The constitutionality of Reidcare
I agree with this WSJ article by Orrin Hatch, J. Kenneth Blackwell, and Kenneth A. Klukowski that the Senate health care reform bill is unconstitutional, representing an extension of federal power far beyond what was envisioned, intended, or allowed by the framers.
But I wonder whether it will matter. Conservative justices are likely to find it unconstitutional, liberal justices will rule for it, and swing justices are unpredictable. Right now the Court is unusually balanced, with four predictable liberals and four predictable conservatives and one unpredictable swing vote. But to overrule an act of Congress takes guts, and could this Court (particularly swing vote Kennedy) muster the requisite intestinal fortitude to do so in the face of an overwhelmingly liberal House, Senate, and President bent on passing this “historical, transformative” piece of legislation? Somehow, I doubt it.
Somehow it is like 1934 deja vu all over again.
Once you ignore the intent of the framers *what’s to argue*?
It’s a living Constitution (i.e. we can just make sh*t up).
So it’s unconstitutional, but the Dems like it, so the Supreme Court won’t bother ruling it unconstitutional?
Uh, WHAT fricken country are we talking about again? Didn’t we used to brag that we were a nation of LAWS that applied to ALL?
Wow– just –wow.
Who knew that an affirmative-action Senator backed by a wildly liberal press and radically-liberal “community organizers”, could drag what was once the last-best-hope-for-mankind down this far, this fast?
Seems we’ve got a “when people fear their government there is tyranny” issue here; we need to push really hard this next year to switch back to “when the government fears its people there is liberty” mode.
PS- Not to say I trust the “big-tent” GOP to not try some of this same sh*t if their dreams of a rout at the polls in November come true; but I DO expect that the still-wildly-liberal press will hold THEIR feet to the fire instead of praising them…
It’s a valid concern, but don’t forget how unpopular the bill is with the public. Also, the supposed benefits of the bill don’t really take effect for a few years, so courts could strike it down as unconstitutional without appearing to be upsetting the (new) status quo to an enormous degree.
As for predicting how the “swing vote” would vote, I’m wondering if here is any rhyme or reason to Justice Kennedy’s swing-votedness. Just because a justice sometimes votes with the conservatives and sometimes with the liberals doesn’t mean he or she is unpredictable. It may just depend on the kind of issue involved. For example, a moderate might vote with one side fairly consistently on issues involving the rights of criminal defendants. I’d be curious to hear anyone’s take on Kennedy’s jurisprudence on Commerce Clause issues.
A_Nonny_Mouse: the point I was trying to make is that eight of the justices have votes that are pretty predictable on this issue. Only Kennedy is a question mark, and he would represent the deciding vote. Does he have the courage, and the inclination, to stick to the more conservative position against the will of the other two branches of government? I really don’t know, and I don’t think anyone can predict. Justices tend to interpret and rule on cases in accord with their judicial philosophies, conservative or liberal. That’s the way it is, and I don’t think it’s anything new.
Conrad: good question, but I don’t know enough about the pattern of Kennedy’s votes. The article about him I linked in the above post doesn’t tell us a whole lot about him that’s relevant to the constitutional issues involved in Reidcare, nor does this. He is slightly more conservative than not, but quite unpredictable, as far as I can see.
If any justice votes to allow this to stand, I say impeach them as soon as possible if congress is realigned. We see a SCOTUS that cannot read the bill of rights and see that the 5th Amendment, “nor shall private property be taken for public use, without just compensation” plain and simple does not allow government to take property from one private person to give to another. That 5-4 vote on Kelo tells me we will lose on ReidCare and that should also be a basis for impeachment of the 4 remaining SCOTUS jurists on that vote alone.
If in 2010 this congress is not changed, our country doomed to move towards an authoritarian regime. As the executive becomes more authoritarian some civil strife will breakout ensuring more authoritarian laws and regulations. We will soon see a country devoid of constitutional protections. We already see congresspersons in general refusing to vote on the basis of their oath first and foremost saying that the courts are the determiners of constitutionality. I was told that by my Reps. office manager.
