waiting [for Supreme Court decision on health care law]

[Bricker]

@onecut39

I am simply quoting the constitution, as written by the founders. If you find the language too vague or too all inclusive or anything else you disagree with you may change that wording by the process set forth by the founders.

AMENDMENT!

I find the language just fine. I find your idea that the language “provide for the general welfare” means, literally, that no subject is beyond Congress’ reach to be a wrong interpretation of the meaning of that language.

As does the Supreme Court. When Congress tried to create a federal cause of action for abused women, they presumably thought it furthered the general welfare. But the Supreme Court found that Congress did not have the power. How could this be, if your vision of the General Welfare Clause is correct?

When Congress sought to create a federal crime of possessing a firearm within 1,000 feet of a school, they presumably thought it furthered the general welfare. But the Supreme Court found that Congress did not have the power. How could this be, if your vision of the General Welfare Clause is correct?

It’s not an issue of the language – it’s the fact that the language does not mean unfettered Congressional reach.

[Little_Nemo]

I won’t get into another argument over the legalities. But I do think this is a political timebomb for the Republicans.

Despite what people like magellan imagine, most voters like government programs. They may occasionally bitch about the cost or about other people receiving some government aid. But overall, getting stuff from the government is popular. You’d think conservatives, of all people, would understand how greed and self-interest work.

What’s the theoretical Republican selling point? “Hey, you know those medical bills that cost you thousands of dollars every year? Well, those crazy Democrats were trying to have the government pay those bills. But don’t worry. The Republican Party was there for you and we stopped them. Your medical expenses are still your own. No need to thank us now. Just remember who your friends were in November.”

Yes, the reality is that people would be paying those bills anyway. The money to pay for government programs comes from taxes. But the benefits would be direct and obvious while the costs would be indirect and invisible. It’s like Social Security or Medicare.

And the Supreme Court striking it down would be the worst way to do it politically. Conservatives have spent several decades selling the idea that “activist judges” are a terrible thing. They can’t take that back now just because those activist judges are on their side. The shoe’s on the other foot now and it’s the left who can ride on the anti-judicial theme that the right created. Now it’s the Democrats who can complain about how five unelected judges can overrule the will of the people. Again, you’d think that the conservatives who spent all those years complaining about Warren and Brennan and Douglas and Marshall would have foreseen the possibility of those arguments being used against them.

[Damuri_Ajashi]

@onecut39

Article 1 section eight of the constitution the first sentence states that the congress is granted the power to “provide for the general welfare”. Not “promote” provide. The last sentence gives them power to enact all legislation “necessary” to carry out all the previous provisions.

Conservatives always overlook this just as they try (and have succeeded) in tearing apart the one sentence 2nd amendment to separate a “well regulated militia” from the statement allowing citizens to own guns.

Conservatives are good at this as are all who would read into the constitution that which they favor.

They may take words away but they don’t add words or create penumbra.

Both parties completely overlook that nowhere in the constitution does the Supreme court have the power to strike down laws. NOWHERE!

When SCOTUS overturns laws, they are not doing so on their own authority, they are doing so because the alw conflicts with higher law (usually the constitution) and the judiciary is endowed with the judicial powers which includes interpretation of the law.

@Bricker

Is there anything at all that Congress couldn’t do under this version of the general welfare clause? Can you name a single program they couldn’t enact?

You know, if you don’t like the constitution as written, there is a way to get it fixed. Or you can get a court that will find reasons to read out parts you don’t like and read in penumbra that you do.

[John_Mace]

@Damuri_Ajashi

You know, if you don’t like the constitution as written, there is a way to get it fixed. Or you can get a court that will find reasons to read out parts you don’t like and read in penumbra that you do.

Here’s a hint when reading the constitution: If your interpretation introduces a contradiction, you are reading it wrong. The constitution does not give Congress unlimited powers. If you read something that you think says it does, you are wrong. And you won’t find a single SCOTUS justice who thinks otherwise.

