I pit Tenthers

The BBQ Pit
1

What’s a tenther, you might ask?

Well, here’s a few of them:
-Michelle Bachmann
-Ron Paul
-Rick Perry
-a great many libertarians

What do all of these people have in common? Well, they oppose legislature like Obamacare on the bounds of the 10th amendment:

They take the 10th amendment essentially as a carte blanche to oppose any and all congressional legislature in regards to… well, anything they don’t like. Basically anything on the federal level which is not explicitly mentioned in Article 1, Paragraph 8. What’s in Article 1, Paragraph 8, you might ask?

Maybe you noticed something in this paragraph that makes you instantly smarter than Bachmann, Perry, or Paul. Here, lemme run that up again:

Call me crazy, but “General Welfare”… Wouldn’t that include things like health care? In fact, isn’t that kind of broad enough to justify a whole lot of social programs?

Not that there aren’t at the very least somewhat valid reasons to worry about an ever-expanding federal government, but seriously? The 10th amendment is not a catch-all for federal legislature. §1.8 is not a list of “everything congress can legally do” if you ignore the general welfare of the nation. Stop acting like it is.

2

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If the powers … are reserved … to the people, doesn’t that mean that the people (by electing representatives) can make laws that then enumerate the not-named powers?

But then, these are people that probably don’t know that “Seperation of Church and State” is actually in the Constitution.

3

Not at the federal level. The amendment specifically enjoins Congress from legislating outside the areas of their enumerated and implied powers.

No it isn’t. But the establishment clause is.

4

So what, then might constitute a limit on the federal government’s powers?

It seems a huge waste of time for the authors of the Constitition to list all these powers for the federal government, and then add that one phrase in that means, according to you, “anything else at all that we want to do, as long as we can characterize it as for general welfare.”

But you tell me, Budget Player Cadet: under your construction, what, if anything, would be an example of a power the federal government does not have?

5

Nope. The general welfare clause is important for some programs, but Oabmacare stretches way past that. In order to make its healthcare proggies work, the government must abrogate numerous rights, as well as interfering with intra-state matters. They could jack up taxes to pay for it regardless and legally, but even Progressives don’t seriously consider that because they can’t, and nobody else considers it because it’s be a disaster.

This is why so many governemnt programs fall back on a really twisted reading of the Commerce Clause, which has become known as the Elastic Clause because so many courts used for farcical concepts.

For example, the government gets away with prosecuting pot growers in California, despite the fact that it’s not illegal in California: the court held (I Am Not Making This Up) that marijuana grown, rolled, and sold in CA is subject to national law because it “affects” a theoretical national market in pot, assuming it exists at all. Of course, this is flatly against the actual Commerce Clause, but that meant nothing to the liberal justices.

Obamacare has a similar issue, where the governemnt claims to power to force people to buy something. Right now, this is proving a hard pill for the Supremes to swallow, since it amounts in essence that the Commerce Clause would be written out fo the Consitution finally and compeltely, while essentially granting infinite power to Congress to do anything, since there’s nothing at all which cannot then be described as falling under it. Heck, what would Free Speech mean then? The government can mandate that you buy the services it wants, support the causes it wants, and not with taxation but with force but with “fees”.

Leftists beware - you may smirk and pat yourselves on the back now, but once you set the precedent, I see no reason not to force you to watch Fox news and listen to Rush Limbaugh, to buy broccoli and purchase the cars we decide you should purchase. Of course, you’ll whine and moan over it, but I generally enjoy watching people sleep where they shit.

6

“The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers…”

7

“Call this mandate what you will—an affront to individual autonomy or an imperative of national health care—it meets the requirement of regulating activities that substantially affect interstate commerce.”

“Health care and the means of paying for it are “quintessentially economic” in a way that possessing guns near schools, see Lopez, 514 U.S. 549, and domestic violence, see Morrison, 529 U.S. 598, are not. No one must “pile inference upon inference,” Lopez, 514 U.S. at 567, to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through “health insurance . . . sold by national or regional health insurance companies,” 42 U.S.C. § 18091(a)(2)(B), is economic in nature.”

Thomas More v. Obama.

8

Three things.

  1. According to the wording, it is very vague.
  2. It’s up to the supreme court judges in the first place, and they seem to be coming down hard on the side of it as a catch-all.
  3. I think the current state law system is horribly stupid.

Hypothetical health care program. I was careful not to say “obamacare” because I figured that there would be more to it.

Or, you know, they’re interpreting it to the best of their abilities? As far as “stupid assumptions is the legal system” go, “Liberal supreme court justices pushing social agendas” is right up there with “republicans being mostly lizard people”. Especially because, well, how many of the justices actually are liberal?

The commerce clause is another one of those vague catch-alls that can be interpreted several ways. The claim of “it’s what the founders wanted” is something I find ridiculous; we’re already basing our laws on a 200-year-old document (of which some parts are horribly out of date); should we really be limited there to what we think the founders thought about it? Furthermore, there is a national pot market. Not a legal one, but it’s there.

As to the rest of your post… You don’t see a difference between “making everyone buy health insurance” and the other examples you cited? Really?

9

Then why isn’t everyone up in arms over being mandated to purchase car insurance? Because it’s mandated by the state? Really? That’s the huge difference?