AMR–In the only impeachment of a Supreme Court Justice so far in U.S. history, in 1804 the House impeached i.e. charged Justice Samuel Chase–one of the signers of the Declaration of Independence–with letting his Federalist views influence his deliberations, and the Senate, after a trial, refused to convict him.
In any case, can you see any Justice–with anything like the composition of the current House and Senate, or even the House and Senate after a landslide Republican victory in 2010–being served with a bill of impeachment voted through by the House–based on the two prescribed Constitutional grounds of either criminality or some major breach of “good behavior”–and the Senate, after a trial, voting to impeach. I can’t, unless things get much, much worse but, then, under Obama & Co. they could.
It seems to me, though, that it would be Clinton’s impeachment all over again.
History favors the pesimists, I fear. Remember that this court upheld that unconstitutional monstrosity called campaign finance reform.
I kind of thought the Constitution was a dead letter since we started killing our unborn.
The socialization of the auto, health, and legal sectors of our economy are just kind of a malthusian icing from where I sit.
oooh-
Kae Arby:
I believe that the Bush administration – and I’m talking from Bush down to the lowest ranked staffer in the executive – was completely blindsided by the decision upholding CFR.
And shamed; they were intent on taking away planks the Democrats could exploit. CFR should have been vetoed, but would be costy politically…. so the brain trust said “the Supremes wouldn’t EVER let something this flawed get by…”
And the rest is history.
Checks and balances fail when expediency, not duty, is the pivot upon which important decisions turn.
There’s been a lot of cowardice in government lately.
The individual mandate idea highlights a recurring theme in this bill. Even major portions that are presented as a regulation of business (constitutional) are being used as a backdoor to simply regulate the public’s use and purchase of healthcare (unconstitutional). I’m not hearing this brought up much. Once you cut out the BS, it’s really a huge “step forward” (from parking tickets decades ago to controlling your body / healthcare today) for the progressives. Now their beloved regulatory apparatus / administrative law system is openly moving to control the public… its old hat in the UK and you’ve probably read about absurd rules they have their that were never passed as laws… well… unless we hammer this home and roll the dems back, we will be there soon.
“Conservative justices are likely to find it unconstitutional, liberal justices will rule for it, and swing justices are unpredictable”
Sad commentary on a nation rule by law not men. I despise those responsible for the erosion of the remarkable system left to us by our founders. A grand experiment indeed yet increasingly in peril.
Amused Observer: You may notice that in my comment of 4:06 PM I added the following:
Justices—and people—are liberal or conservative because they believe in certain basic principles (including how much leeway the law gives to expand on and “improve” it as time goes on). So it’s not a surprise to find that justices dispense legal decisions according to these same principles and beliefs. This is not a new phenomenon, either. They are supposed to strive for objectivity and the rule of law, but it is true that men and women are the ones interpreting that law.
The brilliant founding fathers understood that the natural tendency of government is to suck more and more power from the governed. The Supreme Court is the mechanism those amazing men created to roll back legislation that Congress creates with powers it does not have (i.e., powers not specifically delineated to it by the Constitution). Congress and the President can not implement social justice policies by trampling on liberty, no matter how fair or enlightened the policy may be. The freedom loving founders believed the Supreme Court was a necessary check to prevent Congress from becoming a tyrannical power.
When Americans are forced to purchase insurance our liberty is being infringed upon by a totalitarian regime. And it sets a dangerous precedent. For example, the government owns 60% of GM and it also wants to pursue a policy of reducing the carbon footprint. Maybe Congress will create legislation mandating that only the Chevy Volt electric car manufactured by GM can be purchased in the future. It sounds like a crackpot lunatic extreme notion. But who would have believed five years ago the government would be forcing you to enrich insurance companies by mandating that you buy government approved health insurance from those companies?
