If you wish. However, do please note that those listed do include the commerce clause and the necessary-and-proper clause.
If you wish. But what is the mechanism by which “the people” exercise their powers? And which powers do you claim deny the people the ability, via that mechanism, to create a national insurance system, one that you’ll note is far less a reach of government power than the existing and legally unchallenged Medicare single-payer system?
It shouldn’t need explaining, but to some it sadly does. We’re a representative democracy. The government is us. It’s how we act in concert. We want ACA, and had our elected representatives create it via the power we delegated through them. An irresponsible minority that didn’t like it does not respect our democracy enough to accept it, or any other outcomes they didn’t like.
Now, Terr won’t answer it, maybe you will: Where do you see this alleged “limit” in the Constitution? If you’re sticking with this enumerated-rights hardline stuff, do please note that you’re arguing against over two centuries of precedent and history, among other things.
I find it odd that the framers would see fit to include a mere tautology in the founding document. Why didn’t they follow it with:
Amendment XI: If your aunt had testicles, she would be your uncle.
Is it really consistent to read the tenth in that way? Why write a limited list of powers, reserve the rest of the powers to the states, and say, “Oh, btw, that list of powers includes all powers and nothing is left to the states.”
If a lawyer tried to argue that in court about any other contract, the judge would laugh his ass out of the courtroom. But since these judges want to expand federal power, they give that serious thought.
The very fact that there is a list of powers, all by itself means that there is a limit. Forget about what any powers say. If you let me take care of your house while you are on vacation, and say, “You may do these things, 1-15.” By you giving me a list, by express implication, means that by powers to watch over your home are not unlimited. I can’t pick out item #9 and claim that it gives me the power to do whatever I want. The very fact that you had a list shows that my powers are limited.
Next, the tenth amendment reinforces this idea. One of the original objections to the BOR was that since regulating speech and the press wasn’t an enumerated power of Congress that the BOR was not only unnecessary, but would give the implication that Congress had powers to do other things not specifically prohibited in the BOR.
Therefore the 9th was written guaranteeing people other rights, and the 10th was written specifically reserving residual power to states. The 9th is a limitation on federal power. To say that it would include the “right of people to institute Obamacare” turns the 9th on its head as well. It’s a protection against federal power, not federal power.
So again, by express implication in the 9th and 10th, if you are reserving an undefined list of other powers, it is a misconstruction to take the previous list and say that it contains all power.
So, back to my care taking, your list of 1-15 also contains a provision that I may do what is necessary and proper for 1-15, but that nothing in the list shall hamper any other rights the homeowner might have and that all other powers not listed are reserved to the homeowner.
Could you, I, or anyone else look at our care taking contract and believe that you have granted me unlimited power over your home? Could anyone believe that the contract would give me more power than you over the home? Forget about the terms, just the structure. Would it pass the laugh test?
And once you pointed out to them that this would mean the federal government can prohibit you from mowing your own lawn, they will realize that the federal government can regulate the sale of lawn mowers, gas and whatever, but they still can’t prohibit you from mowing your own lawn once you acquire those goods.
So, unless the federal government is ready to forbid the ownership of lawnmowers by private individuals (and forbid them from even renting them), then no, it can’t forbid you from mowing your own lawn. If it can, then it absolutely is time to reverse the decision in Wickard and draw a line in the sand on what the commerce clauses should mean.
Wouldn’t the Wickard decision already let the federal government forbid you from building your own lawnmower – assembled entirely from in-state parts, for the sole purpose of mowing your in-state lawn – by arguing that even one man thus playing consumer to his own competing product reduces the amount of the stuff bought and sold on the open market, thereby affecting interstate commerce? Isn’t that pretty much the Wickard reasoning, word-for-word?
I guess so, if it could be established that lawn mowing is interstate commerce. I’m sure there are multi-state lawn care companies, so perhaps it would be easy.
It should be noted, though, that even the SG did not argue that the commerce clause, as interpreted by Wickard, did not grant the federal government unlimited powers. But I don’t recall if they actually listed legislation that would be unconstitutional in regulating activity.
A question: is the mandate phrased in the law as a mandate or as a choice?
Is it saying, “failure to purchase insurance is a misdemeanor, punishable by a $750 penalty”?
