The Cognitive Dissonance of North Dakota (yet another health care thread)

[elucidator]

As one “researcher” put it? Nice spin, Smashy, you have a future in the Pubbie party.

[Whack-a-Mole]

@Mr_Smashy

The preamble of the Constitution does not confer any rights on the Federal government; it merely states the purpose of the Constitution.

The SCOTUS would seem to disagree:

Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,[13] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court’s equally narrow interpretation of the Commerce Clause.

This narrow view was later overturned in United States v. Butler. There, the Court agreed with Justice Story’s construction, holding the power to tax and spend is an independent power; that is, the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare. The Court wrote:

“ [T]he [General Welfare] clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. … But the adoption of the broader construction leaves the power to spend subject to limitations. … [T]he powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare. ”

The tax imposed in Butler was nevertheless held unconstitutional as a violation of the Tenth Amendment reservation of power to the states.

Shortly after Butler, in Helvering v. Davis,[22] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.[15]

To date, the Hamiltonian view of the General Welfare Clause predominates in case law.

SOURCE: Taxing and Spending Clause - Wikipedia

So, it would seem the courts have indeed applied the General Welfare clause in constitutional matters making it not just a bit of flowery rhetoric but rather an actual part of the law of the land.

[Bricker]

(covered in subsequent post)

[Bricker]

@Whack-a-Mole

The SCOTUS would seem to disagree:

So, it would seem the courts have indeed applied the General Welfare clause in constitutional matters making it not just a bit of flowery rhetoric but rather an actual part of the law of the land.

sigh

You’re right and Mr Smashy is wrong about the location and effect of the general welfare clause. He thought you were referring to the preamble, but your were referring to Art I, Sec 8.

But you’re wrong about the reach of the clause.

[Whack-a-Mole]

@Mr_Smashy

It talks in circles about how great universal coverage is, then says that it’s ‘settled’ that it’s constitutional.

Well…none of this is settled because there is no case (that I am aware of) which is an analogue to what we are discussing. Insofar as that is the case no side can say it is “settled” one way or the other.

What they can do is look to how the courts have acted in the past on issues that bear on the same parts of the constitution as well as the inclinations of the justices. When these things are looked at it would seem to support the notion that the courts historically have sided with congress in these matters. For them to reverse at this point would upend decades of precedent (and the courts dig precedent).

[Bricker]

@Mr_Smashy

I didn’t mean it as ad hominem when I called their motives into question - but it’s important to know which side of the fence an analysis comes from, I’m sure you agree.

You would think, then, that my analysis would be accorded great deference on this one, yes?

[Whack-a-Mole]

@Bricker

But you’re wrong about the reach of the clause.

Granted my cite is from a Wiki article but there are cites in there to several cases and it would seem the courts have granted more expansive rather than more restrictive powers to congress on this.

Is the article in error making that assertion?

[Bricker]

@Whack-a-Mole

Granted my cite is from a Wiki article but there are cites in there to several cases and it would seem the courts have granted more expansive rather than more restrictive powers to congress on this.

Is the article in error making that assertion?

The courts have been expansive with Congress’ indirect powers to coerce for the general welfare, yes, the classic case being withholding highway funds to force states to comply with speed limits and drinking ages. But there’s a run of cases, starting with Steward Machine Co. v. Davis, that contain language limiting Congress’s direct use of the general welfare to "subject matter to activities fairly within the scope of national policy and power.’’ Buckley v. Valeo, Fullilove v. Klutznick, Pennhurst State School & Hospital v. Halderman.

[Maus_Magill]

I think a more pragmatic answer is that the AG wants to run for Governor, and he figures that a lawsuit against HRC would fire up the base, and more easily secure his nomination.

[Whack-a-Mole]

@Bricker

But there’s a run of cases, starting with Steward Machine Co. v. Davis, that contain language limiting Congress’s direct use of the general welfare to "subject matter to activities fairly within the scope of national policy and power.’’

IANAL but it would seem to me health care can easily be “fairly within the scope of national policy and power.”

