macgyver - 03 April 2012 01:20 PM

All the arguments from people crying foul over the issue of being forced to buy something seems a bit disingenuous when you look at it that way. we are all forced to buy military and police protection.

Not really.  The federal government’s role in providing military protection is explicit in the Constitution, and the police power is implicit.  It’s not hard to come up with limiting criteria on those powers.  The Constitutional allows for the states to carry a broader set of powers, though military protection is left almost exclusively to the federal government.

We are all forced to buy virtually every service the government offers except that we do so through a system of taxation instead of private enterprise.

That’s true to a point, but the real issue boils down to whether the government can provide an unlimited menu of services and bring an end to competition with private enterprise.  It’s extraordinarily doubtful the Framers had that exercise of government in mind.

Obviously the supreme court has to decide this on constitutional grounds but if we’re being honest here the opposition to the health care plan has absolutely nothing to due with the commerce clause and everything to do with conservative opposition to universal health care. They just see this as the best way to shoot down the latest attempt to enact such a program.

It’s not universal health care (roughly 20 million will go uninsured according to CBO estimates, iirc).  It’s bad law.  The big push against ObamaCare came from the states who will be required to operate under potentially crushing Medicaid funding mandates if the law is not challenged.  The law represents a significant expansion of federal power, and it was entirely appropriate to challenge it on that basis.

Bryan - 03 April 2012 12:23 PM

TimB - 30 March 2012 02:49 PM

The Supreme Court is ideally above political considerations, but it apparently, in fact is not.  The health care bill which they may strike down, and more specifically the mandate that everyone pay premiums, is ironically the most conservative approach to addressing the problem.

It would have been terrific if this thread had ended up discussing the specifics of the case, which (IMHO) would show TimB’s assessment somewhat blatantly partisan.

The key to whether the court’s action in striking down the individual mandate is found in the question to the defendant’s counsel:  What principle should limit the ability of the federal government to regulate commerce?

Defense counsel was stumped.

If the Court is likewise stumped then the individual mandate should be ruled unconstitutional as a fairly obvious matter, since it would represent the end of the Constitution as a document undergirding limited government (instead it is become a document justifying unlimited government).  The remaining question if the mandate goes is severability:  How much of the law remains after the individual mandate is removed?

Justice Scalia further highlighted the issue of judicial activism.  He suggested that striking down the entire law is less activist than for the Court to go through the law and decide what stays and what goes, reasoning that fashioning the law is the business of Congress, not the Court.

I am no constitutional scholar, but I would assume that the same principal would be in tact that has been so for all of the previous cases in which the Court has supported the governemnt’s ability to regulate interstate commerce, perhaps having to do with balancing the common good with issues of individual freedom and state’s rights. (IOW, the Supreme Court’s role is the limiting principle.) The justice who surmised whether a decision to support the health bill would lead to the government being able to mandate us to eat brocolli, was delivering a specious argument.  We don’t all need to eat brocolli, or avoid brocolli, but we all are subject to needing and getting healthcare.

As to my “assessment” being partisan, I, personally, admit to being partisan, but if you think that the Supreme Court Justices are not partisan, then, IMHO, you are in error.

The same 5 conservative Justices who may strike down the imperfect but only hope for healthcare reform that we are likedly to have, decided that the long arm of the law can check the anus and under the genitals of anyone who is arrested for anything.  Their interpretation of the Constitution is clearly based on partisan bias as it is the same 4 Republican serving Justices and the same 4 Democratic serving Justices that vote together consistently, with the coservative-bent Kennedy on rare occasion switching to the Democratic side as it gives him more impact to do so. 