If Neo-neocon is right, and the Supreme Court doesn’t strike down this as unconstitutional, then the Constitution should be ripped up and burned. The words on it mean nothing. Congress will have successfully stripped away our freedom with the consent of the Supreme Court, the institution whose purpose is to protect our liberty against a tyrannical government.
I find the SCOTUS less predictable than that. On high-profile items, we often believe that they vote according to their politics, but this is only partly true. The discussions over at Volokh over the last few years have been instructive to me on this. Some justices indeed seem to be locked into the current political divide, but there are countervailing pressures. They are each individually concerned about their legacy and historical reputation as well. This may not be any more noble, but it is at least different, creating a territory of indecision.
Secondly, the four-and-four are not all of a mind anyway. There are differences of approach and priority which often, but not infallibly, create similar rulings.
Thirdly, this SCOTUS leans to extremely narrow rulings. They might well overturn certain provisions but leave other parts unaddressed.
The Supreme Court is the mechanism those amazing men created to roll back legislation that Congress creates with powers it does not have (i.e., powers not specifically delineated to it by the Constitution). Congress and the President can not implement social justice policies by trampling on liberty, no matter how fair or enlightened the policy may be. The freedom loving founders believed the Supreme Court was a necessary check to prevent Congress from becoming a tyrannical power. That’s the theory. It seems to me, however, that the entire system of checks and balances structured in the federal constitution simply does not function. I am starting to doubt that it every really functioned as intended. Effectively, the only check-and-balance is Democrat-vs-Republican. Which has turned out to be rather ineffective (see, for instance, uncontrolled expansion of federal budget over past 10 years).
ELC: another check and balance was the respect most people in both parties had for the social contract and for their opponents. That has been on the decline.
To flog my favorite political dead horse, the 17th Amendment did away with a hugely important check and balance. Originally, the House was supposed to represent the people and the Senate was supposed to represent the states. A good deal of the explosive growth in the power of the Federal government in the 20th Century can be traced back to doing away with the states’ representation in Congress.
Campaign finance reform was an instance where all three branches of government failed us. Let’s pray that we don’t have any more such examples in the near future.
rickl: I am in complete agreement with you on the 17th amendment. Trouble was, by the time it was passed, direct election existed de facto anyway in a great many states already (see this).
Oh, well. I guess it was a good idea while it lasted.
Ma’am,
Please review Linder VS. US, 1925. Already established case presedence by SCOTUS indicates a 10th amendment prohibition for the Federal Government to control health care. State issue..period. Common sense for supporters of the Constitutional rule of law. Where government fears the people, there is liberty. Where people fear government, there is tryanny. Thomas Jefferson.
SIC SEMPIER TRYANNIS!
Unfortunately, if people who legislate and govern choose to act in “bad faith,” if they choose to deny what things plainly say, if they refuse to abide by what had been common, agreed on understandings of specific terms, then nothing written in the Constitution or the Bill of Rights really means anything in practical terms, or can and will restrain them i.e. they can do whatever they want and come up with some bullshit reason–supposedly sanctioned by those documents–for doing so.
Thus, the current idea–in opposition to “strict Construction,” which seeks to understand and apply the Constitution as the Framers intended–of the “living” Constitution that changes and adapts and “grows,” that expands and contracts–that discards or ignores certain parts and adds others–and that twists itself into a pretzel.
now we are all starting to see the check mate i saw more than a year ago… from courts i would mention, to other countries, to other actions, etc…
piece by piece we are discovering the positions of the players as they have been aranged. that is, we didnt know the pattern, they created this pattern and so know ahead what to argue.
through collusion, and coordination moving on as many fronts as possible, they have positioned things where those who cant see years ahead and understand implications outside of the focus, tend to spend time discovering the situaiton they are in AS it happens.
its not by any accident that we have such a make up in the court, the make up in the sernate and house, the make up of the president, etc.