[2ManyTacos]

An overturn of the ACA, no matter how eloquently or concisely the decision is articulated, will never be interpreted as being anything other than an unabashedly biased political maneuver. The SCOTUS justices, in spite of all of their faults, have to be aware of that perception, and so their impending decision (IMO) will have to take that fact into consideration. Now, I’m not a legal scholar, but seriously, you can’t just disregard decades of precedent and months of conventional wisdom (that the law is constitutional), not to mention a majority of prior rulings (some delivered by a number of reputable conservative judges) in favor of the ACA’s constitutionality simply because the oral arguments were rough on the government’s position. FWIW, here’s my prediction:

I predict that the SCOTUS will rule 6-3 in favor of the ACA’s constitutionality, but their verdict will be worded along the lines of “yes, this law is constitutional, but no precedents can be derived from this decision.” Basically, they’ll pull together a ruling a la the outcome of Bush v. Gore, issuing their verdict in such a way so as to stop future politicians and lawyers from reading too much into the decision. Now, I could be wrong, but I just don’t think that Chief Justice John Roberts wants to go down as the guy who presided over the death of the long-sought-after US universal health care bill for purely political reasons.

That’s what I’m anticipating. Now for the negative, horror-story-worthy possibility:

I think that, even more than a complete overturn of the ACA, the absolute worst outcome would be for the justices to rule that both (a) the IM is unconstitutional and so the guaranteed issue and community rating provisions are severed, and (b) that the Medicaid expansion is unconstitutional as well. In that event, what we’ll essentially be left with is a worthless phantom law that’ll mandate the states to establish insurance exchanges and…that’s it. Now, maybe the government subsidies to buy insurance would help a little bit, but in that scenario virtually every issue that the ACA was designed to address will have been eliminated. The GOP will have a heyday championing the law as having been DOA, and it’ll be another twenty years before HC reform is tried again.

I’ve said it IRL, but seriously, I think that the only way to get a federal single-payer solution would have to be under the leadership of today’s 20-somethings. Basically, we just need to wait until this country is run by people who were born after the fucking Cold War and who consequently don’t have an irrational fear of socialism. The problem with that idea, though, is that we’re 30-40 years away from that happening, and a lot of people would suffer needlessly in the meantime.

[Saint_Cad]

@Little_Nemo

What’s the theoretical Republican selling point? “Hey, you know those medical bills that cost you thousands of dollars every year? Well, those crazy Democrats were trying to have the government pay those bills. But don’t worry. The Republican Party was there for you and we stopped them. Your medical expenses are still your own. No need to thank us now. Just remember who your friends were in November.”

I think you’re missing an important part of the Republican argument. The government is not paying the bills. I mean, are Obama and the Dems in Congress writing checks from their personal accounts to pay for UHC? Of course not.* The taxpayers are paying the bills and that is very different.
*It’s easy to be generous with other people’s money. I wonder if Democrats in Congress would favor all of these social programs if they actually had to pay for them themselves.

[Chronos]

It’s always going to be other peoples’ money that’s at stake. That’s how insurance companies work, too. The question isn’t whether it’s going to be other peoples’ money; it’s just how efficiently that money is going to be used. Make things more efficient, and you need less of other peoples’ money.

[Martin_Hyde]

@Chronos

Not only is it a Constitutionally-mandated duty of Congress, but it was implemented using one of the powers explicitly granted to Congress in the Constitution. Congress has the power to levy taxes, and so they did. To argue that “it works exactly the same way a tax would, but it’s unconstitutional because they didn’t actually say the word tax” is the same sort of magic-word thinking that leads crackpots to talk about the fringe on flags.

That’s a false analogy, the specifics of a tax can definitely impact whether it is constitutional Federally. There is a reason that we had to pass an amendment for direct income taxation, it was not seen as constitutional by default. Instead the Federal government levied various excise taxes to directly fund its operations.