Supporting law enforcement, to the extreme, over individual liberties is a conservative Republican agenda.  Striking down Obamacare is a Republican agenda.  But as I noted in my original post, the Justices have the dilemna of striking down an essentially conservatively designed healthcare bill.  It was designed by the Republican Presidential Nominee.  It supports the interests of the private insurance companies. Thru the mandate, it requires some minimal level of individual responsibility for one’s potential health care needs.  The masses of Americans who identify themselves as Republicans may not see this, as they are brainwashed by simplistic Republican talking points, that basically anything to do with Obama is a socialist catastrophe.  The Justices however are not that stupid.  They are faced with justifying their particular partisan bias, but in the healthcare case, which conservative agenda will they support?  Ideologically they could support a basically conservative healthcare bill or politically they could strike down the healthcare bill because in the current Republican world, everything that is opposed to anything that Obama is trying to do, is good. 

If it were about interpreting the Constitution in some sort of unbiased fashion, then the same Justices would not be coming down for or against issues that are politically partisan.  Conservative Justices made George W. Bush our President.  Conservative Justices decided that corporations are people.  Coservative Justices decided that money is free speech and wiped out years of legislation that attempted election reform.  Conservative Justices have now decided that anyone who is arrested for anything can be strip searched, even if the arrest was unfounded.  And conservative Justices may have decided to strike down any chance we have of any semblance of meaningful healthcare reform.

Another conservative Justice or two and abortion may become illegal. Perhaps separate but equal schools will again be the order of the day.  Maybe states will be allowed to gerrymander their voting districts at will to exclude the impact of minorities voting. But even as the Court currently stands, if the coming Presidential election is so close as to come down to one state with contested election results, then Romney will undoubtedly be selected.  What the Supreme Court has been doing is not impartial interpretation of the Constitution.  It is interpretation of the Constitution in whatever way that serves their particular political bias.

I will stop there, as I wouldn’t want to go on a rant.

TimB - 03 April 2012 02:30 PM

I am no constitutional scholar, but I would assume that the same principal would be in tact that has been so for all of the previous cases in which the Court has supported the governemnt’s ability to regulate interstate commerce, perhaps having to do with balancing the common good with issues of individual freedom and state’s rights.

There is no such principle in the law (unless we count the literal reading, which the courts have pretty much erased).  Past cases established no limiting principle.  The question of a limiting principle wasn’t asked until now.  As I pointed out, the Court is justified in asking what limiting principle should apply.

(IOW, the Supreme Court’s role is the limiting principle.)

If the Supreme Court fails then we have an unlimited federal government instead of a limited one.  Shall we celebrate?

It’s a responsibility of all three branches of government to adhere to Constitutional principles.  One has to wonder which branches of the government have any clue as to what those are, other than what they want them to be.

The justice who surmised whether a decision to support the health bill would lead to the government being able to mandate us to eat brocolli, was delivering a specious argument.  We don’t all need to eat brocolli, or avoid brocolli, but we all are subject to needing and getting healthcare.

Actually we don’t all need healthcare, and in any case the government isn’t mandating health care.  It’s mandating health insurance..  But I’ll grant that the vast majority do.  Regardless of that—it’s too bad you weren’t arguing before the Court to provide the missing limiting principle.  Though can’t we argue that we all need food?  And broccoli is a food and therefore at least somewhat analogous.  I think you’d need to develop your principle a bit more.  I think if you were arguing your point before the Court you’d receive some tough questions about it.

As to my “assessment” being partisan, I, personally, admit to being partisan, but if you think that the Supreme Court Justices are not partisan, then, IMHO, you are in error.

The justices are supposed to put partisanship aside and consider the law.  The conservative justices were better on the law and so were the attorneys for the plaintiffs.

http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/breyers-unhinged-commerce-clause-ramblings/453011
http://www.nationalreview.com/critical-condition/294467/obama-s-lawyer-confuses-himself-mandate-penalty-or-tax-avik-roy

Justice Sotomayor was a pleasant surprise, btw.  She asked good questions and had a good line tweaking Scalia.  I’m not saying that she’ll vote against ObamaCare, just saying she looks like she has the intellectual chops to sit with the SCOTUS.

