Sure it is an interstate one. Lawn mowers built in one state are bought in another.
I’m not sure I follow you. Why do you figure one part of the legislation gets a pass on being unconstitutional so long as the rest of the legislation is okay?
Can the next Congress get away with, say, mandating a cruel and unusual punishment – so long as there’s enough other stuff in the bill to set up a “sure, if you completely ignore the rest of the legislation” reply? Can they retroactively set up such a punishment in best ex post facto style, so long as the legislation is voluminous enough and otherwise passes muster? Can all that stuff about jury trials or women voters or whatever get bypassed so long as they (a) of course don’t simply enact a law to that effect, but instead (b) bother to take up a whole bunch of pages doing something else?
It’s not “get a pass”, it’s the determination of whether or not the action affects “interstate commerce”. As I pointed out, if Congress just decided that everyone has to buy health insurance or go to jail so that they could increase health insurance company’s profits, I don’t think that passes Constitutional muster. But requiring a person to buy health insurance or pay an additional tax to make the Guaranteed Issued and Community Rating, both of which are clearly matters of interstate commerce, it’s a much closer question.
So unconstitutional measures are allowable if they are part of a larger legislative package intended to accomplish a constitutional purpose?
Is this a commonly-recognized legal principle? I’m struggling to think of an example.
Well, OK, then. That’s why I added in the second part of that paragraph. Were the Supreme Court to determine that landscaping is an interstate market, then upholding the ban on self-landscaping would be a direct application of Wickard. Likewise with banning home-cooked meals. To borrow a phrase from Potter Stewart, such laws would be “uncommonly silly,” but nevertheless, Constitutional. I’m with Akhil Reed Amar on this one (which is why I am not Justice Bricker, of course): the check on such laws is not the Constitution, but the ballot box.
No, because those provisions fail the “Proper” part of Necessary and Proper: their effects are plainly unconstitutional. I don’t see any evidence that the actual effects of the mandate are unconstitutional: the same effects could have been achieved through a plainly Constitutional application of the taxation power.
Presumably individuals with sufficient cash reserves are capable, as some larger corporations do now, of setting up self-funded insurance. Presuming such a person met the requirements set forth in (IIRC) ERISA (1974) Section 514 and in any applicable state laws, I see no reason to think they’d be legally obligated to pay the penalty.
And that is absurd. Were the Supreme Court to determine that a leg was a tail, it could apply the legislation for tails to legs. Once you allow the Constitution to be bent to absurdities, it loses all meaning.
I think MilTan meant something different than what you say here–though I do think his words could be read either way.
I’d state MilTan’s point thus:
“If landscaping is an interstate market, then upholding the ban on self-landscaping would be a direct application of Wickard.”
And, to answer your point, I’d also say that:
“If legs are tails, then legislation applying to legs also applies to tails.”
That appears unproblematically true to me.
And an inflexible constitution is a suicide pact.
A leg is not a tail. Even if the Supreme Court says it is.
For all legislative and legal purposes, the Supreme Court is the final word on legs and tails. To suggest otherwise is to bend the Constitution to absurdity and render it meaningless.
Actually the notion that the Constitution says whatever a majority of the Supreme Court says it says, even if it doesn’t say it, is what makes the Constitution meaningless. As in this case.
The individual mandate strips the term “interstate commerce” of all meaning. If you don’t buy insurance, you aren’t engaging in commerce. And if you aren’t doing something, you aren’t crossing state lines doing it. But Congress is claiming the right to force you to do something under the notion of its power to regulate interstate commerce. Even though no commerce is occurring.
It’s rather like Kelo v. New London, where you can be kicked out of your house by someone who pays more taxes than you would. They said they could do that under the public takings clause. But it wasn’t for any public purpose - it was a private real estate developer. So “public” means anything or everything they want, or nothing at all.
“Public” means “private”, “commerce” means “no commerce”, “interstate” means “whether it crosses state lines, or not”.
Regards,
Shodan
As you conceded, Wickard never decided whether the government, by force of law, could require Wickard to go to the local farmer’s market and buy wheat. Since the Court was silent, why can’t they squeeze a distinction in there? Distinctions are made all of the time. Judicial activism is creating something out of whole cloth. How would it be inconsistent with Wickard to rule:
Congress may regulate a product in interstate commerce even if your particular use of the product is intrastate. Once it has done so, it can prohibit you from manufacturing your own product. But, what it cannot do is force you to participate in that market.
Seems very consistent to me.
It’s not inflexible. There are two procedures in the document itself that ask for amendments. “Amending” it by pretending certain words go away is, IMO, a suicide pact because you can’t rely on anything in it. A judge can waive it away.
So if SCOTUS strikes down the mandate, it isn’t necessarily unconstitutional?
The constitution is not inflexible…there is a way, I’m sure you are aware, to amend it. No judicial bending necessary.
Judicial review is not unconstitutional.
It’s un-Constitutional whether or not they strike it down, because it contradicts the plain sense of the text. But I get the feeling you and I are using “un-Constitutional” in different ways.
Plessy v. Ferguson was un-Constitutional no matter whether the Supreme Court changed its mind later or not. Likewise with Kelo, no matter that it still stands.
The Supreme Court can be wrong - if nothing else, Plessy v. Ferguson showed that.
Regards,
Shodan
Only because they reversed themselves. They are, by definition, never wrong if there is no reversal. You may disagree, or believe they decided wrongly, but Constitutionally, they are only wrong if they say they are wrong.
But if a leg is a tail, then tail legislation applies to the leg.
And if landscaping involves interstate commerce, then Wickard applies to landscaping.
The absurdity of the statement “a leg is a tail” is irrelevant. It has no relevance to the question whether Wickard applies to landscaping. That’s the point. What is relevant is the question of whether landscaping involves interstate commerce.
If the SC believes landscaping involves interstate commerce, then the SC ought to apply Wickard to it.
Where does the Constitution say or imply that the correctness of the SC’s decisions depends only on what the SC says?