It’s demonstrably false that the presence or absence of fringes on a flag can impact whether or not proceedings in a court containing said flag are valid legal proceedings. It’s not demonstrably false that Congress can tax people however they see fit without running into constitutional issues.

[Martin_Hyde]

@Little_Nemo

I won’t get into another argument over the legalities. But I do think this is a political timebomb for the Republicans.

Despite what people like magellan imagine, most voters like government programs. They may occasionally bitch about the cost or about other people receiving some government aid. But overall, getting stuff from the government is popular. You’d think conservatives, of all people, would understand how greed and self-interest work.

What’s the theoretical Republican selling point? “Hey, you know those medical bills that cost you thousands of dollars every year? Well, those crazy Democrats were trying to have the government pay those bills. But don’t worry. The Republican Party was there for you and we stopped them. Your medical expenses are still your own. No need to thank us now. Just remember who your friends were in November.”

Yes, the reality is that people would be paying those bills anyway. The money to pay for government programs comes from taxes. But the benefits would be direct and obvious while the costs would be indirect and invisible. It’s like Social Security or Medicare.

And the Supreme Court striking it down would be the worst way to do it politically. Conservatives have spent several decades selling the idea that “activist judges” are a terrible thing. They can’t take that back now just because those activist judges are on their side. The shoe’s on the other foot now and it’s the left who can ride on the anti-judicial theme that the right created. Now it’s the Democrats who can complain about how five unelected judges can overrule the will of the people. Again, you’d think that the conservatives who spent all those years complaining about Warren and Brennan and Douglas and Marshall would have foreseen the possibility of those arguments being used against them.

People like individual government programs when they benefit from them. People like sex too, people like food and people like drugs. However, too much of any of those things (including government programs) and things can get out of hand.

If you over indulge in food you become fat, if you over indulge in drugs you can suffer serious medical problems or have debilitating social problems, fortunately it’s hard to have “too much sex” but an obsession with sex can also lead to functional problems as well.

Yes, people like government programs. But the history of Europe which had far more government involvement in day to day life for the past 40 years has shown a trend to some scaling back of state socialism. It’s not because individual programs that have been cut didn’t have people who supported them, but because society as a whole realized the downsides of too much government.

Your point about activist judges is, quite simply, stupid. People don’t vote based on whether they think one side is being hypocritical or not. Most issues are so nuanced you can’t generally convince people of the sort of hypocrisy you’re talking about in any case. If a conservative believes X is unconstitutional but the SCOTUS says it is constitutional, then it’s perfectly reasonable to complain about “judicial activism.” If a conservative believes x is unconstitutional and the SCOTUS agrees–then the conservative has no reason to be concerned about judicial activism. Judicial activism as a “rallying cry” was born out of a feeling that the SCOTUS stopped trying to interpret the meaning of the Constitution as intended by the men who wrote it and instead started trying to find ways to make the Constitution match the personal desires of the justices ruling on it. (Note I said the judicial activism rallying cry grew out of a feeling, in truth the SCOTUS has always been about the individual whims of the justices to some degree or another.)

[foolsguinea]

@Bricker

Is there anything at all that Congress couldn’t do under this version of the general welfare clause? Can you name a single program they couldn’t enact?

Yep. So could you. Setting fire to the forests of western PA would contribute nothing positive to the general welfare.

@onecut39

I am simply quoting the constitution, as written by the founders. If you find the language too vague or too all inclusive or anything else you disagree with you may change that wording by the process set forth by the founders.

AMENDMENT!

Heh.

Well, conservatives, how about it? No more judicial activism trying to find an expansive Tenth Amendment, or claiming implicitly that the Tenth Amendment repealed the general welfare clause. How would you do passing an amendment saying that the welfare of the people is simply not a concern?