My question is why the general public should be taxed to supplement the healthcare of a congress which votes the abolishment of universal healthcare for the general public?
And the tennis courts and exercise rooms, and the staff, and the office supplies, and the…..........the list is long. Are these also mandated in the constitution?

Like other large employers, the government pays a large share of the cost of coverage. On average, the government pays 72 percent of the premiums for its workers, up to a maximum of 75 percent depending on the policy chosen. For example, the popular Blue Cross and Blue Shield standard fee-for-service family plan carries a total premium of $1,120.47 per month, of which the beneficiary pays $356.59. Washington, D.C.-based employees who prefer an HMO option might choose the Kaiser standard family plan. It carries a total premium of $629.46 per month, of which the employee pays only $157.36.

http://www.factcheck.org/2009/08/health-care-for-members-of-congress/

TimB - 03 April 2012 10:32 PM

The same 5 conservative Justices who may strike down the imperfect but only hope for healthcare reform that we are likedly to have, decided that the long arm of the law can check the anus and under the genitals of anyone who is arrested for anything.  Their interpretation of the Constitution is clearly based on partisan bias as it is the same 4 Republican serving Justices and the same 4 Democratic serving Justices that vote together consistently, with the coservative-bent Kennedy on rare occasion switching to the Democratic side as it gives him more impact to do so.

Kennedy’s not dependably conservative.  He’s the swing vote.

It seems to me you’re misreading the decision.  The government has the power to do a full-body search of any person it’s going to keep in jail.  The relevant part of the Constitution is a limitation of searches and seizures.  Searches shall not be unreasonable.  The five justices find it reasonable to search anyone who’s going to take up space in a jail cell.
http://legal-dictionary.thefreedictionary.com/Arrest

That doesn’t seem like an outrageous decision to me unless you’re correct that anyone arrested for any reason may be so searched.  I don’t think you’re correct.

Supporting law enforcement, to the extreme, over individual liberties is a conservative Republican agenda.

If your interpretation of the decision is correct then I’ll agree it’s an extreme decision.  Otherwise I’d hope for an alternative example.

Striking down Obamacare is a Republican agenda.

It’s more than that.  About 60 percent of the general public thinks the individual mandate is unconstitutional.  I’m not saying that we should follow the wisdom of crowds.  I’m just saying that opposition to the bill is much broader than allegiance to the Republican Party.

Oh, well.  I was off by 12 percent (the correct figure is 72 percent):
http://www.gallup.com/poll/152969/Americans-Divided-Repeal-2010-Healthcare-Law.aspx

But as I noted in my original post, the Justices have the dilemna of striking down an essentially conservatively designed healthcare bill.  It was designed by the Republican Presidential Nominee.  It supports the interests of the private insurance companies. Thru the mandate, it requires some minimal level of individual responsibility for one’s potential health care needs.  The masses of Americans who identify themselves as Republicans may not see this, as they are brainwashed by simplistic Republican talking points, that basically anything to do with Obama is a socialist catastrophe.

Oh, great.  Now I know why I think the way I do. 

RomneyCare’s never going to have the problem ObamaCare has because Massachusetts does not rely on the Commerce Clause for its power to enforce an individual mandate.  Nor does RomneyCare place unwanted unfunded mandates on the several states.

The Justices however are not that stupid.  They are faced with justifying their particular partisan bias, but in the healthcare case, which conservative agenda will they support?  Ideologically they could support a basically conservative healthcare bill or politically they could strike down the healthcare bill because in the current Republican world, everything that is opposed to anything that Obama is trying to do, is good.

Well, at least we know it’s absolutely impossible that they have sincere concerns about the expanded federal power implied in this application of the Commerce Clause. 

You might be interested to know that the President is scheduled to sign a bipartisan jobs bill on Thursday.
http://thehill.com/homenews/house/219415-obama-extends-olive-branch-to-cantor-after-passage-of-jobs-bill

If it were about interpreting the Constitution in some sort of unbiased fashion, then the same Justices would not be coming down for or against issues that are politically partisan.  Conservative Justices made George W. Bush our President.

