cases like Raich, Wickard, Heart of Atlanta, and others.

As defined in Lopez, these are the powers of the Commerce Clause as understood in 2009 and articulated by Rehnquist:
First, Congress may regulate the use of the channels of interstate commerce;
Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities;
Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).

PPACA/Obamacare clearly falls in the final two categories. The activity/inactivity distinction is meaningless, as not buying insurance surely has a substantial relationship to interstate commerce.

   804. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: June 28, 2012 at 11:31 PM (#4169171)
Fair enough, but if Scalia can't take the heat (and I'm not saying that he can't), he can always retire to hunt ducks with Dick Chaney.

Congratulations, Andy. This is the first spelling mistake I've seen you make in half a decade.


Ouch! My only excuse is that the most right wing woman I've ever known is a cousin of mine in South Carolina whose family name was Chaney (and ironically, whose father was a draft resister in WWI) rather than Cheney. Needless to say, she's a big fan of his.

This goes for any Supreme Court justice, but especially those who are as outspokenly political and partisan as Scalia.**

How is Scalia any more partisan than Ginsburg or Souter or whoever?


In his repeated outspokenness outside the courtroom and in his hyperactive language he far outdoes those two. But if you'd noticed my footnote you'd have seen that I mentioned William O. Douglas as a liberal counterpart.

--------------------------------------------------------

Krauthammer's another conservative who gets that this is ultimately something to be decided by elections and not by judicial fiat, even if he would've ruled differently himself:

That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory, and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice, and not the chief. But that’s how he did rule.

Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.


The full column
   805. David Nieporent (now, with children) Posted: June 28, 2012 at 11:32 PM (#4169172)
True, but it's somewhat misleading not to mention that the Supreme Court also overturned a federal child labor law in Hammer v. Dagenhart,
No, it isn't. The whole point of the discussion was liberty of contract. That was a commerce clause case, and was precisely what was being contrasted.
a 1918 decision that wasn't effectively overturned until the U.S. v Darby Lumber Company case in 1941. It's as if the Supreme Court had upheld state civil rights laws but overturned the 1964 Civil Rights Act, leaving the interests of southern blacks to the whims of the Dixiecrat state legislatures.
No, it isn't. Every state had child labor laws.
   806. zonk Posted: June 28, 2012 at 11:34 PM (#4169175)
Apparently the right is upset because Obama said this wasn't a tax, but then his administration went out and argued it (in part) as a tax, and then the court upheld it as a tax.

Shrug. John Sterling says "That's baseball!" Well, this is politics.

Whether the Republicans can make any hay with this in the election - who knows.


I don't think the bolded part was true -- in fact, IIRC, that was one of the arguments many people used in saying that Verrilli had blown the case during oral arguments... that several justices were trying to lead him to that place (including Roberts, I think) but Verrilli wasn't properly embracing that position and kept instead falling back on Commerce Clause interpretations.

While it's true that Robert's written reasoning conflicts with the message Team Obama wanted, I think that the administration -- and Solicitor General to the point of peril in arguing the case -- was pretty consistent in its argument.

   807. Ray (RDP) Posted: June 28, 2012 at 11:35 PM (#4169176)
PPACA/Obamacare clearly falls in the final two categories. The activity/inactivity distinction is meaningless, as not buying insurance surely has a substantial relationship to interstate commerce.


That's an economic argument, not a legal one. It's not based on the framer's intent or on precedent. The Constitution empowers Congress to "regulate" interstate commerce, not to force people to engage in it.


   808. escabeche Posted: June 28, 2012 at 11:56 PM (#4169178)
It's certainly based on the precedent of Heart of Atlanta. In that case, the Court ruled that hotel owners couldn't refuse to serve blacks; not because Congress has the inherent power to regulate how firms in Atlanta do business (it doesn't) but because the practice of excluding blacks was held (by, as you say, an economic argument) to be disruptive to the ability of people to travel from state to state. The operation of the hotel was not the "commerce" that was being "regulated"; nor is the purchase of health insurance by an individual the commerce that's being regulated in this case, as far as the Constitutional requirement is concerned.

Now you may feel that the justification of Heart of Atlanta by the Commerce Clause is very, very tenuous; you'd be far from alone. But I don't think the majority means to overturn Heart of Atlanta, which is cited in Roberts' opinion without any hint of objection as established Commerce Clause precedent. If the Court no longer thinks Congress has the power to enforce the Civil Rights Act of 1964, that's big news, but I don't think that's the case.

   809. tshipman Posted: June 28, 2012 at 11:56 PM (#4169179)
That's an economic argument, not a legal one. It's not based on the framer's intent or on precedent. The Constitution empowers Congress to "regulate" interstate commerce, not to force people to engage in it.


No one is forced to purchase insurance. They must either purchase insurance, or pay a fine. You cannot be thrown in jail, for example, for not purchasing insurance. As for precedent, it's entirely consistent with Raich and Wickard. The people who do not purchase insurance are still participating in an interstate market for insurance--their actions directly affect the price other people pay, like Wickard's chicken feed. As there is no specific "freedom to not purchase insurance" enumerated in the Bill of Rights, it's appropriate for Congress to regulate it.

As far as framer's intent: on the contrary! Direct examples exist of the founders using Mandates as a means of enforcing bills.

In the Militia Act of 1792, Congress forced Americans to buy guns (signed by George Washington)

Similarly, in 1790, shipowners were required to buy insurance for their crews.

In 1798, the law was expanded to require individuals to purchase hospital insurance for themselves.

   810. Ray (RDP) Posted: June 29, 2012 at 12:13 AM (#4169185)
No one is forced to purchase insurance. They must either purchase insurance, or pay a fine. You cannot be thrown in jail, for example, for not purchasing insurance.


Why is the line drawn at being thrown in jail? They're being forced to purchase insurance; if they don't, they pay a fine. That is being "forced."

What about a law that says any couple having sex who has a combined income of under $15,000 per year must use birth control or pay a fine? After all, if a child is born, the couple has little means to pay for the child, which means that other people have to pay, and so the couple having sex without birth control is "affecting interstate commerce." Would you say "Nobody is being forced; nobody is being thrown in jail; they must either use birth control or pay a fine"?

As for precedent, it's entirely consistent with Raich and Wickard. The people who do not purchase insurance are still participating in an interstate market for insurance--their actions directly affect the price other people pay, like Wickard's chicken feed. As there is no specific "freedom to not purchase insurance" enumerated in the Bill of Rights, it's appropriate for Congress to regulate it.


It was Filburn's chicken feed, and it wasn't chicken feed but was wheat. Regardless, while the Court overreached, Filburn, at least, was doing something. He was acting. What is the case you can cite in which the person wasn't acting?
   811. rr Posted: June 29, 2012 at 12:24 AM (#4169189)
Good discussion, guys.
   812. Chicago Joe Posted: June 29, 2012 at 12:32 AM (#4169190)
In 1798, the law was expanded to require individuals to purchase hospital insurance for themselves.


Damn communists!
   813. tshipman Posted: June 29, 2012 at 12:45 AM (#4169198)
It was Filburn's chicken feed, and it wasn't chicken feed but was wheat. Regardless, while the Court overreached, Filburn, at least, was doing something. He was acting. What is the case you can cite in which the person wasn't acting?


Sorry, Filburn. The chicken feed is the whole point--by growing wheat, he wasn't buying chicken feed. That's the action that allowed him to be regulated. That's inactivity.


Why is the line drawn at being thrown in jail? They're being forced to purchase insurance; if they don't, they pay a fine. That is being "forced."


No, it's really not. When the government forces you to do something (like not kill people, for instance), it has a way of enforcing that order. Requiring someone to pay a fine that cannot exceed 2% of your income, and can only be forcibly collected from your income tax refund is not "forcing" someone to do anything.

What about a law that says any couple having sex who has a combined income of under $15,000 per year must use birth control or pay a fine? After all, if a child is born, the couple has little means to pay for the child, which means that other people have to pay, and so the couple having sex without birth control is "affecting interstate commerce." Would you say "Nobody is being forced; nobody is being thrown in jail; they must either use birth control or pay a fine"?