@Chronos

Not only is it a Constitutionally-mandated duty of Congress, but it was implemented using one of the powers explicitly granted to Congress in the Constitution. Congress has the power to levy taxes, and so they did. To argue that “it works exactly the same way a tax would, but it’s unconstitutional because they didn’t actually say the word tax” is the same sort of magic-word thinking that leads crackpots to talk about the fringe on flags.

I love this analysis.

@doorhinge

It’s been previously decided that the Federal government doesn’t have unlimited power to do anything it wants. The SC Justices asked the lawyers to address that issue at the hearing. The pro-Obamacare side failed to make a convincing argument for an imperial government (but that’s only my opinion).

So when do we dissociate state militias from DOD? Or abolish Social Security? I think imperial government is pretty well established, d’Orange.

@BobLibDem

I don’t have any faith that this Court will decide on its merits. There are four automatic Republican votes for virtually every case.

See, this I don’t believe. Nino Scalia has (or used to have) a judicial philosophy, and from what I can tell it more or less amounts to, “A democracy can vote for stuff if it’s what the people want.” I don’t think he’d strike this down, because an argument striking this down would prove too much; it would jeopardize the ability of the people to govern themselves effectively. The other guys, I don’t know, they may not care; but I don’t really expect Scalia to strike this down, especially not in a “tank the whole bill” kind of way.

[foolsguinea]

@John_Mace

Here’s a hint when reading the constitution: If your interpretation introduces a contradiction, you are reading it wrong. The constitution does not give Congress unlimited powers. If you read something that you think says it does, you are wrong. And you won’t find a single SCOTUS justice who thinks otherwise.

Really? Why do you think that? And which of us is claiming a “contradiction”? One clause may supersede another, yes. The question is which is primary.

@Little_Nemo

And the Supreme Court striking it down would be the worst way to do it politically. Conservatives have spent several decades selling the idea that “activist judges” are a terrible thing. They can’t take that back now just because those activist judges are on their side. The shoe’s on the other foot now and it’s the left who can ride on the anti-judicial theme that the right created. Now it’s the Democrats who can complain about how five unelected judges can overrule the will of the people. Again, you’d think that the conservatives who spent all those years complaining about Warren and Brennan and Douglas and Marshall would have foreseen the possibility of those arguments being used against them.

Funnily enough, before FDR, judicial activism was well-established and strongly right-wing for a half-century. They were firmly pro-capital, anti-regulatory, & anti-union; they concocted “freedom of contract,” and legislated from the bench on the intersection of corporate personhood and the 14th Amendment. Right-wing judicial activism (some of it very nastily classist) was a constant for a long time.

@2ManyTacos

I think that, even more than a complete overturn of the ACA, the absolute worst outcome would be for the justices to rule that both (a) the IM is unconstitutional and so the guaranteed issue and community rating provisions are severed, and (b) that the Medicaid expansion is unconstitutional as well.

How on earth could a Medicaid expansion be unconstitutional?

Wait, is it like when government is like having sex on drugs? 'Cos Martin Hyde was talking about that:

@Martin_Hyde

Yes, people like government programs. But the history of Europe which had far more government involvement in day to day life for the past 40 years has shown a trend to some scaling back of state socialism. It’s not because individual programs that have been cut didn’t have people who supported them, but because society as a whole realized the downsides of too much government.

This is less useful as an analysis of European politics than Yahoo Serious’s Young Einstein is as a biography of Albert Einstein. It’s about as useful as an analysis of European politics as Yahoo Serious’s Young Einstein is as a biography of Albert Brooks. It’s nice to see that you talk about the motivations of European pols with no familiarity with life in Europe, the pols, or the legislative changes made.

[Bricker]

@2ManyTacos

An overturn of the ACA, no matter how eloquently or concisely the decision is articulated, will never be interpreted as being anything other than an unabashedly biased political maneuver. The SCOTUS justices, in spite of all of their faults, have to be aware of that perception, and so their impending decision (IMO) will have to take that fact into consideration. Now, I’m not a legal scholar, but seriously, you can’t just disregard decades of precedent and months of conventional wisdom (that the law is constitutional), not to mention a majority of prior rulings (some delivered by a number of reputable conservative judges) in favor of the ACA’s constitutionality simply because the oral arguments were rough on the government’s position.