No, that’s not correct.  Seven justices ruled that the Florida Supreme Court’s decision for Gore was unacceptable in terms of equal protection (counting only undervotes).  A 5-4 majority cut short any subsequent attempt to come up with a different remedy because of the safe harbor concerns.  It was the Florida Supreme Court that acted in a most partisan fashion.  Post-election evaluations of the most likely outcome of the 2000 Florida election made Bush the likely winner (more votes were probably cast for Gore, counting those of felons, but the count done as the Florida court stipulated would have led to a Bush victory).
http://www.pbs.org/newshour/media/media_watch/jan-june01/recount_4-3.html

Conservative Justices decided that corporations are people.

They obviously are.  Take away all the people and you’ll find no corporations left.  Corporations are people acting corporately.  They can’t not be people.  If they weren’t people then you couldn’t sue them for liability.  Non-persons have no culpability under the law.  With respect to elections it is empowering for groups of like-minded people to act corporately to advance their political interests.  OWS is an example.

Coservative Justices decided that money is free speech and wiped out years of legislation that attempted election reform.

To be precise, setting limits on the political use of money (discounting bribery) is tantamount to limiting political speech.  Outrage is all well and good, but how do you get around the First Amendment problems with limiting spending on political messages?  And why do the newspapers get a pass as they did with McCain-Feingold?  Is it because reading the candidate recommendations of liberals is good for us?

Another conservative Justice or two and abortion may become illegal.

That’s doubtful, but it’s probably a good way to fearmonger people into voting for Democrats.  Roe v. Wade is just plain bad law, and it was recognized as such when the decision was made even by notable liberal critics of the Court (one of Bill Clinton’s federal court nominees was also a critic of Roe v. Wade, iirc).  Reversing Roe v. Wade would certainly make it easier to outlaw abortion, but any such law would have to come from Congress, and that’s not happening without a filibuster-proof majority in support.  Do you see that happening?  Seriously?  If Roe v. Wade was reversed the likely outcome is that more laws restricting abortion would go into effect.  Things such as tighter time constraints and the like.  Abortion, as ugly as it is, is probably legal until a substantial majority of the public comes to oppose it.

Perhaps separate but equal schools will again be the order of the day.

Huh?  For whom?  If you’re talking about charter schools then I’m all for it. 

Maybe states will be allowed to gerrymander their voting districts at will to exclude the impact of minorities voting.

Ironically, the most ludicrously gerrymandered districts tend to be those carved out to ensure the election of minorities.  Wouldn’t it be terrible if redistricting was colorblind? 

But even as the Court currently stands, if the coming Presidential election is so close as to come down to one state with contested election results, then Romney will undoubtedly be selected.  What the Supreme Court has been doing is not impartial interpretation of the Constitution.  It is interpretation of the Constitution in whatever way that serves their particular political bias.

Could you conclusion perhaps be colored by your political bias?

Conservatives have robust, reasonable arguments on all of these issues.  You should talk to a conservative from time to time and keep an open mind.

Bryan,
Take away all the people and you’ll find no corporations left.  Corporations are people acting corporately.  They can’t not be people.

Yes they can, a fully automated corporation would still be considered a person by this court.

Write4U - 04 April 2012 03:40 AM

Bryan,
Take away all the people and you’ll find no corporations left.  Corporations are people acting corporately.  They can’t not be people.

Yes they can, a fully automated corporation would still be considered a person by this court.

How does a corporation automate, for example, its board of directors?

I think what you’re suggesting is impossible.  But if you gave a legitimate example of an automated corporation then that would settle the issue.

Brian: “Actually we don’t all need healthcare…”

We are all subject to the possibility of needing healthcare at any given moment.

Brian: “That doesn’t seem like an outrageous decision to me unless you’re correct that anyone arrested for any reason may be so searched.  I don’t think you’re correct.”