First of all, the best limit on such a law is that congress will never pass it. So your hypo is somewhat ridiculous.

Granting the premise, however, and taking things one by one.
Next, purchasing birth control is only secondarily related to having a child--i.e., you can still have a child when using birth control, it just makes it less likely. Since your enforcement is impossible, and would involve unreasonable searches to enforce, your law is likely to be struck down.

Thirdly, your law would most likely be invalid under Equal Protection challenges. Your law would disproportionately affect minorities, and would most likely be subject to strict scrutiny, so it would be likely to be struck down.

Finally, even if you were talking about 100% effective birth control that didn't require searches to ensure use and had no equal protection issues, the court has recognized a right to privacy. You may disagree with this, but it's fairly well established in precedent.
   814. Tripon Posted: June 29, 2012 at 12:49 AM (#4169199)
Sorry, Filburn. The chicken feed is the whole point--by growing wheat, he wasn't buying chicken feed. That's the action that allowed him to be regulated. That's inactivity.


I would be fine if we adopted a sort of castle doctrine for home activity, for obviously unillegal stuff like growing your own crops at home.
   815. tshipman Posted: June 29, 2012 at 12:56 AM (#4169207)
I would be fine if we adopted a sort of castle doctrine for home activity, for obviously unillegal stuff like growing your own crops at home.


Like, say ... a crop of Marijuana?

Scalia & co. (except Thomas) were for Wickard before they were against it.
   816. David Nieporent (now, with children) Posted: June 29, 2012 at 12:56 AM (#4169208)
No one is forced to purchase insurance. They must either purchase insurance, or pay a fine. You cannot be thrown in jail, for example, for not purchasing insurance.
You cannot be thrown in jail for jaywalking, but that doesn't mean that you're not forced to cross at the crosswalk. The nature of the penalty is an entirely separate question from whether you're forced to do it.
As for precedent, it's entirely consistent with Raich and Wickard. The people who do not purchase insurance are still participating in an interstate market for insurance--their actions directly affect the price other people pay,
This is a bunch of gibberish and non-sequiturs strewn together. The people who do not purchase insurance aren't participating in anything. Anybody's not-buying-something directly affects the price other people pay for it, but that has absolutely nothing to do with whether one is participating in the market in it.
like Wickard's chicken feed. As there is no specific "freedom to not purchase insurance" enumerated in the Bill of Rights, it's appropriate for Congress to regulate it.
As there is no specific "power to mandate the purchase of insurance" enumerated in Article I, it's inappropriate for Congress to do so.

In the Militia Act of 1792, Congress forced Americans to buy guns (signed by George Washington)
Not a commerce clause matter, and thus utterly irrelevant. (And it didn't require that anyone buy anything; it forced militia members to have guns.)

Similarly, in 1790, shipowners were required to buy insurance for their crews.

In 1798, the law was expanded to require individuals to purchase hospital insurance for themselves.
Both of these claims are false. There was no "insurance" at all here. The 1798 act was simply a tax levied on sailors engaged in international commerce, which the government could spend on health care for sailors. In other words, it's analogous to Medicare, not to Obamacare's mandate. It was not a commerce clause matter at all. The 1790 act was a commerce clause matter -- but it required shipowners of a certain size engaged in commerce to either have medicine on their ships (not to even give it to their employees!) or to pay for the care of their employees. No insurance, and no requirement that individuals not engaged in commerce do anything.
   817. Kurt Posted: June 29, 2012 at 12:59 AM (#4169211)
So did anyone anywhere predict this result, a 5-4 decision upholding the mandate as a tax, but not under the commerce clause, with Roberts siding with the liberal justices?

I forget where I read this, but when it became apparent that Roberts would write the decision, one commenter took this as a sign that the mandate would be upheld. The reasoning was that Roberts would side with the pro-ACA side so that he could construct a decision that would be more narrow than one authored by a Ginsburg or Souter.
   818. David Nieporent (now, with children) Posted: June 29, 2012 at 01:01 AM (#4169212)
Why is the line drawn at being thrown in jail? They're being forced to purchase insurance; if they don't, they pay a fine. That is being "forced."

No, it's really not. When the government forces you to do something (like not kill people, for instance), it has a way of enforcing that order. Requiring someone to pay a fine that cannot exceed 2% of your income, and can only be forcibly collected from your income tax refund is not "forcing" someone to do anything.
Yeah, it really is. A law that only has a small punishment for violating it is still a law.
   819. David Nieporent (now, with children) Posted: June 29, 2012 at 01:17 AM (#4169214)
The reasoning was that Roberts would side with the pro-ACA side so that he could construct a decision that would be more narrow than one authored by a Ginsburg or Souter.
No, I'm pretty sure that one authored by Souter would have been far narrower...
   820. David Nieporent (now, with children) Posted: June 29, 2012 at 01:40 AM (#4169219)
On a completely unrelated note, from the New York Times story about the anti-semitic Elmo:
The tale he told underscored just how little is known about the men and women who dress as various children’s characters in tourist-clogged areas, looking for small tips. This tiny industry is unregulated.
Emphasis added. What would prompt someone to write that last part?
   821. greenback calls it soccer Posted: June 29, 2012 at 01:52 AM (#4169220)
What would prompt someone to write that last part?

Making Hutcheson giggle at the trolled libertarians?
   822. bobm Posted: June 29, 2012 at 04:43 AM (#4169230)
[702] On a unrelated note, what is with the current trend of people seeking the nomination of their party when they're not even liked by their home state or people?

Texans can't stand Rick Perry, Mass. doesn't even remember that Mitt Romney was their governor, and Santorum was sent on the last train to hicksville by the people of Penn.


From: http://www.fec.gov/pubrec/2000presgeresults.htm

"2000 Presidential General Election Results

STATE ...  BUSH ... GORE ...
   TN 1,061,949. 981,720


...

ADDRESSES AND PARTY DESIGNATIONS OF 2000 PRESIDENTIAL CANDIDATES ON THE GENERAL ELECTION BALLOTS

Al Gore (D, DFL, DNL, L, WF)
Gore/Lieberman, Inc.
601 Mainstream Drive
Nashville, TN 37228
http://www.algore.com/
615/340-2000"
   823. Dr. Vaux Posted: June 29, 2012 at 04:56 AM (#4169231)
I like the subsidies and like the pre-existing condition provision, but I dislike the mandate. I don't know enough to have any idea whether the mandate really has to be in the bill for the bill to have been passed, and I'm undecided about whether the mandate is an acceptable tradeoff for the bill's other provisions. Basically, I don't have a strong opinion one way or the other, which seems weird. Perhaps I'm incredibly naive to think this, but could this open the door for is other "taxes" for not buying other consumer products whose makers take it into their heads to get a sweetheart deal with the government? I could see the pharmaceutical industry convincing congress that it's a public health crisis how few children are given vitamins, for example. It seems far fetched, yet somehow not so far fetched.
   824. bobm Posted: June 29, 2012 at 07:01 AM (#4169239)
[739]
Apparently they don't, but for the love of god please do not go here.

That thread was awesome and you know it.

Also (and I've posted this before) apparently ZIP Codes are fractals


I could not resist quoting this from the posted link: (http://www.wired.com/wiredscience/2012/01/the-fractal-dimension-of-zip-codes/)

I was able to calculate the fractal dimension of the ZIP Code system, using the ZIPScribble: 1.78. ...

ZIP codes serve every resident without having a code for every point on the plane and, at least according to this method, describe a shape that is somewhere between a line and a two-dimensional plane, though closer to a two-dimensional surface.
   825. Benji Gil Gamesh Rises Posted: June 29, 2012 at 07:35 AM (#4169242)
The suddenly sheik interpretation by liberal analysts is that John Roberts has followed in the footsteps of Rehnquist and Charles Evans Hughes back in FDR's day.... that Roberts had to play a bit of bigger picture thinking here, essentially agreeing with the conservative arguments, but thinking that this was a dangerous case for the court to just outright strike. In other words - Roberts had to referee a "4-1-4" decision.
Noted liberal Charles Krauthammer agrees with this argument.