Excuse me, but there have not been “months of conventional wisdom.” I believed that the law was constitutional from the beginning, yes, but was also aware of many voices from the beginning that were questioning the issue. And even my support is borne of precedent, but with the caveat that I believed Wickard was wrongly decided.

[Wesley_Clark]

@Little_Nemo

I won’t get into another argument over the legalities. But I do think this is a political timebomb for the Republicans.

Despite what people like magellan imagine, most voters like government programs. They may occasionally bitch about the cost or about other people receiving some government aid. But overall, getting stuff from the government is popular. You’d think conservatives, of all people, would understand how greed and self-interest work.

What’s the theoretical Republican selling point? “Hey, you know those medical bills that cost you thousands of dollars every year? Well, those crazy Democrats were trying to have the government pay those bills. But don’t worry. The Republican Party was there for you and we stopped them. Your medical expenses are still your own. No need to thank us now. Just remember who your friends were in November.”

Yes, the reality is that people would be paying those bills anyway. The money to pay for government programs comes from taxes. But the benefits would be direct and obvious while the costs would be indirect and invisible. It’s like Social Security or Medicare.

And the Supreme Court striking it down would be the worst way to do it politically. Conservatives have spent several decades selling the idea that “activist judges” are a terrible thing. They can’t take that back now just because those activist judges are on their side. The shoe’s on the other foot now and it’s the left who can ride on the anti-judicial theme that the right created. Now it’s the Democrats who can complain about how five unelected judges can overrule the will of the people. Again, you’d think that the conservatives who spent all those years complaining about Warren and Brennan and Douglas and Marshall would have foreseen the possibility of those arguments being used against them.

Railing about how it cut $500 billion from medicare over the next decade was a major talking point of the GOP in 2010. Even the tea party loves medicare and SS.

http://www.healthcare-now.org/wsjnbc-poll-hands-off-medicare-social-security

The problem with Obamacare is it never got off the ground. It would take years after it was enacted for people to truly see its benefits. If Clinton had passed health reform in 1993 then by 2012 even the tea party would probably support it because it would be ingrained into society and the benefits of it would be obvious. But most of the provisions in the ACA don’t kick in until 2014, and after that it takes years and years to seep into public consciousness about the benefits.

Fixing the donut hole could’ve helped people, but they never saw the benefit. Ending rescissions could help people but most won’t see it (assuming the law is overturned). Not losing health insurance and having to pay $900 a month if you lose your job for COBRA is something people won’t see. Efforts at cost control could save trillions. It is a good law, but it’ll be 2020 before people really see the benefits. Right now it is just a partisan theoretical issue.

As far as activist judges, I don’t think the right cares. Their talking points are divorced from reality anyway. How else could a movement that has talk radio, fox news and several books on the best seller lists talk about how the media is oppressing them. They will still rail against activist judges even with a 5th conservative justice. that is one thing I really admire about the leaders of the GOP. They have to know how full of shit they are, but they know most people don’t pay enough attention to care. Its laudable in a way.

Ah well. Maybe I can get enough points to move to Canada. I’m sure they’ll take me.

[gamerunknown]

@Really Not All That Bright

Today’s episode of Constitution Street was brought to you by the letter F and P, and the number 14

How relevant is the size of the US given that I can contact a senator of my choice within minutes?

@Martin Hyde

society as a whole realized the downsides of too much government

I’d like to see a cite showing society supporting the dismantling of a public program in Europe. Especially one showing widespread support for the privatisation of healthcare.

This may interest you.

@Saint Cad

I wonder if Democrats in Congress would favor all of these social programs if they actually had to pay for them themselves.