They seem similar to me, everyone benefits from all drivers carrying insurance. The cost of health care could drop if everyone shared one insurer and was insured. Both cases, the greater good, to my mind.

10

As is the Free Exercise clause.

SOCAS is a shorthand for those two, taken together.

SOCAS isn’t in the Constitution in so many words. But it’s there for all intents and purposes.

11

Oh look, precedence. Smiling Bandit, will you fight to the death to defend my right not to buy car insurance? Or is it not important because it’s not on the federal level?

Ooh, what about Social Security? We have to get that too!

Is Germany turning into a fascist regime? After all, we have to buy into:

  • Car insurance
  • Health insurance
  • Public pension
  • several other government programs depending on whether or not you work
12

Oh God, not this again. We need to make it a bannable offense* to offer up this argument after all the times it has been shot down.

  1. State government is not federal government. The states are assumed to have plenary power, subject the limits place on them by the Constitution. The Federal government is assumed to have limited powers, subject to powers granted to them by the Constitution.

  2. No states requires anyone to buy car insurance. Don’t own a car? No need to buy insurance. And the insurance is for use on public roads, to ensure against damages to other people. You are not required to buy car insurance for yourself.

If they seem similar, it’s only because you haven’t looked closely enough. It really is not the same thing in the US.

Ultimately, this is going to come down to the SCOTUS. We’re in uncharted territory with the mandate, but if I had to bet, I’d bet on them ruling it’s constitutional.

*But we’ll forgive you Canadians since your so polite and everything. :slight_smile:

13

IMHO, the real problem with Tentherism is that it’s just not a workable idea for a whole bunch of reasons.

First, we’re a nation in fact, and not a collection of states. We take it for granted that while there may be some minor changes in how things work when moving from one state to another, the essentials will be pretty much the same everywhere.

Second, this unity dramatically increases our wealth. Fifty smaller economies, separated by substantially different laws and regulatory environments, would have a lot less interaction and a lot less efficiency and optimization than one unified economy.

Third, people may be poorly informed about what goes on in the Federal government, but that’s nowhere near as bad as people’s knowledge of what their state governments are doing at any time. And as a result, state governments typically have a much worse problem with regulatory capture and lobbyists running the legislature than the Federal government does. That might be a chicken-and-egg thing, but how much of a gamble does one want to take on that?

Fourth, most states are pretty awkward units, badly formed to be mini-nations. They spread over different kinds of geography from mountains to ocean coastline, while everything from watersheds to cities are chopped up between multiple states. We have the state boundaries we have because of where people drew the lines between one and four centuries ago, but nobody in their right mind, starting from scratch, would draw anything remotely close to this set of lines today.

Finally, the states are, by and large, the wrong level for dealing with practically every problem under the sun. Many problems do have their best solutions at a sub-federal level, but most of those really need to be dealt with at the level of a city or county, or at most an urban area. I’d be hard pressed to come up with a single problem or issue for which a state is the best fit for addressing it.

In short, regardless of what the Constitution says, or how we might choose to interpret it, Tentherism is stupid.

14

To me, it’s not as important because car insurance is not completely F***** up as health or home insurance. With the latter two you can get instantaneously dropped for making a claim, or for no reason at all (granted this is more common with home insurance.) Whereas with car insurance, when you make a claim, your rates will simply go up to match the claim.

15

The fractal network of state lines that pass between between any two arbitrarily close points within the United States actually dates back to 1942 (Wickard v. Filburn).

16

'K, now formulate it in a way which:
a) makes sense in the 21st century AND
b) Leaves it having anything to do with the argument it answered to.

AFAICT, it was a response to this idea that “forcing you to buy health insurance is the first step in forcing you to buy anything!” I’m aware that the constitution mandates different powers to the states than to the fed; I’ve also pointed out that I think that this separation is about as dated and stupid as the various state constitutions that bar atheists from office.

Snarky option one: “Nobody requires anyone to buy health insurance. Don’t have a life? No need to buy insurance!”
Snarky option two: “Dude, in Maine, if you don’t have a car, you might as well not have a social life.”
Realistic option: so? Why does this difference itself from health insurance? You have to own a car… Which, for most people, is a necessity. And then you have to buy insurance. How is that fair?

Furthermore, what really bugs me about this whole thing is this: what if, instead of it being formulated as “you must buy health insurance”, it was formulated as “this is an additional flat tax you must pay; in return, the government will provide this specific service, of which you get to choose the options you want”.

…Oh look. Suddenly it’s every single other government service ever.

Hell, how the heck does Social Security square with the tenth?

17

There is nothing about federalism that makes it inherently antiquated.

Your snark isn’t even good snark. It works even worse as a coherent argument.

But you’re right about 1 thing. SCOTUS has already affirmed Congress’s power to tax for pretty much anything. So, tax like a mo-fo and see how well that works out for you in the next election.

18

It doesn’t - and now you’ve hit on a key point, and also now you can see where the precedent begins, with FDR stacking the SCOTUS and threatening to change it’s very nature, in order to strong-arm his “reforms” of the day. I’m not saying every one of the reforms was bad, but FDR was not beyond hook and crook to twist the Constitution to get his way.

19

Propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes?

20

Last time I checked, Helvering, Steward Machine, and Carmichael were still good law.