(Sheik? Assume that was meant to be "chic"?)
   826. Rickey! trades in sheep and threats Posted: June 29, 2012 at 07:36 AM (#4169243)
Speaking of which, for those who favor an all-expansive view of the Commerce Clause (or simply don't care about the text or intent of the Constitution), do you think there should be any limits on federal government power?


Could you explain to me how "caring about the text" of the Constitution leads to a narrow reading of the Commerce Clause? Please quote the text of the Commerce Clause in your answer, where applicable.
   827. Rickey! trades in sheep and threats Posted: June 29, 2012 at 07:37 AM (#4169244)
By liberals.


As opposed to the voices of persecution in Ray Ray's head?
   828. Rickey! trades in sheep and threats Posted: June 29, 2012 at 07:39 AM (#4169245)
This doesn't make sense. If one believes in personal freedom, then the so-called "rights" of people to "baseline welfare" can't infringe on that.


Ray, the fact that you preference a certain set of rights as "personal freedom" over another set of rights doesn't mean everyone does.
   829. Rickey! trades in sheep and threats Posted: June 29, 2012 at 07:45 AM (#4169246)
That's an economic argument, not a legal one. It's not based on the framer's intent or on precedent. The Constitution empowers Congress to "regulate" interstate commerce, not to force people to engage in it.


Requiring people to engage in commerce is a regulatory process of commerce.

You seem to want the text to say something it does not actually say, Ray.
   830. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: June 29, 2012 at 07:46 AM (#4169247)
The Supreme Court of that era upheld state laws against child labor, no matter how many times sanctimonious liberals try to pretend otherwise.

True, but it's somewhat misleading not to mention that the Supreme Court also overturned a federal child labor law in Hammer v. Dagenhart, a 1918 decision that wasn't effectively overturned until the U.S. v Darby Lumber Company case in 1941. It's as if the Supreme Court had upheld state civil rights laws but overturned the 1964 Civil Rights Act, leaving the interests of southern blacks to the whims of the Dixiecrat state legislatures.

No, it isn't. The whole point of the discussion was liberty of contract. That was a commerce clause case, and was precisely what was being contrasted.


That's an interesting legal distinction, but the fact remains that the Supreme Court threw out the first federal law regulating child labor, and that ruling stayed in place for 23 years.

a 1918 decision that wasn't effectively overturned until the U.S. v Darby Lumber Company case in 1941. It's as if the Supreme Court had upheld state civil rights laws but overturned the 1964 Civil Rights Act, leaving the interests of southern blacks to the whims of the Dixiecrat state legislatures.

No, it isn't. Every state had child labor laws.


In 1916 state laws, such as they existed, were wildly disparate in terms of both scope and enforcement, which is why Congress enacted the Keating-Owen law in the first place. Had those state laws provided uniform protection for children, the federal law wouldn't have been necessary. And while you're a most impressive lawyer, you can't re-write history and pretend that prior to 1941 the Supreme Court was sympathetic to federal child labor laws.
   831. David Nieporent (now, with children) Posted: June 29, 2012 at 08:01 AM (#4169249)
That's an interesting legal distinction,
Which was the entire point of the exchange.

Had those state laws provided uniform protection for children, the federal law wouldn't have been necessary.
Who said that the federal law was necessary? Why do you think the fact that the federal government does something means that it was "necessary"? Congress likes to outlaw unpopular things, regardless of how uncommon they are or how illegal they already are.
   832. Rickey! trades in sheep and threats Posted: June 29, 2012 at 08:02 AM (#4169251)
In 1916 state laws, such as they existed, were wildly disparate in terms of both scope and enforcement, which is why Congress enacted the Keating-Owen law in the first place. Had those state laws provided uniform protection for children, the federal law wouldn't have been necessary. And while you're a most impressive lawyer, you can't re-write history and pretend that prior to 1941 the Supreme Court was sympathetic to federal child labor laws.


I think you're missing the forest for the trees here, Andy. David doesn't care that the laws were "wildly disparate in terms of both scope and enforcement." For him, that's a feature, not a bug. David preferences the freedom of states to not be directed by the Federal state (i.e. to come up with disparate, hodge-podge regulatory schemes) over the protection of children against child-labor practices. It's more important for him that states not be overruled by the Feds than for children to be protected by federal, universal standards.

But he totally doesn't believe in "states' rights" or anything. He just believes states have more rights than humans, or something.
   833. Bitter Mouse Posted: June 29, 2012 at 08:05 AM (#4169252)
Going way back (but referenced in 822), the reason candidates for national office recently are not necessarily loved in their home state is that they are in fact National Offices.

The whole process is much more national than it used to be, and in fact I would argue as a nation we are less "state" based than we used to be, certainly where politicians are concerned. From a personal perspective people (especially in the income bracket that runs for office much more often than the poor folk do) move around much more than they used to. That and the fact that campaigns, funding, operations and so on (even for state offices) are much more national than before.

I give to candidates all over the nation. I hear about races and initiatives everywhere. Consultants move. A majority of our last few national candidates have multiple houses in various parts of the nation.

Once upon a time if your home state didn't love you, you had no base to run your campaign from, and that just isn't true any more.
   834. Langer Monk Posted: June 29, 2012 at 08:06 AM (#4169254)
The reasoning was that Roberts would side with the pro-ACA side so that he could construct a decision that would be more narrow than one authored by a Ginsburg or Souter.


I think this is cart before horse - the way this decision was reached, Roberts had to write the opinion.

5 Justices said the Commerce Clause didn't allow ACA (nor Necessary and Proper under the same line of reasoning, can't be the latter if not the former), and then in the next analysis, 5 said Congress does have the power to do such a thing as a tax.

Roberts is the only common Justice in each. This is in every way, his decision. He got enough votes from the two different groups on those two different issues.
   835. Rickey! trades in sheep and threats Posted: June 29, 2012 at 08:11 AM (#4169256)
The whole process is much more national than it used to be, and in fact I would argue as a nation we are less "state" based than we used to be, certainly where politicians are concerned.


Shhhhh. You'll make the libertarians cry.
   836. formerly dp Posted: June 29, 2012 at 08:12 AM (#4169257)
The tale he told underscored just how little is known about the men and women who dress as various children’s characters in tourist-clogged areas, looking for small tips. This tiny industry is unregulated.


Emphasis added. What would prompt someone to write that last part?

Assuming you're actually interested in an answer:

It's apparently a common practice among pedophiles to dress up as children's characters and go hang out in crowded places-- kids touch them, they get to hug/rub/dry hump kids, and as long as they're wearing the costume, contacts that would be verboten are actually celebrated. I didn't know this until I went to NYC with my 9 year-old niece and her mom, who both love Disney/all things stuffed and fuzzy. Her mom used to work in a prison counseling serious sex offenders and that's what they told her-- so my niece was not getting a hug or even a handshake from Elmo. Same thing with mall Santas.

NYC regulates subway performers. If you know that sexual predators are dressing up in costumes and trying to molest kids, requiring those dressing up in costumes to undergo a background check and obtain a street performer badge seems like not a stupid/tyrannical idea. But if such a licensing process ever goes into place, I'm sure you'll come here to eulogize freedom again.

   837. Rickey! trades in sheep and threats Posted: June 29, 2012 at 08:15 AM (#4169259)
But if such a licensing process ever goes into place, I'm sure you'll come here to eulogize freedom again.


You're impeding Jerry Sandusky's right to contract, man.
   838. The Id of SugarBear Blanks Posted: June 29, 2012 at 08:31 AM (#4169261)
As previously noted, Justice Roberts was a statesman in this decision and, really, the only justice who analyzed the case and its implications correctly. The extremists paid essentially no heed to the primary issues raised by the case -- the relationship between Congress and the judiciary and the formerly well-established principle of constitutional decision-making enjoining the Court from overturning an act of Congress if a way can be found to uphold it.

He was the only one of the nine that did not work backward from his political preferences.
   839. BrianBrianson Posted: June 29, 2012 at 08:59 AM (#4169272)
The whole process is much more national than it used to be, and in fact I would argue as a nation we are less "state" based than we used to be, certainly where politicians are concerned.