They pay taxes, don’t they? This is about as useful as saying “I wonder if Republicans would cut welfare if they were a single mother living in a tenement in an area of high unemployment”.

[2ManyTacos]

@Bricker

Excuse me, but there have not been “months of conventional wisdom.” I believed that the law was constitutional from the beginning, yes, but was also aware of many voices from the beginning that were questioning the issue. And even my support is borne of precedent, but with the caveat that I believed Wickard was wrongly decided.

The problem with that is that the IM was barely even questioned while the bill was being debated; the GOP was too entrenched in its battle against the public option to even care about the individual mandate. The kicker is that the Pubs still demonized the bill even after the public option was jettisoned, only turning their attention to the IM after the fucking thing was already passed.

The entire run-up to this - from the GOP obstructionism during the actual debate about the bill, to all the fucking lawsuits they’ve filed since the ACA passed, and now at the Supreme Court - just reeks of the Republicans trying to kill a bill judicially that they failed to kill legislatively. Given the history surrounding the entire issue (that the entire fucking law is based on GOP ideas and that the Pubs have historically criticized judicial activism), I’m in awe at the level of hypocrisy at play here.

[Saint_Cad]

@gamerunknown

They pay taxes, don’t they? This is about as useful as saying “I wonder if Republicans would cut welfare if they were a single mother living in a tenement in an area of high unemployment”.

You miss the point. Congress doesn’t pay for social programs and Democrats should not be getting credit for paying for social programs. It is like me claiming that I’m being generous when I make everyone in my city give me $10 and then I donate to a local school and then I should get credit for giving $100,000 to local schools and put myself as the big supporter of local education.

[Little_Nemo]

@Saint_Cad

I think you’re missing an important part of the Republican argument. The government is not paying the bills. I mean, are Obama and the Dems in Congress writing checks from their personal accounts to pay for UHC? Of course not.* The taxpayers are paying the bills and that is very different.

Boy, is my face red. I’m so embarrassed I didn’t know this. If only I had said something like “Yes, the reality is that people would be paying those bills anyway. The money to pay for government programs comes from taxes.”

[John_Mace]

@foolsguinea

Really? Why do you think that?

Because I have seen many instances where SCOTUS justices declared it to be true, and I have never seen one declare it not to be true. If I missed some declarations of the latter view, please enlighten me. The 10th amendment (which, having been ratified later, takes precedence over anything in the text which was ratified earlier) has been called a “truism”, adding nothing to the text of the constitution. That is, it is already in there.

One clause may supersede another, yes. The question is which is primary.

If you want to go that route, then the 10th Amendment is primary, and supersedes anything in the text. So, if your interpretation results in a situation where the federal government has unlimited powers, then you need to go back and check your premises.

[Little_Nemo]

@foolsguinea

Funnily enough, before FDR, judicial activism was well-established and strongly right-wing for a half-century. They were firmly pro-capital, anti-regulatory, & anti-union; they concocted “freedom of contract,” and legislated from the bench on the intersection of corporate personhood and the 14th Amendment. Right-wing judicial activism (some of it very nastily classist) was a constant for a long time.

I’d disagree. The pre-FDR court system wasn’t really activist. It was more anti-activist. It just wasn’t noticeable because Congress generally wasn’t very activist either. So the court never had to overturn laws that weren’t being enacted.

When Congress did start trying to change some things the Court did act as an anchor. But they weren’t really being “activist” - they were trying to preserve the existing status quo.

I agree with the conservatives on this point. The Warren court really was activist - they were making not preventing change. Decisions like Brown, Green, Roe, Griswold, Engel, Miranda, Gideon, Furman, Mapp, Roth, Baker, Reynolds, Dombrowski set broad new policies. They certainly did not defend the status quo.

[Bricker]

@Little_Nemo

I’d disagree. The pre-FDR court system wasn’t really activist. It was more anti-activist.

Lochner?