[Bricker]

@Whack-a-Mole

IANAL but it would seem to me health care can easily be “fairly within the scope of national policy and power.”

Maybe. But that’s a matter of first impression - so far as I can tell, no court has squarely held this. Yet.

[Really_Not_All_That_Bright]

Bricker, you’ve been remarkably even handed in this thread. Kudos.

Is it safe to assume that it’s the duty of the AG, if he believes the bill is unconstitutional, to inform the representatives charged with evaluating whether the bill should become law? Would it be too much to ask the AG to provide information showing he has performed that analysis and worked with the state’s federal congressional delegation to ensure the Constitution is upheld?

The Attorney General’s job is not to enforce the law according to the will of the people. It’s to enforce the law. The people, such as they are, accepted his reading of constitutional law when they elected him* as much as they accepted their Senators’ views on healthcare reform when they elected them.

You could debate ad infinitum whether this election or that election is the one we should be looking at when determining the will of the people.

@Jackmannii

Questionable, since a poll cited in the above link finds only a 39% approval rating for Obama in the state.

Informal polling is even less meaningful than elections in this case. Our system of government doesn’t allow for referenda (or at least doesn’t provide for them).

*assuming the ND AG is elected. If not, substitute the governor who appointed him.

ETA: I am a little curious about whether the unfunded portion of the mandate - ie., the part where the states have to pony up additional dough - will be upheld.

[Mr_Smashy]

[quote=“Whack-a-Mole, post:25, topic:533465”]

Well…none of this is settled because there is no case (that I am aware of) which is an analogue to what we are discussing. Insofar as that is the case no side can say it is “settled” one way or the other.

QUOTE]

I agree… that’s why I thought the Institute’s document isn’t serious… from page 6: "Thus, absent any special states’ rights concerns under the 10th Amendment (discussed below), ***it is clear and well-settled ***that Congress has the power to mandate the purchase of health insurance. " (bolding and ital mine)

What they can do is look to how the courts have acted in the past on issues that bear on the same parts of the constitution as well as the inclinations of the justices. When these things are looked at it would seem to support the notion that the courts historically have sided with congress in these matters. For them to reverse at this point would upend decades of precedent (and the courts dig precedent).[/

I agree with your first setence, and disagree with your second. Again, from US v Lopez, 1995:

To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local… This we are unwilling to do

This is as close as we get wrt using the Commerce Clause to justify extraconstitutional laws, and the Supremes struck it down. Despite the fact that nobody (seriously) would argue that it’s not a good idea to ban guns in schools, which was what the case was about.

[Fear_Itself]

@Mr_Smashy

The preamble of the Constitution does not confer any rights on the Federal government; it merely states the purpose of the Constitution.

The Preamble? What about Article 1, Section 8:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

[Mr_Smashy]

@Fear_Itself

The Preamble? What about Article 1, Section 8:

yeah, it was already pointed out earlier, I thought he referred to a different instance.

No matter, the other stuff still stands.

[Mr_Smashy]

@elucidator

As one “researcher” put it? Nice spin, Smashy, you have a future in the Pubbie party.

Shhh, adults talking here.

[Whack-a-Mole]

@Mr_Smashy

This is as close as we get wrt using the Commerce Clause to justify extraconstitutional laws, and the Supremes struck it down. Despite the fact that nobody (seriously) would argue that it’s not a good idea to ban guns in schools, which was what the case was about.

I agree using the Commerce Clause to restrict guns in schools is quite a contortion.

It is not a contortion to suggest congress has the power to tax.

[Bricker]

@Really_Not_All_That_Bright

Bricker, you’ve been remarkably even handed in this thread. Kudos.

I always am.

[Really_Not_All_That_Bright]

Only in the sense that you’re not an amputee.

[BlinkingDuck]

I grew up in Western ND. Spent the first 21 years of my life there.

The OP does not confuse me in the slightest. The state has different philosophies battling for control. I will also contend that ND is not as conservative as its reputation. Yes, many people are very conservative…but a large minority are not.

If the state plus South Dakota would have been divided as it SHOULD have been ( East and West Dakota), you would see much less paradox