The US has prety much been in a constant state of the decline of the importance and distinctness of states, and increase in the importance of the federal government, since it was formed. Watching from across a lake, where the exact opposite process is happening, I can't say whether it's a good or bad thing, but the difference is pretty striking.
   840. Gonfalon Bubble Posted: June 29, 2012 at 09:07 AM (#4169275)
Scalia makes people on the left crazy.
-----
How is Scalia any more partisan than Ginsburg or Souter or whoever?


Maybe because Ginsburg or Souter or whoever didn't just put out a book in which they wrote that past Courts have misused the Commerce Clause, that they themselves have regrettably written past opinions based on those precedents which they now realize were wrong because "wisdom came late," and that they now intend to vote against Commerce Clause cases according to that new wisdom. But did Scalia say "cases," because he really meant "case," since beyond the next application, he explicitly makes no promises that he will continue to apply this newfound wisdom in the future.

I don't know that that makes Scalia any more partisan, but the crassness of this yes-when-I-feel-like-it-and-no-when-I-don't "judicial philosophy" expresses his contempt for his obligations and his refusal to comply.

Also, Souter is a terrible example of a Supreme Court "partisan," since he ruled on both sides throughout his career. vexing each. Only people who are disappointed that he didn't turn out to be the automatic vote they'd dreamed of would feel that way about him.
   841. Lassus Posted: June 29, 2012 at 09:13 AM (#4169283)
How is Scalia any more partisan than Ginsburg or Souter or whoever?

A real coke and basically full credit to Gonfalon, but I would like to echo that at least in regards to Souter this question is completely ridiculous. I might even go with "embarrassing."
   842. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: June 29, 2012 at 09:13 AM (#4169284)
That's an interesting legal distinction,

Which was the entire point of the exchange.


Let's just say that mine was a needed supplementary point.

Had those state laws provided uniform protection for children, the federal law wouldn't have been necessary.

Who said that the federal law was necessary?


Congress, for one.

-----------------------------------------------------

I think you're missing the forest for the trees here, Andy. David doesn't care that the laws were "wildly disparate in terms of both scope and enforcement." For him, that's a feature, not a bug. David preferences the freedom of states to not be directed by the Federal state (i.e. to come up with disparate, hodge-podge regulatory schemes) over the protection of children against child-labor practices. It's more important for him that states not be overruled by the Feds than for children to be protected by federal, universal standards.

And the fact that for David it's "a feature, not a bug" is all you really need to know about David's views on the subject.
   843. Matt Clement of Alexandria Posted: June 29, 2012 at 09:18 AM (#4169287)
Dan/MCoA: Can we agree that:

a) the commerce clause was already grotesquely distorted by Supreme Court precedent to provide Congress with unduly expanded power; and

b) upholding Obamacare under the commerce clause would have amounted to an unprecendented expansion of their power under this clause?
No and no.

It is pretty clear to me, at this point, that you have zero understanding of or literacy in mainstream liberal commentary or legal analysis. Dan and David have both explained to you that you really don't know what you're talking about when you project beliefs onto mainstream liberals.

See Akhil Reed Amar, Akhil Reed Amar again, Richard Posner, and of course Ruth Bader Ginsburg's concurrence/dissent.

Posner is quite clear here:
The health industry is of course an interstate business; there is a continuous flow of health insurance payments, health insurance reimbursements, drugs, doctors, patients, donations to hospitals, research money, etc. across state boundaries. Congress' regulatory power under the Commerce Clause is not limited to direct control of an interstate transaction; it includes the regulation of activities that affect an interstate industry, with "activities" including inactivity. The public accommodations provisions of the Civil Right Act of 1964 were upheld on the basis of the commerce power, even though the provisions required hotels and other places of public accommodation to do something—namely serve black travelers—that they didn't want to do, to force them, in short, to engage in interstate commerce they didn't want to engage in. And so it is with requiring drivers to be licensed—they would prefer not to have to pay a license fee. Of course they can avoid the fee just by not driving, but tell Americans not to drive and you might as well tell them cut off their feet in order to escape sales tax on shoes.

The young people who refuse to buy health insurance because they don't expect to get sick and if they do go to emergency rooms—and are billed, but just try collecting!—are free riders, like draft dodgers. They increase health costs for the rest of us.
And Amar here:
Q: What are the limits of congressional power?

A: The limits are those found in the Constitution itself, of course—its text, its history, and its structure as glossed by subsequent practice and precedent. The Constitution expressly gives Congress the power to “Regulate commerce . . . among the several states.” Here, we have a genuine regulation—both the micro-mandate/penalty/tax and the larger regulatory regime of which it is an integral part. We have commerce under any reading of the word. Insurance is a purely commercial or economic question about who pays whom. And we have an underlying problem that is truly “among the several states.” The problem of health care creates spillover costs that cross state lines, problems that result in some states in effect imposing costs on other states or bearing costs that properly belong to other states.

Q: How so?

A: At any given instant, literally millions of Americans are out of state. Most of my students come from other states. I myself am out of state three days a week. If any of us falls sick while out of state, we can seek ER care in the host state. And unless we have insurance, we will be imposing costs on other states. Obamacare addresses this obvious interstate problem in a direct way. The two leading cases in which the court has recently invalidated congressional laws as going beyond the scope of the commerce clause—U.S. v. Lopez in 1995 and U.S. v. Morrison in 2000, involving guns in schools and violence against women—did not involve similar interstate spillovers. Those cases were thus rightly decided on commerce clause grounds, as I myself have argued. And these cases prove that limits do really exist.
But really, just read Ginsburg's opinion. It's a brilliant, fully footnoted and acamedicized laying out of the mainstream liberal position on the commerce clause and health care, among various other issues.
   844. The Id of SugarBear Blanks Posted: June 29, 2012 at 09:19 AM (#4169288)
Maybe because Ginsburg or Souter or whoever didn't just put out a book in which they wrote that past Courts have misused the Commerce Clause, that they themselves have regrettably written past opinions based on those precedents which they now realize were wrong because "wisdom came late,"

Which begs the question of why we should trust his newfound "wisdom" when he bloviated so profusely about how wise his previous opinions were. (It also begs the question of why we'd want a justice who premises his decision-making so stridently within his self-centered quest to find himself.)
   845. Bitter Mouse Posted: June 29, 2012 at 09:33 AM (#4169297)
The US has prety much been in a constant state of the decline of the importance and distinctness of states, and increase in the importance of the federal government, since it was formed. Watching from across a lake, where the exact opposite process is happening, I can't say whether it's a good or bad thing, but the difference is pretty striking.


If one is a conservative, then it (change) is somewhat bad by definition. If a progressive then you have to look at the change and decide if it is a good change or a bad change. If libertarian I think it is bad (but I admit I don't truly get libertarians).

I think the change is being driven by very large factors (increased mobility of the population and technology like the internet) and is unlikely to change, so get used to it. If you hate it then come up with a strategy to work against the parts you don't like.

Most people will politely ask the future to please get off their lawn.
   846. The Id of SugarBear Blanks Posted: June 29, 2012 at 09:35 AM (#4169298)
Isn't the (long) severability discussion in the dissent superfluous? What does severability have to do with a law that wasn't overturned?

Roberts probably did change his vote late in the process; at the very least, the dissent was written as a contemplated majority opinion at some stage.
   847. Gonfalon Bubble Posted: June 29, 2012 at 09:37 AM (#4169302)
A real coke and basically full credit to Gonfalon

And I'll take it with pleasure, as long as the Coke doesn't have a pubic hair on it.
   848. BrianBrianson Posted: June 29, 2012 at 09:39 AM (#4169303)
If one is a conservative, then it (change) is somewhat bad by definition. If a progressive then you have to look at the change and decide if it is a good change or a bad change.


