I think it’s possible to keep Wickard if you decide to make a distinction between non-economic activity (growing wheat for personal consumption) and economic non-activity (not buying health insurance).
I think that is a stretch, since it is rather trivial to show that this “non-activity” is in fact activity as soon as you get in a car crash or have a heart attack at the mall.
But that is one way (I’m sure there are others) to invalidate the individual mandate while still keeping Wickard.
There is overlap between those who think Obama stole the election and/or was born in Kenya and has a fake ID and those who think the health care bill is unconstitutional. Not a complete overlap, but a good number of his critics just hate him and come up with the reasons later. The kinds of people who think he is the anti-christ, or is a Kenyan with a fake ID, or an avowed marxist, or someone who wants to take all the guns away aren’t forming opinions on the health care law based on a comprehension of legal precedent. The fact that I live in the rural part of a red state gives me a pretty pessimistic view of Obama’s critics. I’m sure there are tons of professional criticisms of the law, but I don’t get those where I live.
http://www.justice.gov/healthcare/
9 lawsuits dismissed, 6 found it constitutional. 3 found it unconstitutional. Of those 3, one was overturned in appeals court.
I’m not a lawyer, but it seems the strategy is to keep filing suit after suit until you can take it to the supreme court and hope Alito, Thomas, Scalia and Roberts (and one more justice) will overturn it.
That’s a bit unfair. Most of the litigants are discrete entities: the State of Florida, the US Citizens’ Association, the Thomas More Law Center, and so on.
I’ll take that as a no, you can’t show that the law suits were filed after any ruling that the bill was constitutional. And frankly, I have no interest in your theories that Republicans are against the HCRB because Obama is black or that he’s not really the legit president. That’s nonsense. The same folks worked their butts off to make sure Clinton’s HCRB was DOA, and they would have done the same if this bill had been passed under president Whitey McWhite (D).
I heard he was really born in Denmark.
Your link is out-of-date. For example, it says of Liberty University v. Geithner, a case that upheld the constitutionality of the Act, “An appeal is currently pending before the 4th Circuit Court of Appeals.”
In fact, the 4th Circuit, by published opinion, vacated and remanded that finding. (No. 10-234)
And if a lawsuit is dismissed for lack of standing, why do you infer (if you do) that this is somehow a negative judgement on the merits?
You say Wickard was non-economic activity, growing wheat for personal consumption. But the Court in Wickard found that Congress’ power was triggered by the fact that because of the wheat grown for personal consumption, Filburn would not have purchased wheat from anyone else, and THIS fact affected interstate commerce. So Filburn’s " non-economic activity" was in fact economic non-activity (not buying interstate wheat).
It’s a specious distinction.Almost anything can be construed as “non-” if you simply phrase it the right way.
I agree that it’s specious. But I’m not sure I can see any other way for Scalia to twist himself out of what he wrote in Raich. Do you?
I’m not sure where I say that. I was just pointing out how silly you were being. Torture indeed.
I happen to think that the individual mandate is constitutional and that single payer health care would be even moreso.
Yeah but you probably don’t think medicare is constitutional either. Good luck with that.
Honest, pleasant and well mannered are not the same thing as reasonable. IIRC John Mace is a tenth amendment sorta guy.
I can point to several conservative republican appointed judges that think HCRB is constitutional. Can you point to a single liberal Democrat appointed judge that thinks it is unconstitutional?
You think these lawsuits were brought in random jurisdictions that represent a cross section of the judiciiary or do you think there might have beena little bit of forum shopping? Even winning half your cases bodes ill for a concerted nationwide effort.
How great would they have to be? I mean aren’t the examples of cost savings presented by virtually every other industrialized country in the world evidence of great advantage?
OT but getting information is hardly irrelevant to waterboarding. You may not like torture but saying its not an attempt to get information is even more wrong than saying it doesn’t work.
Yeah and they talk to each other. They were cherrypicking favorable forums across the country and they still ended up with a pretty poor batting average.
Scalia can be very principled when he is writing a dissenting opinion. He gets a little more squirrelly when writing a decision or a concurring opinion.
Why does that matter? Republican appointed judges have the same authority as those appointed by Democrats.
I guess that means there are a number of Republican-appointed judges who can transcend their ideological biases and fairly consider an issue, but no Democratic appointed judge are able or willing to.
Or, that Democratic judges aren’t ideologically calling foul where there is none.
The fact that actual conservative judges find this constitutional, is better evidence that the right is trumping up outrage over nothing, than Democrats are defending something unconstitutional in lockstep.
Of course but I think the fact that you are only getting defections from one side should tell you something about the merits.
Or it says something about the merits. If you were a judge which way would you rule? I was under the impression that you would feel compelled to rule the individual mandate constitutional.
I have no doubt that if there was a bill outlawing third trimester abortions except in the cases outlined in Roe v Wade and it was challenged in cherrypicked fora across the country, you would see unanimity among the Republican judges supporting the law as well as some democratic judges supporting the law because the law would probably be constitutional.
I’m not saying that democratic judges are any less flawed than republican judges.
Actually, there’s a third option that’s even better: this is at least a somewhat close question.
And since Republicans tend to appoint judges with a particular judicial philosophy, as do Democrats, each set is likely being true to their principles in reaching a decision. A “living constitutionalist” will almost certainly agree that the Act is constitutional, because the words of the constitutional are of almost secondary important to the general intent and spirit. A textualist will find the Act more problematic, so the split comes down to how much weight to accord precedent.
Yes, I would, because I feel that Wickward controls.
So why wouldn’t I vote to overturn Wickward? I certainly feel it was wrongly decided at the time.
The answer is that above all, the legal system should offer stability and predictability of outcome. We have built a giant bulwark of decisional and regulatory law on the foundation of Wickard, and overturning it now would be for the legislators, not the courts. The courts should not choose to build more layers on the structure, to be sure, but this is not a new layer, but a straightforward application of the precise principle enunciated in Wickard.
As a senator, I’d vote against the bill; as the president, I’d veto it. But as a judge, I would find it constitutional, and the most I’d do is use my opinion to share how poor an idea I thought it was.
So Brown should not have been used to overturn Plessy based on all of the law based on “seperate but equal”?
Above all? Really? Of all the things the legal system should do, none is more important that stability and predictability?
No, there I would have flouted precedent.
The difference is that Plessy was a decision that was clearly and unambiguously wrong, in that it ignored the existence and history surrounding the Fourteenth Amendment.
Wickard was wrong, but not unambiguously so. Regulating interstate commerce does, in fact, allow you to regulate activities that affect interstate commerce – it’s all in where you draw the line.
Yes.
I hear you muttering, “What about justice?”
But in my view, justice is part and parcel of that guarantee of predictability and stability – that is, if two similarly situated parties are treated differently by the courts, then, almost by definition at least one has not received the most just outcome.
You need to adjust your hearing aid.
My take would be that it a system of laws and not men. Now, a consequence of that would be stability and predictability, but not the other way around.