More seriously, no, the language quoted is not remarkable and adopting persuasive language from briefs into opinions is an extremely common practice.
And that assume the truth of the claim that the Family Research Council is a hate group. I know the Southern Poverty Law Center feels they are, but I am not willing to consign the authority to definitively identify hate groups to the Southern Poverty Law Center.
No, no it really isn’t. And if you read Wickard you’d realize that. Wickard repeatedly makes clear that the Court is very aware it is not just about telling someone not to produce something on pain of being fined, it is about making someone make a purchase, on pain of being fined.
For example:
Quotes from Wicakrd v. Filburn, 317 U.S. 111 (1942)
Id. at 127.
Id. at 128.
Id. at 129.
The Court was very well aware the law would result in the person having to purchase wheat on the open market or pay a fine. This did not render the law unconstitutional. Nowhere does the Court even mention that this is acceptable only because Old Farmer Wickard (or Old Farmer Filburn, or whatever) could chose to stop being a farmer.
I think you have misinterpreted the decision. Nowhere does the court mention that Filburn MUST purchase wheat. He could have chosen not to purchase anything and not been fined by the government. As onerous as Wickard is, the decision does not compel anyone to engage in commerce against his/her will. IF you choose to use wheat to feed your animals THEN you must purchase it on the open market. Contrast that with “you MUST purchase wheat or pay a fine.” There is a clear difference.
Well, I think you are drawing a laughably thin distinction. As the case itself shows, albeit in dicta, the Court clearly contemplated that this law would force a person into commerce. There is simply no other legitimate reading of the quotes I supplied you.
Perhaps you’d like to go to the case itself and provide soem sort of evidence that the Court was making this distinction which you place such great emphasis on?
Only a small portion of what she quoted came from O’Connor. But yes, the Family Research Council is a hate group, at least according to the SPLC. I’m not sure I’d endorse that view; I think of hate groups as those which actively engage in hate crimes. The FRC is more of a hateful group.
The part I don’t get is why the FRC is getting involved in healthcare litigation.
It’s a meaningless difference. A farmer can no longer forgo purchasing grain than a human being can forgo consuming medical care (except in the most rare of cases). Consider: is the ruling any different if the legislative limit was not on just wheat but on any food at all?
Wickard is perfectly on point, IMO, because the decision to go without insurance in a system in which emergent care is required by law to be administered is economic activity, and as such falls under the Commerce Clause.
The correct way to limit government overreach in this area is through the legislative branch and the democratic process.
HCR is a secret plan to increase AIDS research and stop the homos suffering from God’s righteous wrath.
She bolded 77 similar words, of which 19 came from O’Connor. That’s a full one-quarter, 25%.
And the remainder appear, if not as exact quotes, in substance in many other decisions.
And it’s an unremarkable practice.
And in my view, it’s dishonest to simply brand them as a “hate group,” without some measure of detail explaining why that is. I suspect that many Americans would not agree with the designation. I’m equally certain that the conviction that they ARE a “hate group” arises from their views on same-sex marriage and same-sex adoption. While I don’t share those views, I cannot agree with the branding. And when using words like “hate group,” especially when they conform not to a broadly-understood term but to a narrower definition shared most by a small group that thinks as you do, it’s fair to explain that peculiar meaning rather than simply use it.
Bricker, will you please stop calling me dishonest? I’m really weary of it.
As to the fact that this is common practice, I concede. I just found it odd that the language was almost verbatim. And I also found it compelling that the decision rested so heavily on a fundamentalist Christian organization’s ideas. Makes me immediately think, “Activist Judge.”
Your mileage obviously varies. So be it.
Well, I think you are overreaching. Who cares what the court contemplated? Yes, the end result is that Filburn had to buy his wheat but that is a far cry from being told “you must buy wheat”. Now, if the court ruled that everyone in the country must buy wheat in order to prop up prices then you would be correct.
As much as many here want to twist Wickard into something more vile than it already is, the point remains that the federal government has never had the power to force an individual, especially one not already engaged in commerce, into buying a product from an private company.
Well, it was a dishonest representation of that group. If you don’t like being called on it, don’t do it. Easy. But I’m glad you posted what you did. It brought to light once again your rabid partisanship. The fact that the language you were so concerned about came from the Supremes, and O’Connor, is the cherry on top of the sundae.
The current Court. Anyone interested in a genuine legal discussion of Wickard.
I’m taking it you aren’t willing to go to the decision itself, then.