Watching from across Lake Ontario, of course, I have the option of being a Progressive Conservative. ;)
   849. Yeaarrgghhhh Posted: June 29, 2012 at 10:07 AM (#4169327)
I'm reading The Better Angels of Our Nature right now, and he makes a pretty good case that the growth of the Leviathan over the last few hundred years has been great development.
   850. Morty Causa Posted: June 29, 2012 at 10:15 AM (#4169332)
   851. tshipman Posted: June 29, 2012 at 10:20 AM (#4169336)
This is a bunch of gibberish and non-sequiturs strewn together. The people who do not purchase insurance aren't participating in anything. Anybody's not-buying-something directly affects the price other people pay for it, but that has absolutely nothing to do with whether one is participating in the market in it.


So, Ray stated that this nonsense "activity/inactivity" thing would have been without precedent. I am pointing out that first of all, activity/inactivity is meaningless, as calling something "inactivity" is just a framing device. Second of all, there is 75 years of precedent supporting the mandate, including most notably in Wickard and Raich, where "inactivity" in the interstate market is specifically cited as a reason allowing regulation.

If you think that 75 years of legal precedent is a "bunch of gibberish and non-sequiturs," then turkey bologna sandwiches eaten by a mustachioed sailor.
   852. Yeaarrgghhhh Posted: June 29, 2012 at 10:28 AM (#4169340)
If you step off a curb tomorrow and get hit by a bus, you will be taken by an ambulance to a hospital and treated, regardless of whether or not you have insurance or can pay for the treatment out of pocket. Everyone participates in the health care system, whether they like it or not. That's the price you pay and benefit you receive from living in a modern, interconnected society.
   853. aleskel Posted: June 29, 2012 at 10:31 AM (#4169344)
I like the subsidies and like the pre-existing condition provision, but I dislike the mandate. I don't know enough to have any idea whether the mandate really has to be in the bill for the bill to have been passed, and I'm undecided about whether the mandate is an acceptable tradeoff for the bill's other provisions.

This is the point of the mandate, and the reason the Republican opposition is going to find repealing Obamacare a sisyphean task: the pre-existing conditions requirement means that insurance companies have to take on expensive-to-care-for patients that they otherwise wouldn't, and they need the assurance that there is going to be some way to pay for them. The answer is to broaden the pool, hence the mandate. So if you try to remove the individual mandate but keep the other stuff, you're going to piss off the insurers royally, and there's no way the Republicans want to pick that fight.

Perhaps I'm incredibly naive to think this, but could this open the door for is other "taxes" for not buying other consumer products whose makers take it into their heads to get a sweetheart deal with the government? I could see the pharmaceutical industry convincing congress that it's a public health crisis how few children are given vitamins, for example. It seems far fetched, yet somehow not so far fetched.

This is the "broccoli" argument the opposition has forwarded: could the government make everyone buy broccoli, or pay a fine if they don't? It's a slippery-slope argument that legal types like, but it doesn't really apply to practical governance. Is there anyone really arguing that we have a national crisis of not enough people eating broccoli or taking vitimins (which, by the way, aren't sold by pharmaceutical companies and are probably worthless)? We do very clearly have a crisis of people using our healthcare system without the means to pay for their care, thereby imposing costs of the rest of the users.
   854. Rickey! trades in sheep and threats Posted: June 29, 2012 at 10:31 AM (#4169346)
I think the change is being driven by very large factors (increased mobility of the population and technology like the internet) and is unlikely to change, so get used to it.


Well, of course this is true. The problem for "originalists" is that the nation, lo, even the world, is nothing like it was "originally." A system of governance and assumptions about political viabilities and the common good made when people rode horses is not, precisely, universally applicable to the world we live in. The United States is more unitary today than it was in 1785. For example, I can go order hundreds of dollars worth of goods from a company based in California, right now, immediately, without moving from my desk chair in Georgia, and having it shipped to me by some third party from Nevada, while a guy in Virginia pulls royalties from the goods. Yet somehow "originalists" think we need to consider the concept of "interstate commerce" as if it meant floating a ####### barge down the Mississippi River.

The problem for "strict constructionists" is that they revere the text of "The Law" above the spirit and function of the law. They're basically the legal equivalents of the evangelical inerrant scripturalists from a few pages ago arguing that their Bible - in this case the Constitution *as they read it, and only as they read it* is infallible.
   855. Matt Clement of Alexandria Posted: June 29, 2012 at 10:32 AM (#4169347)
I'm reading The Better Angels of Our Nature right now, and he makes a pretty good case that the growth of the Leviathan over the last few hundred years has been great development.
I have to say I found it terribly unconvincing. Pinker seems to be depending on some very particular endpoints - the period of human history from 1900-1950 or so, in which much of the contemporary state leviathans came into being, was horrifically destructive of human life and the natural environment. The coming environmental catastrophes very well could be on a similar scale. I am perhaps in a bit of an apocalyptic place at the moment, but I think Better Angels of Our Nature is the Dow 36,000 of pop history.
   856. Ray (RDP) Posted: June 29, 2012 at 10:36 AM (#4169348)
No and no.

It is pretty clear to me, at this point, that you have zero understanding of or literacy in mainstream liberal commentary or legal analysis. Dan and David have both explained to you that you really don't know what you're talking about when you project beliefs onto mainstream liberals.


Thanks for your reply.

Posner is quite clear here:

The health industry is of course an interstate business; there is a continuous flow of health insurance payments, health insurance reimbursements, drugs, doctors, patients, donations to hospitals, research money, etc. across state boundaries. Congress' regulatory power under the Commerce Clause is not limited to direct control of an interstate transaction; it includes the regulation of activities that affect an interstate industry, with "activities" including inactivity. The public accommodations provisions of the Civil Right Act of 1964 were upheld on the basis of the commerce power, even though the provisions required hotels and other places of public accommodation to do something—namely serve black travelers—that they didn't want to do, to force them, in short, to engage in interstate commerce they didn't want to engage in. And so it is with requiring drivers to be licensed—they would prefer not to have to pay a license fee. Of course they can avoid the fee just by not driving, but tell Americans not to drive and you might as well tell them cut off their feet in order to escape sales tax on shoes.


The reliance on this example is disingenuous on the part of Posner, as it's not the same situation. The hotels and other businesses were engaged in commerce. They were acting.

The young people who refuse to buy health insurance because they don't expect to get sick and if they do go to emergency rooms—and are billed, but just try collecting!—are free riders, like draft dodgers. They increase health costs for the rest of us.


Oh, Obamacare eliminates free riders? So the people excluded from the fine/tax aren't free riding?

This is disingenuous as well.
   857. aleskel Posted: June 29, 2012 at 10:41 AM (#4169350)
Oh, Obamacare eliminates free riders? So the people excluded from the fine/tax aren't free riding?

The majority of people who are excluded are poor enough to qualify for Medicaid (at least that was the intention, it remains to be seen how this will work now that the Supreme Court has made the expansion more difficult). It is practically impossible to remove all free riders absent a UK-style NHS (which we all know would thrill conservatives), but it is possible to reduce them in number.
   858. Matt Clement of Alexandria Posted: June 29, 2012 at 10:41 AM (#4169351)
Oh, Obamacare eliminates free riders? So the people excluded from the fine/tax aren't free riding?

This is disingenuous as well.
That is indeed a disingenuous question. Because free riders are a problem for any interstate regulatory scheme related to health insurance, regulations which mandate certain behaviors or penalties from free riders are a perfectly reasonable aspect of the law.

A regulatory scheme need not entirely solve the problem it seeks to alleviate in order to be constitutional. Taxes which fund the government in order to serve the general welfare don't need to entirely end poverty in order to be constitutional.
   859. Ray (RDP) Posted: June 29, 2012 at 10:43 AM (#4169352)
So, Ray stated that this nonsense "activity/inactivity" thing would have been without precedent. I am pointing out that first of all, activity/inactivity is meaningless, as calling something "inactivity" is just a framing device.


No, it's not. The "framing device," actually, is painting inaction as action.

Second of all, there is 75 years of precedent supporting the mandate, including most notably in Wickard and Raich, where "inactivity" in the interstate market is specifically cited as a reason allowing regulation.


Once more: Filburn was acting. He was growing wheat on his property.


   860. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: June 29, 2012 at 10:44 AM (#4169353)
The reliance on this example is disingenuous on the part of Posner, as it's not the same situation. The hotels and other businesses were engaged in commerce. They were acting.