Or is it saying, “citizens may choose either to purchase insurance or to pay a $750 penalty”?
If it’s the latter, then the shorthand appearing in this thread–that people are required to buy insurance–is importantly false. Because if it’s a choice between paying $750 a year to the state or buying insurance, that’s not a requirement to buy insurance.
And therefore it makes no sense to say that the point of the law is to get everyone to buy insurance. Rather, the point is to be sure that people are taking responsibility for the cost of their health care, either by buying insurance or by paying some money to the state to cover their chances of needing the emergency room when they lack insurance.
The Constitution isn’t a contract, and Madison himself thought it was a tautology:
It’s a tautology in the sense that it doesn’t actually tell you anything. We know that the federal government is one of limited powers regardless of the Tenth Amendment. It’s not that it’s meaningless; it’s just a restatement.
I am certainly not adopting EL’s position that there are no limits on the power of the federal government, and I think he might have lost the train of his own argument. I’m saying those limits are not contained in the 10th A.
Do you still have Chemerinsky? There’s a section in the chapter on fundamental rights that discusses the 10th in the abstract. He notes that courts don’t generally find any rights in it, but use it to justify the adoption of rules protecting rights that are found elsewhere. I think that’s pretty much what it’s good for.
[QUOTE=John Mace]
And once you pointed out to them that this would mean the federal government can prohibit you from mowing your own lawn, they will realize that the federal government can regulate the sale of lawn mowers, gas and whatever, but they still can’t prohibit you from mowing your own lawn once you acquire those goods.
[/QUOTE]
I think all of this reductio ad absurdum has kind of forced lots of you to miss something very basic: the federal government already does exactly what you’re all breathlessly throwing out as the horrifying logical extension of the ruling, and nobody thinks it’s trampling on the Constitution when it does it.
You guys seem to have gotten it into your heads that yard maintenance is some kind of sacrosanct activity exempt from interference by the government because it’s your own property. It’s not. Hell, your county or municipality almost certainly tells you what days you can water on and whether you can cut down any or all of your trees.
Seriously, it’s not some kind of huge gotcha that the feds can prevent you from mowing your own lawn under Wickard. The whole point of the decision is that determining which industries require regulation and which do not is a matter for Congress to determine.
No doubt somebody will say “regulating drugs is different from regulating lawn mowing”. It’s not, at least not in terms of the constitutional framework that existed at the time Wickard was decided. Indeed, Congress explicitly noted that the Controlled Substances Act was passed under its Commerce Clause authority.
[QUOTE=21 USC 801]
(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because—
(A) after manufacture, many controlled substances are transported in interstate commerce,
(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
[/QUOTE]
Well, I think that the decision in Raich is highly controversial, and the state/local governments are not subject to the same limitations that the federal government is, so that’s not relevant.
As I said, the feds can regulate the sale of lawn mowers (per your example of pesticides), but the idea that they can tell you can’t mow your lawn would not stand up to a court challenge. They might say you can’t use an internal combustion engine to mow your lawn, but when the feds come and tell us we can’t maintain our own gardens with our own hands, then it really is time for a 2nd amendment solution!
No, it’s the feds telling you that you can’t, which is why federal law enforcement officials come and arrest you if your state does tell you that you can.
The federal law against marijuana was upheld by the Supreme Court, based on an interpretation the Commerce clause. In that case, the conservative wing of the court all supported the broad interpretation of the Commerce clause.
No. It was about whether the Controlled Substances Act was constitutional as applied to Raich (ie., in the context of manufacture solely for personal use in a state which did not criminalize such activity).
Why not? If the law basically says, “Look, you’re part of the health care market–so either buy insurance, or give the state some money to cover your health care needs,” then the market in question isn’t health insurance, it’s health care. The state gives everyone an option how to cover their participation in this market.
If the state only allowed people to participate via insurance, some of the complaints in this thread would have more validity. But the state gives options.
You mean “future possible health care needs”? Are you sure $900 or so annually covers “future possible health care needs”? If it does, then that should be the annual insurance premium, don’t you think? And if it doesn’t then it isn’t the “money to cover your future possible health care needs”. It’s a fine.