The subject of the case was in the passenger seat of his van.  His wife was driving.  I think their daughter was with them and they were going to the in-laws for dinner.  The wife was pulled over.  The husband showed evidence of being the owner of the van.  The police ran his name and it came up, erroneously, that he had an unpaid traffic violation.  The man showed the police a letter confirming that he had in fact paid the fine.  It didn’t matter.  He was taken to jail and was strip searched. He had no contraband.  After being in jail for a week, he was transferred to another jail and strip searched again.  (Surprise ... he still had no contraband.)  He was kept in jail another week. 

The Supreme Court ruled that the strip searches are acceptable for the sake of security. One Justice conjectured what if Timothy McVeigh (who was stopped for a routine traffic violation before blowing up the OK city fed building) had been arrested.  So apparently, anyone who is stopped by the police for any reason is to be treated as a possible Timothy McVeigh.

TimB - 04 April 2012 11:23 AM

Brian: “Actually we don’t all need healthcare…”

We are all subject to the possibility of needing healthcare at any given moment.

Likewise with hammers, global positioning devices, mouthwash, toilet paper and shoes.

Things we might need at any given moment isn’t a particularly good limiting criterion.

Brian:  “Oh, great.  Now I know why I think the way I do. ”

I did not mean to include you in the large part of the population of conservative Republicans who are biased by simplistic Republican talking points. Clearly you are above average intelligence and have some critical thinking skills.

Bryan - 04 April 2012 11:41 AM

TimB - 04 April 2012 11:23 AM

Brian: “Actually we don’t all need healthcare…”

We are all subject to the possibility of needing healthcare at any given moment.

Likewise with hammers, global positioning devices, mouthwash, toilet paper and shoes.

Things we might need at any given moment isn’t a particularly good limiting criterion.

Society does not feel obligated to provide you with a hammer, global positioning device, mouthwash, toilet paper and shoes whenever you happen to need it.  But if you don’t have medical insurance, and are suddenly struck by lightning and survive, you will be given healthcare at the expense of the rest of us

TimB - 04 April 2012 11:40 AM

Brian: “That doesn’t seem like an outrageous decision to me unless you’re correct that anyone arrested for any reason may be so searched.  I don’t think you’re correct.”

The subject of the case was in the passenger seat of his van.  His wife was driving.  I think their daughter was with them and they were going to the in-laws for dinner.  The wife was pulled over.  The husband showed evidence of being the owner of the van.  The police ran his name and it came up, erroneously, that he had an unpaid traffic violation.  The man showed the police a letter confirming that he had in fact paid the fine.  It didn’t matter.  He was taken to jail and was strip searched. He had no contraband.  After being in jail for a week, he was transferred to another jail and strip searched again.  (Surprise ... he still had no contraband.)  He was kept in jail another week. 

The Supreme Court ruled that the strip searches are acceptable for the sake of security. One Justice conjectured what if Timothy McVeigh (who was stopped for a routine traffic violation before blowing up the OK city fed building) had been arrested.  So apparently, anyone who is stopped by the police for any reason is to be treated as a possible Timothy McVeigh.

Your reply ignores the definition of “arrest” I provided and glosses over the fact that the victim is very likely to have a strong civil case against the law enforcement organization involved. 

Arrests often do not involve detention in a jail facility, which would negate the need for a strip search as a safeguard prior to jailing someone.

The distinction you’re failing to make in the specific case is that though the person was wrongfully arrested that was not the issue before the court.

The decision was a victory for the jails and for the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses.

http://www.guardian.co.uk/law/2012/apr/02/supreme-court-strip-search-jail

Well, there’s an aspect of the story you don’t see every day.  Thanks, Guardian.  Obama’s a Republican after all.

Brian: “Could you conclusion perhaps be colored by your political bias?”

Of course, as is yours, I would imagine.  It’s just that I believe that my political bias is primarily a factor of my ability to percieve and analyze the contingencies in play, most effectively.  You might say the same from your perspective or perhaps your biases lie elsewhere.