So are we now correct to infer that you agree with the Supreme Court's (unanimous) legal reasoning in that Heart of Atlanta case, and that you don't see the restaurant owners as having been forced into some sort of involuntary servitude?
   861. Yeaarrgghhhh Posted: June 29, 2012 at 10:50 AM (#4169357)
How is the environment relevant to his thesis?

There are definitely weak points in the book, but I think his claims that the 1900-1950 period (a) isn't evidence of a trend towards more warfare, and (b) wasn't as bloody on a per capita scale compared to previous periods as commonly assumed, and therefore not a clear highwater mark for violent conflict in human history, are fairly convincing. But his claim that day-to-day violence in our society has declined precipitously due to the growth of the Leviathan, the rise of cooperative commerce, etc. is compelling IMO.
   862. Matt Clement of Alexandria Posted: June 29, 2012 at 10:51 AM (#4169358)
Ray's disagreement with Posner on "activity/inactivity" shows what a flimsy category it is for doing any sort of rigorous legal reasoning. This is one of the main reasons why "activity/inactivity" has basically no grounding as a useful category in constitutional law or scholarship, and has basically no history as a category in use either by the framers of the constitution or later courts producing interpretation of the constitution. It was trumped up to serve this one particular political purpose, because although it is an entirely fuzzy category, it is an angle toward a political goal the right likes.

The good thing about this brand new category of constitutional analysis is that, if all previous Commerce Clause interpretation has only supported the regulation of "activity", and the regulation of "inactivity" applies only in the case of national mandates which cannot be construed as taxes, then this is a category that doesn't actually apply to any of the existing regulatory state, or to any future proposed liberal reforms to the regulatory state. So even if you accept this new category and new reasoning, it's not actually germane to any past or future cases.
   863. Lassus Posted: June 29, 2012 at 10:55 AM (#4169360)
I think you guys are misconstruing what Ray means when he talks of "eliminating" freeriders.
   864. Matt Clement of Alexandria Posted: June 29, 2012 at 10:56 AM (#4169362)
I think his claims that the 1900-1950 period (a) isn't evidence of a trend towards more warfare, and (b) wasn't as bloody on a per capita scale compared to previous periods as commonly assumed, and therefore not a clear highwater mark for violent conflict in human history, are fairly convincing
I didn't think it was at all. He compared events which transpired over a few years to events which transpired over centuries in order to make those claims. (He also did not much of an effort to document suffering and death caused by colonialism, slavery, and the like, actions by his enlightened Europeans outside the scope of Europe.)

The environment is relevant because mass political upheaval in low-lying poor nations is a likely outcome of global warming. If we are simply living in an interregnum between (a) the horrors of colonialism and the great wars and genocides of Europe and (b) the environmental catastrophes of global warming, then his book is just projecting into the future a short "bubble" period of peace. Like Dow 36,000 did with the markets.
   865. Yeaarrgghhhh Posted: June 29, 2012 at 11:02 AM (#4169371)
I didn't think it was at all. He compared events which transpired over a few years to events which transpired over centuries in order to make those claims. (He also did not much of an effort to document excess deaths caused by colonialism, slavery, and the like, actions by his enlightened Europeans outside the scope of Europe.)

Slavery and colonialism are data points he cites in support of the point that the 1900-1950 period is not a highwater mark; he argues that the Atlantic slave trade and the annihilation of the native american population each killed far more people than WWI and WWII combined when adjusted to the population as a whole.
   866. David Nieporent (now, with children) Posted: June 29, 2012 at 11:02 AM (#4169372)
As previously noted, Justice Roberts was a statesman in this decision and, really, the only justice who analyzed the case and its implications correctly. The extremists paid essentially no heed to the primary issues raised by the case -- the relationship between Congress and the judiciary and the formerly well-established principle of constitutional decision-making enjoining the Court from overturning an act of Congress if a way can be found to uphold it.

He was the only one of the nine that did not work backward from his political preferences.
Uh, that is a political preference.
   867. David Nieporent (now, with children) Posted: June 29, 2012 at 11:07 AM (#4169376)
If you step off a curb tomorrow and get hit by a bus, you will be taken by an ambulance to a hospital and treated, regardless of whether or not you have insurance or can pay for the treatment out of pocket. Everyone participates in the health care system, whether they like it or not. That's the price you pay and benefit you receive from living in a modern, interconnected society.
No. "If you step off a curb, you will be treated, so therefore everyone participates" is a complete non-sequitur. "If you step off a curb, you will be treated, so therefore people who have stepped off curbs participate" would be the proper argument.

But what does "Everyone participates in the health care 'system'" -- health care is not a "system" in the first place -- have to do with anything? The Constitution permits the regulation of commerce, not people who participated in commerce in the past or people who might participate in commerce in the future.
   868. tshipman Posted: June 29, 2012 at 11:08 AM (#4169377)
Once more: Filburn was acting. He was growing wheat on his property.


People who don't buy insurance and show up at the hospital are acting. Since we can't distinguish between people who don't buy insurance and show up at the hospital and people who don't buy insurance and who haven't shown up YET at the hospital, congress has the ability to regulate both.

They are both participating in interstate commerce to a greater degree than Filburn or Angel Raich.

edit:
The Constitution permits the regulation of commerce, not people who participated in commerce in the past or people who might participate in commerce in the future.


The Supreme Court in Raich and Wickard quite explicitly states that you are incorrect.
   869. Never Give an Inge (Dave) Posted: June 29, 2012 at 11:12 AM (#4169379)

EDIT: Nevermind.
   870. Morty Causa Posted: June 29, 2012 at 11:13 AM (#4169380)
   871. Ray (RDP) Posted: June 29, 2012 at 11:13 AM (#4169382)
"Eliminate," "reduce," whatever. I find the very mention of the need to curb free riders as disingenuous when the entire point of Obamacare was to add a bunch of free riders to the system.

It is a ludicrous argument for people who supported Obamacare to make, and they ought not traffic in such dishonesty.
   872. Rickey! trades in sheep and threats Posted: June 29, 2012 at 11:13 AM (#4169383)
The Supreme Court in Raich and Wickard quite explicitly states that you are incorrect.


Post 1937. Don't count. We can't hear you!
   873. David Nieporent (now, with children) Posted: June 29, 2012 at 11:14 AM (#4169384)
We do very clearly have a crisis of people using our healthcare system without the means to pay for their care, thereby imposing costs of the rest of the users.
(1) We don't have a crisis of people using our healthcare system without the means to pay for their care. Estimates are that uncompensated care is only a few percent of total health care spending.
(2) Being uninsured is not the same thing as being "without the means to pay for" one's care.
(3) The mandate does not prevent people from imposing costs on the rest of users, it mandates that people impose costs on the rest of users. An uninsured person who doesn't use any care doesn't impose any costs on anybody, by definition. Forcing him to buy insurance simply imposes costs on him. The uninsured person who uses care and pays for it doesn't impose any costs on anybody, by definition. Now, the person who does use care and doesn't pay for it? Well, forcing him to buy insurance doesn't prevent him from imposing costs on others; his past premiums, essentially by definition, are going to be less than the cost of his care.
   874. escabeche Posted: June 29, 2012 at 11:15 AM (#4169386)
The hotels and other businesses were engaged in commerce. They were acting.


They were in the business of renting rooms to white people. The federal law compelled them to launch economic activity they weren't already undertaking, namely, renting rooms to black people.

If there's a distinction to be made between the ACA case and Hearts in Atlanta -- and I think there is, though I'm not sure it's big enough to affect the outcome -- it's that Georgia hotel owners had the option to comply with the federal law by getting out of the hotel business entirely. I don't think any interpretation of the Commerce Clause would license Congress to force people to operate a hotel as opposed to retiring, even though a total absence of hotels in Atlanta would disrupt interstate commerce even more than discriminatory hotels in Atlant

On the other hand, closing down a functional business constitutes a massive financial penalty, much more serious than what people who chose not to buy health insurance would pay. So I still don't really see how to get to "The Commerce Clause doesn't license Congress (in the interest of facilitating interstate transportation) to compel people to buy health insurance on pain of a fine, but it does license Congress (in the interest of facilitating interstate job-shifting) to compel people to sell food to black people on pain of losing their business."