It’s an absolutely legitimate argument to say that the power was never there. However, as I have said, and as Comrade Bricker, hardly someone I would normally share common ground with on constitutional issues appears to have also said, to get that, the Court should be honest and overrule Wickard. What isn’t fair, IMHO, is to claim that you can keep Wickard and all that comes from it, which to be honest is a massive amount of current jurisprudence, and strike this law.
The bottom line is that as I have shown, the opinion in Wickard very clearly contemplates forcing people on threat of financial penalty to purchase an item. Your attempt to distinguish doesn’t seem to address the opinion itself, which tends to be a fatal flaw in legal arguments.
“Hate group” is always going to be a loaded term. It is always going to be partisan.
The quote was from the Supreme Court, and labeled as such in the hate group’s brief. The later language wasn’t a quote, and seems to have been lifted from that brief. I’m not bothered the District Court did it - because it isn’t like it lifted comments about homosexuality being evil, for example. I’m not sure if Shayna realized it is very common for a court to do this - it usually brings a smile to a lawyer’s face when they see something he or she has written coming out word for word in a judicial opinion. But I can quite understand the concern this would generate if someone wasn’t aware how often it happened.
No, it was an honest opinion I happen to hold. An opinion to which I’m entitled, and for which there is a proscription from calling me dishonest in this forum. And the only person that language served to show as a rabid partisan was the judge. Anything further you want to say about me, personally, take to the Pit.
As I’ve stated, it is not on point at all. In fact, it is the exact opposite.
Care to expand on that? The overreach has been by the legislative brance with the supreme court giving them the green light. In theory the supreme court should keep a check on the legislative branch by setting the limits of contitutionality. All branches of government seek to expand their own power…it’s just the nature of the beast. The question is how far we are willing to let it go.
You and others here seem to have no concern about the larger point here…there is no longer a limit on what the federal government can do. The democratic process works to an extent but it is much harder to root out the bureaucrats that actually craft policy.
I agree. And I don’t really blame for making that mistake. But her rabid partisanship gets old. The fact that she went back to her usual well and that her blindness caused her to wrap everything up in a tidy little oh-those-dastardly-republicans bow is, well, it’s enough to bring a smile to one’s face.
I, and others, disagree. It seems clear to me that unless you remove the requirement that hospitals must treat emergent conditions regardless of the ability to pay choosing to remain uninsured is very much economic activity.
Wickard said the man could be fined for growing crops for personal use. They acknowledged repeatedly that this would force him to buy it on the open market. They still ruled the law constitutional. I don’t see how much clearer it can be.
The limit of the federal government is the will of the people. There is a very clear way to get this law repealed - elect a few more GOP Senators and a GOP President and poof it’s gone. Hell, the mandate doesn’t even go into effect for 3 more years - plenty of time.
I don’t see very many limitations in the Commerce Clause, especially in light of previous jurisprudence. You may think that is a bad thing, and the Supreme Court might agree with you this time around. But I think it’s a stretch to claim you can keep all previous jurisprudence and strike down just this law on some distinction between economic activity and abstaining from economic activity - especially since in this particular case said abstention isn’t an abstention at all.
No, you are incorrect. What the court thought would be the result of their decision is beside the point. The court ruled that Filburn could be penalized for growing more than X amount of wheat. The end result, that Filburn would have to buy wheat if he wanted more, is a consequence of the decision…not the decison itself. Oh, and being a smart ass doesn’t make one smart.
I’ve read the decision on a number of occassions. Does that impress you? Now, would you like to respond to my point?
Again, Wickard does not force anyone to purchase anything. As I’ve stated, Filburn could have chosen to not purchase any wheat and suffer the consequences. In the current individual mandate case the government is forcing individuals not engaged in commerce with insurance companies into commerce. Big difference. Being involved in commerce with respect to the health care industry is a separate point…I don’t necessarily need insurance to pay for health care.
That is a problem created by government. I don’t think that the government can use a problem it created in order to justify solving that problem by forcing individuals into commerce.
Acknowledging that something may be the result of the decision is not the same and requiring someone to purchase a product under threat of law. I don’t see how much clearer that can be.
That may be exactly what they do. That small distinction would alllow the court to strike down the individual mandate without affecting previous decisions. Alternatively, they may just swing the door open a little more.
You have now posted three successive shots at Shayna without contributing anything relevant to actual discussion of the Court decision.
Take it to the Pit or drop it.
[ /Moderating ]