50 years of moving pieces to converge near a date is what this is…. and during the whole 50 years of real activity, until the END GAME, no one cared to believe the implications and outcomes of adding everything together.
even now they still defend the parts of this change machine and want to increase them or at least not eradicate them (they cant see that without eradicating them there can be no e pluribus UNEM)
there is no stopping it, there is just analysing what is happening to you that you cant do anything about. a sadist likes hurting people, and in order to do that you have to first remove their ability to do anything about what your going to do to them. that is make em helpless, then reveal the plan and implications and moves… it doesnt matter.
this is what you are seeing now… the removal of the ability do do anything about it. the thing i said the germans referred to as a ratchet where movement only in one direction is allowed.
figuring out that your in the sitution where its checkmate in 10 moves… is the wrong time to figure out where things are going.
however the ones who argued reasonableness, insure that we will NOT conclude anything unless we know its checkmate in 10 moves, otherwise its potentially not and no action is allowed.
ergo
the end game cant be prevented since its actions are outside common belief, and we have not defended against it at all because of this, and even worse, we defend the organs of those actions even as they continue to do their harm… (we refuse to beleive that they are something to be removed – so like AIDS the desease can never be rooted, it will stay in wells for the next flare up, like malaria)
i had already claimed the constitution was dead… from roe v wade on…. (which front did that?)
interesting how some of the reasonable argued that as long as there was a constitution they would not worry… and i said if you cant tell the semblence from actuality, then you dont know its gone while a ghost is in place.
this is winning by other means.
if you cant beat them with superior weapons, and industry… infiltrate and change…
if you cant take them over by force, take them over by other means.
is this anything close to what neo liberalism promised? you go girls, what a liberated lot they are…
http://www.thesun.co.uk/sol/homepage/news/2790647/Hardy-Brits-defy-chill-in-2010.html
this is worlds apart from the promise of poets and painters and creative spirit being unleashed…
Hello. I have the habit of reading your blog, and I pretty much enjoy it. I think you make some very god analysis.
Let me say this one thing. Sometimes, one needs the opinion of an outsider. I have the feeling that you are quite pessimistic concerning the future of your country. So, let me say this: for all that I have been seeing and watching, America is pretty much alive and well. I think the neo-socialists are facing a fierce and powerful resistance, one that shall grow in numbers and quality and became louder and louder in the following years.
I do not fear for the future of liberty thanks to America; and I do not fear for the future of the U.S. at the moment. Of course, americans should continue to be as vigillant as ever – and not pessimistic.
Those were my two cents.
Best regards,
-Bruno B. L.
Unfortunately, we’re long past the point where anyone worried whether any new government program was constitutional or not. The libs will just say “it’s for the children” and that’ll be that.
Bruno B.L.: I certainly hope you are correct in your optimistic assessment of America’s future.
Wolla Dalbo Says:
“Unfortunately, if people who legislate and govern choose to act in “bad faith,””
Considering Obama ran as Mr. post partisan moderate guy…. the left / democrats / the living constitution thing = bad faith might be a great campaign theme….
Off topic
http://www.guardian.co.uk/world/2010/jan/03/peru-mountain-farmers-winter-cold
Peru mountain people face possibility of extinction because of bitter cold.
hmmmmmm…
Seems to me then need to snuggle more. 🙂
Baklava…
not funny
250 children have died already
planning for warming and getting cold means that right now, hundreds are dying aruond the world
india, and other places are having a bad time with people freezing to death.
however, for socialists, this misery and death is the goal… how else does a sociopath who is leading get their rocks off.
hard for nice people to understand that when that type sees pain and stuff and people beg to them, they feel GOOD…
Obviously, the OMessiah by his mere presence ended global warming. On a geological note (my field) climatic change is a constant, not an exception.
Seriously here is a note from my travels in the Andes almost 40 years ago, technologically there are places there that are at least 500+ years behind us. They used farming implements that I saw pictured in Spanish woodcuts from the 1500s.