   875. Ray (RDP) Posted: June 29, 2012 at 11:21 AM (#4169388)
They were in the business of renting rooms to white people. The federal law compelled them to launch economic activity they weren't already undertaking, namely, renting rooms to black people.


Now who is using a "framing device?" Setting aside the merits of the Civil Rights Act, which is a different debate, they were in the business of renting rooms. They were already undertaking that.
   876. Morty Causa Posted: June 29, 2012 at 11:21 AM (#4169389)
It isn't jut about the Constitution as it was written. You can't deny the development of Constitutional interpretation and the influence of events extra-judicial--you know, like the Civil War--that changed, or reinforced, a certain interpretation. It's no use saying that the National government is not sovereign over the states--that was decided in a War in which those who held one view prevailed over those who held another. We have the evidence of a historical reality to the contrary. You cannot simply go back to reading the text of the Constitution with a sigh of relief as if nothing has happened since 1787. That text was reformed by experience.
   877. David Nieporent (now, with children) Posted: June 29, 2012 at 11:22 AM (#4169390)
The majority of people who are excluded are poor enough to qualify for Medicaid (at least that was the intention, it remains to be seen how this will work now that the Supreme Court has made the expansion more difficult). It is practically impossible to remove all free riders absent a UK-style NHS (which we all know would thrill conservatives), but it is possible to reduce them in number.
And similar to my last comment: a UK-style NHS does not "remove all free riders"; it turns all users into free-riders.
   878. Lassus Posted: June 29, 2012 at 11:27 AM (#4169393)
It is a ludicrous argument... and they ought not traffic in such dishonesty.

Pot, please revisit your argument comparing Souter to Scalia before speaking so derisively of the kettle.
   879. Rickey! trades in sheep and threats Posted: June 29, 2012 at 11:27 AM (#4169395)
And similar to my last comment: a UK-style NHS does not "remove all free riders"; it turns all users into free-riders.


So, if I pay taxes to fund a NHS type of system, and then use that tax-funded NHS type of system, I'm free riding?

You, sir, are irreplaceable.
   880. Rickey! trades in sheep and threats Posted: June 29, 2012 at 11:32 AM (#4169399)
(1) We don't have a crisis of people using our healthcare system without the means to pay for their care. Estimates are that uncompensated care is only a few percent of total health care spending.


The primary crisis in healthcare is one of cost and long term debt. Because health outcomes are not commodifiable in the traditional sense of the practice - because profit/loss market mechanisms don't adequately function for health outcomes - the providers have found they can charge anything for services. The ACA is primarily about two things: 1) providing insurance options for individuals who have been priced out of the current system due to "market demands" (i.e. the poor or the 'pre-existing conditions' that insurance company's deny coverage for fear of having to deliver actual services) and 2) bending the cost curve for medical/healthcare services back down.

Healthcare is like national defense. "Market" solutions fail. But because libertarians believe Tinkerbell can never die, they just try to clap louder and pretend the world is not the case.
   881. David Nieporent (now, with children) Posted: June 29, 2012 at 11:34 AM (#4169400)
People who don't buy insurance and show up at the hospital are acting. Since we can't distinguish between people who don't buy insurance and show up at the hospital and people who don't buy insurance and who haven't shown up YET at the hospital, congress has the ability to regulate both.
Since we can't distinguish between people who haven't raped other people, and people who havent raped other people YET, both people who have and people who haven't can be put in jail.
   882. David Nieporent (now, with children) Posted: June 29, 2012 at 11:37 AM (#4169404)
So, if I pay taxes to fund a NHS type of system, and then use that tax-funded NHS type of system, I'm free riding?
Well, depends how much you use the NHS. If you use less of it than the taxes you paid, then no. If you use more of it than the taxes you paid, then yes. (*)

EDIT: In the latter case, by definition other people are subsidizing your care. Now, maybe you think that this is a great thing and what all countries should be doing and yada yada yada, but you can't deny that in fact the subsidization is taking place. So it makes no sense to talk about saying that there's a problem with some people being forced to subsidize others, and therefore we need to implement the NHS. The NHS may solve a certain problem, but not the problem of some people being forced to pay for other's care.


(*) DOUBLE EDIT: And of course the people who can't afford their care and don't have health insurance probably aren't paying much in taxes towards the NHS, anyway.
   883. Gonfalon Bubble Posted: June 29, 2012 at 11:38 AM (#4169406)
If you step off a curb tomorrow and get hit by a bus, you will be taken by an ambulance to a hospital and treated, regardless of whether or not you have insurance or can pay for the treatment out of pocket. Everyone participates in the health care system, whether they like it or not. That's the price you pay and benefit you receive from living in a modern, interconnected society.

No. "If you step off a curb, you will be treated, so therefore everyone participates" is a complete non-sequitur. "If you step off a curb, you will be treated, so therefore people who have stepped off curbs participate" would be the proper argument.


You must be using a different translation of "sequitur"; does yours mean "arguable"? Those of us who haven't been run over by buses lately are charged just as much as those curbsteppers who do, but can't or won't pay, via tax writeoffs, cost shifting, and higher rates. Thus, everyone participates. We're all socialists, or at least we have been since the law mandating such care was signed by that old bolshevik Ronald Reagan.
   884. BrianBrianson Posted: June 29, 2012 at 11:42 AM (#4169407)
So, if I pay taxes to fund a NHS type of system, and then use that tax-funded NHS type of system, I'm free riding?


In fairness, almost all of us used our single payer healthcare provisions before we started paying in. I don't recall it, but I'm told they dislodged me from my mother's uterus a few decades ago, before which I had exactly zero dollars towards the Ontario Health Insurance Plan, via taxes or anything else.
   885. David Nieporent (now, with children) Posted: June 29, 2012 at 11:42 AM (#4169409)
You must be using a different translation of "sequitur"; does yours mean "arguable"? Those of us who haven't been run over by buses lately are charged just as much as those curbsteppers who do, but can't or won't pay.
Those of us who haven't been run over by buses lately aren't charged anything at all.
   886. Rickey! trades in sheep and threats Posted: June 29, 2012 at 11:43 AM (#4169410)
In fairness, almost all of us used our single payer healthcare provisions before we started paying in. I don't recall it, but I'm told they dislodged me from my mother's uterus a few decades ago, before which I had exactly zero dollars towards the Ontario Health Insurance Plan, via taxes or anything else.


Your mom used the system. You were just a parasite being removed.
   887. BrianBrianson Posted: June 29, 2012 at 11:44 AM (#4169412)
Your mom used the system. You were just a parasite being removed.


At the very least, the next week I spent in an incubator was healthcare solely for me. I'll try and find my tax returns from that era, but I'm fairly confident I hadn't put any money into the system at that point.
   888. spike Posted: June 29, 2012 at 11:45 AM (#4169414)
Well, depends how much you use the NHS. If you use less of it than the taxes you paid, then no. If you use more of it than the taxes you paid, then yes.

By that argument, people who use National Parks the most are free-riding, as well as people who commute the longest on highways, etc. etc. Is every participant in taxpayer funded government activity "free riding" if they derive more value out of it than their proportional share paid in? Because I suspect every person in this country is free riding in some form or other if so.
   889. Gonfalon Bubble Posted: June 29, 2012 at 11:51 AM (#4169420)
Those of us who haven't been run over by buses lately aren't charged anything at all.

Please share your secret for paying $0.00 of the cost that is diverted into health insurance premiums, medical care pricing, and the percentage of federal and local tax that helps to make up for the shortfall in what hospitals take in, and thus the lower amount that they pay in taxes.

We constantly hear that taxes raised on businesses are counterproductive because they will only be passed on to the consumer; I'd love to hear why only health care is exempt from this.
   890. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: June 29, 2012 at 11:51 AM (#4169421)
"Eliminate," "reduce," whatever. I find the very mention of the need to curb free riders as disingenuous when the entire point of Obamacare was to add a bunch of free riders to the system.

It is a ludicrous argument for people who supported Obamacare to make, and they ought not traffic in such dishonesty.


Of course this whole idea of "free riders" is nothing more than a transparent attempt to imply that there's something inherently immoral about a system that allocates health care on the basis of need rather than the ability to pay. It's a loaded term that seems to be the Viagra of the Tea Party, but there's no reason for anyone else to take it seriously.

-------------------------------------------

Now, the person who does use care and doesn't pay for it? Well, forcing him to buy insurance doesn't prevent him from imposing costs on others; his past premiums, essentially by definition, are going to be less than the cost of his care.

What you fail to mention is that when Joe the Healthy Plumber actually needs medical care, the libertarian responses to his suddenly altered situation would be (a) suck it up, (b) beg for alms, or (c) use the emergency room and stick the rest of us with the bill. Only the first of these responses would eliminate any "free riding" altogether, since while in the second case the care would be voluntarily given, Joe the Suddenly Sick Plumber would still remain a "free loader" under any meaningful definition of the term. (This much you seem to agree with.)

Which leaves only the "suck it up" alternative as a way of completely eliminating "free loading", but even then, somebody's going to have to scrape the corpse off the sidewalk and bury it somewhere. "Free loading" comes in all shapes and forms, and they don't all fit into one convenient political narrative, much as the ACA opponents try to pretend that they do.



   891. Yeaarrgghhhh Posted: June 29, 2012 at 11:51 AM (#4169422)
A pure pay-as-you-go system for all public services sounds nice in theory, but has no relevance to the real world.
   892. Rickey! trades in sheep and threats Posted: June 29, 2012 at 11:53 AM (#4169425)
A pure pay-as-you-go system for all public services sounds nice in theory, but has no relevance to the real world.


Lot's of infants would die.
   893. The Anthony Kennedy of BBTF (Scott) Posted: June 29, 2012 at 11:54 AM (#4169427)
823: To answer your question, while it's possible that such a situation might happen, there's a whole lot of reasons the law would fail and even if it could survive, the best solution to poor but constitutional laws is not via the judiciary but via elections.

Or to put it far better than I ever could, I'll hand it over to the Queen RBG:

n. As an example of the type of regulation he fears, THE CHIEF JUSTICE cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call
this concern “the broccoli horrible.” Congress, THE CHIEF JUSTICE posits, might adopt such a mandate, reasoning that an individual’s failure to eat a healthy diet, like the failure to purchase health insurance, imposes costs on others. See ibid. Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet.9 Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison. Other provisions of the Constitution also check congres­sional overreaching. A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

Supplementing these legal restraints is a formidable check on congressional power: the democratic process. See Raich, 545 U. S., at 33; Wickard, 317 U. S., at 120 (repeat­ing Chief Justice Marshall’s “warning that effective re­straints on [the commerce power’s] exercise must proceed from political rather than judicial processes” (citing Gibbons v. Ogden, 9 Wheat. 1, 197 (1824)). As the controversy surrounding the passage of the Affordable Care Act at­tests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so. See Hall, Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825, 1838 (2011). When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ian state as a credible reason to deny Congress the author­ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (assert­ing, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).


DMN: You are correct about the severability clause in McCain-Feingold. However, the part of the US Code in question itself already has a severability clause. The dissent elides it by claiming that the severability clause doesn't matter because striking down any part of the law results in the Court writing new legislation. To quote the Chief Justice, "When we invalidate an application of a statute because that application is unconstitutional, we are not “rewriting” the statute; we are merely enforcing the Constitution." To disagree would be to require every law that was partially invalidated to be struck down in toto, as the mere finding of unconstitutionality would be an impermissible rewriting. Even accepting your argument, the doctrine has long been to only strike down those things that the unconstitutional part was required to make work in the manner Congress intended. The logic in the dissent simply doesn't stand up, while the changes in Medicare were done in part to pay for the coverage expansions, they were also intended to reform Medicare qua Medicare. Striking down stuff like the bundling of payments and changing reimbursement rates to achieve better treatment for Medicare beneficiaries are unobjectionable changes that Congress has the power to make, and invalidating that because of a torturous, factually erroneous, and extremely narrow mind-reading of Congress that the purpose of the law was merely to expand coverage, is a textbook example of judicial overreach.

BTW: SCOTUSblog is rocking the house this past week. I'm so happy one of my favorite niche blogs has gone from "big fish in small pond" to "perfectly respectable sized fish in big pond."
   894. David Nieporent (now, with children) Posted: June 29, 2012 at 11:55 AM (#4169428)
Of course this whole idea of "free riders" is nothing more than a transparent attempt to imply that there's something inherently immoral about a system that allocates health care on the basis of need rather than the ability to pay. It's a loaded term that seems to be the Viagra of the Tea Party, but there's no reason for anyone else to take it seriously.
WTF are you talking about, Andy? It's the supporters of Obamacare who brought up free riding.
   895. formerly dp Posted: June 29, 2012 at 11:56 AM (#4169429)
By that argument, people who use National Parks the most are free-riding, as well as people who commute the longest on highways, etc. etc. Is every participant in taxpayer funded government activity "free riding" if they derive more value out of it than their proportional share paid in? Because I suspect every person in this country is free riding in some form or other if so.

Just the poor and middle class ones, who want nothing more than to leech of society's Great Men.
   896. Yeaarrgghhhh Posted: June 29, 2012 at 11:56 AM (#4169430)
I read somewhere that Obama was reading SCOTUSBlog yesterday morning and they had something like 800,000 live viewers at the time of the announcement. They must be pretty psyched.
   897. Ray (RDP) Posted: June 29, 2012 at 12:00 PM (#4169433)
"Eliminate," "reduce," whatever. I find the very mention of the need to curb free riders as disingenuous when the entire point of Obamacare was to add a bunch of free riders to the system.

It is a ludicrous argument for people who supported Obamacare to make, and they ought not traffic in such dishonesty.


Of course this whole idea of "free riders" is nothing more than a transparent attempt to imply that there's something inherently immoral about a system that allocates health care on the basis of need rather than the ability to pay. It's a loaded term that seems to be the Viagra of the Tea Party, but there's no reason for anyone else to take it seriously.


*Matt* brought up the idea of the need to reduce free riding, by quoting Posner. And I am pointing out that this justification is disingenuous because the whole point to Obamacare was, "Oh my god, some people can't afford health insurance, and we need to add these people to the system and make other people pay for them because it's immoral to deny people health insurance and we can't have people going bankrupt or being denied coverage and preventative care and such."

I am not commenting on whether Obamacare is moral or immoral. I'm commenting that the people favoring it should at least be honest as to what it is.
   898. Rickey! trades in sheep and threats Posted: June 29, 2012 at 12:00 PM (#4169434)
I read somewhere that Obama was reading SCOTUSBlog yesterday morning and they had something like 800,000 live viewers at the time of the announcement. They must be pretty psyched.


A huge event with little coverage, but the fact that the decision was live-blogged by SCOTUSBlog is huge. It basically prevented the traditional "let pundits read it over and find a way to spin it for their preferred parties before anyone ever sees it" process from taking over. Good day for democracy in that light.
   899. David Nieporent (now, with children) Posted: June 29, 2012 at 12:02 PM (#4169438)
Such “pil[ing of] inference upon inference” is just what the Court refused to do in Lopez and Morrison.
This is particularly disingenuous on Ginsburg's part, because Ginsburg rejects Lopez and Morrison. She has no problem piling inference upon inference.
   900. formerly dp Posted: June 29, 2012 at 12:05 PM (#4169442)
seems to be the Viagra of the Tea Party

Ummm, Andy: I've been to Tea Party rallies. Viagra is the Viagra of the Tea Party.

Notorious rightie rag The Atlantic suggested this month that Republicans should campaign on repealing the EMTALA, since that would, in fact, go a long way toward eliminating the free rider problem. Other than Paul though, none of them seem to be on board with that.

(some good ideas in this year's Ideas List: lotteries for college admissions, sell the pill over the counter...lots more, but this thread probably shouldn't go on for 12300 posts)
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