Art, it happens in big cities like Chicago and New York City every year also.
Cold is a huge issue or the poor and elderly.
And no it isn’t funny that people are dying.
4 dead in chicago
10 years ago when i came back to the city, i found a man frozen to death… (sad. shot up on a stoop, fell asleep, i was the only one that noticed that he shouldnt be sleeping out in the cold, but i guess too late)
Baklava.. i know it happens…
and i also know that people make fun of bad things as a coping mechanism.
but many may not know that these are not small numbers… like the large numbers that died of heat in france, in rural countries, the poor die, and no one reports it…
i know you care baklava… thats OBVIOUS.
but i wasnt aware if you knew how many..
250 children is a lot for a poor community or area…
it can represent a whole generation keeping a populaiton alive… such pulses can destroy a small society 20 years later..
Cold snap claims 30 lives in N Bangladesh
About 30 people, including 28 children, have died of cold-related diseases in the last 11 days in northern Bangladesh as cold wave is sweeping over northern and central part of the south Asian country
scan the news and its a few in almost every city..
8 die from cold in Sirajganj, Dinajpur
In Ramnagar, Nilphamari, a 12 year boy Moinal Hossain and an old man died of cold-related symptoms
and in peru…
the number has been upped to 300 children..
Government figures record that more than 300 children died in Puno in May last year from the cold; NGOs say that the figure was probably much higher
given that such high numbers are very unusual…
its a sad situation and not one i can make fun of like in past years..
and yet…
they blame the cold on global warming!!!!!!!!!!
The few hundred people who live here are hardened to poverty and months of sub-zero temperatures during the long winter. But, for the fourth year running, the cold came early. First their animals and now their children are dying and in such escalating numbers that many fear that life in the village may be rapidly approaching an end.
In a world growing ever hotter, Huancavelica is an anomaly. These communities, living at the edge of what is possible, face extinction because of increasingly cold conditions in their own microclimate, which may have been altered by the rapid melting of the glaciers.
-=-=-=-=-=-=-=-
Climate change campaigners and development NGOs say that the failure of Copenhagen has signed the death warrant for hundreds of thousands of the world’s poorest and that a quarter of a million children will die before world leaders meet again to try to thrash out another deal at the United Nations next climate change conference in Mexico in December. Among them may be these children of the high mountains.
so YOU know that this information has been played with by others with a political agenda..
[or else you may have heard about this the past three years. if you go back and look at big articles, and whats happenin gin state, you can see over the past 30 years some very interesting clear patterns that people dont notice]
its a bad situation and the socialists are making it worse… because these articles are not to fix the problem but to USE the problem.
sad very sad..
Art,
We can’t possibly scan the news enough … or fathom the amount of misery that cold has caused.
And yes … we can only employ coping mechanisms or we will go insane
see moonbattery for the rest…
“Where does the Constitution give Congress the authority to mandate that people buy health insurance?” A simple question asked by a CNS News reporter of several of our U.S. Senators, some of whom helped to ram ObamaCare through just in time for Christmas. Let’s see what some of them said:
Republicans:
Sen. Orin Hatch (R-Utah)
http://www.eyeblast.tv/public/checker.aspx?v=Gd2GkUnzSU
Sen. Richard Lugar (R-Ind.)
http://www.eyeblast.tv/public/checker.aspx?v=Gd2GkUnz8z
Sen. Kay Bailey Hutchison (R-Tex.)
http://www.eyeblast.tv/public/checker.aspx?v=Gd2GkUuzaG
Democrats:
Sen. Bob Casey Jr. (D-Pa.)
http://www.eyeblast.tv/public/checker.aspx?v=Gd2GkUuz6U
Sen. Diane Feinstein (D-Calif.)
http://www.eyeblast.tv/public/checker.aspx?v=GdaGeuZu2G
Sen. Claire McCaskill (D-Mo.)
http://www.eyeblast.tv/public/checker.aspx?v=GdaGeuQuaG