As I wrote yesterday, I was utterly unsurprised by the ruling on ObamaCare (well, OK, I was a little pleasantly surprised at its scope in basically shutting down the entire enterprise). We had, after all, been telling these totalitarians for many months that what they proposed was clearly far beyond the reach of the Commerce Clause. But Jen Rubin notes that apparently the left had been paying no attention to us (“Are you serious? Are you serious?!“) and was very surprised, to the point that they are incoherent and have no actual arguments against it:
The ruling is. . . um. . . thinking of a case liberals hate. . . um. . . just like Bush v. Gore! (Except it has nothing to do with the Equal Protection Clause or any other aspect of that case.) It is, we are told, “curious,” “odd,” or “unconventional.”
These are complaints, not legal arguments. And they suggest that the left was totally unprepared for the constitutional attack on their beloved handiwork. After all, the recent mocking by the left of conservatives’ reverence for the Constitution suggests they are mystified that a 200-year old document could get in the way of their historic achievement. They are truly nonplussed, and so they vamp, not with reasoned analysis but with an outpouring of adjectives.
Once again, we see that the beliefs of the left are hot-house plants. They are nurtured in the protective cocoons of academia, the leftstream media and Manhattan and DC salons, where they are never challenged, and thus never develop proper defenses against the day that they must confront the real world. Non-leftists, on the other hand, must continually make their cases and hone their arguments, which makes the inevitable confrontation all the bloodier when they are ultimately exposed to harsh reality. And of course, some of the most exsanguinatory encounters occur on Fox News, because it’s the only place that puts them both in the same room.
[Update a while later]
The Constitutional moment: ObamaCare meets Madison and Marshall.
This crowd has needed a “constitutional moment” for about century.
I wish that the court would overturn Wickard, but that may have to await some new Justices from a Republican president who actually believes in originalism.
[Update a while later]
As for those on the left who are accusing Judge Vinson of “judicial activism,” they only demonstrate their ignorance of the meaning of that phrase. Simply put, “judicial activism” is the making of new law out of whole cloth via judicial ruling (Roe v Wade being almost a canonical example), not declaring a law unconstitutional.
The fundamental flaw in the progressive mindset is the idea that we can guarantee the on-going protection of any civil liberties with a government without strictly defined limits. The right is guilty of allowing government to escape its constitutional shackles, too, but they seem to understand that there must be some limits on government power.
A Commerce Clause that morphs into general police powers for the federal government will, eventually, be used by a tyrant to crush us completely. We see some of that tyranny today, of course. Progressives should fear that, but they seem to function in the belief that that power will only be theirs to wield. Crazy, but there you are.
To be fair, Pro, the very definition of “progressive” is someone who is optimistic, even verging on delusionally so, about his ability to predict and control the future. Ironically, that kind of attitude is a powerful force for achievement and happiness when restricted to decisions that affect only your own life. It only becomes malignant when you attach it to your urge to control the lives of others.
While it’s a fine post for a generic political blog and a rational argument, isn’t Rubin supposed to be writing a “conservatives in the mist” blog for the beltway crowd? Why is she taking the rhetorical position of explaining liberal/progressive responses to conservatives?
The “conservatives in the mist” feature is kind of hopeless, isn’t it? If you’re Dave Weigel, you don’t understand conservatives because you’re a condescending jackass; if you’re Jen Rubin, you understand conservatives but sometimes go from explaining your subject to your audience and instead fall into the trap of explaining your audience to your nominal subject.
While it’s a fine post for a generic political blog and a rational argument, isn’t Rubin supposed to be writing a “conservatives in the mist” blog for the beltway crowd?
I wasn’t aware that was her job. I think that her job is to simply expose to (shocked) WaPo readers what conservative bloggers blog about.
Yes. All that arm waving by the Tea Party about the country being broken, the need for revolution, etc., etc., and here we see that the safeguards of the Constitution are in place and working as intended by the Founding Fathers 🙂
“here we see that the safeguards of the Constitution are in place and working as intended by the Founding Fathers”; except the administration has decided to ignore the ruling and proceed as if it hadn’t happened.
Yes. All that arm waving by the Tea Party about the country being broken, the need for revolution, etc., etc., and here we see that the safeguards of the Constitution are in place and working as intended by the Founding Fathers
Care to provide some actual names of Tea Party people who advocated the need for a revolution?
As for the country being broken (as opposed to broke financially), the fact that the Obamacare monstrocity passed Congress and became law despite very widespread opposition suggests the political process is broken. The elections last November were a step in fixing the break.
except the administration has decided to ignore the ruling and proceed as if it hadn’t happened.
That means that the plaintiffs must now go back before the judge and ask him to find it in contempt of his ruling.
All that arm waving by the Tea Party about the country being broken, the need for revolution, etc., etc., and here we see that the safeguards of the Constitution are in place and working as intended by the Founding Fathers
Sure. And Obama signing the law keeping the tax rates unchanged had nothing to do with the Tea Party and his party’s severe rogering in November 2010. Nope. He would have done it anyway, ’cause it was just the right thing to do.
It’s quaint to think that governing officials — yes, even judges — pay no attention to the possibility of a furious mob hanging them to the nearest tree for being arrogant jackasses. Me, I’m a trifle more cynical.
[[[except the administration has decided to ignore the ruling and proceed as if it hadn’t happened.]]]
No, The Court simply did not issue an injection to stop while the Administration is appealing the ruling. That is legal and also part of the process.
Carl,
[[[It’s quaint to think that governing officials — yes, even judges — pay no attention to the possibility of a furious mob hanging them to the nearest tree for being arrogant jackasses.]]]
Yes, how silly they are to have faith in the American people and the American tradition of the rule of law, not rule by mobs nor kings…
I think the administration can get a stay on the ruling, pending appeal. Obviously, with different rulings in different circuits, this is going all the way up.
Sorry Mr. Matula.
“Noting that the judge did not order the government to stop implementing the law, a senior administration source said “implementation will proceed at pace.”
Stephanie Cutter, Deputy Senior Advisor to the president, issued a blog statement pushing back at the judge’s ruling that Congress cannot force individuals to buy health insurance. She said the Constitution authorizes Congress to regulate commerce. “
Yes, how silly they are to have faith in the American people and the American tradition of the rule of law, not rule by mobs nor kings…
Thomas, last I checked angry crowds of Tea Partiers were the American people. It’s another trope of the Modern Left to identify “The People” with judges or Congress or some other such Newspeak “War Is Peace” post-modernist rubbish.
I am celebrating the American people and the rule of law — in this case, the Constitution. Thinking that magistrates unaffected by the “mob,” as you put it, should make decisions for everybody is celebrating a rule by divine right of kings. You’ve reversed your left and right, and possibly your up and down. Isn’t that a little uncomfortable for your feet?
“Judicial activism” becomes just another way for the left to say “I don’t like it.”
Even if they do not, the 26 are free to stop implementing Obamacare — the law has been struck down and there is no need to follow it. Further, by doing so, the 26 will force the wheels of justice to turn more quickly in seeking final resolution.
Carl,
[[[Thomas, last I checked angry crowds of Tea Partiers were the American people. ]]]
There is a major difference between angry crowds and voters. You see angry crowds in Egypt at the moment. In the U.S. you see voters exercising their rights under the rule of law.
So if you said the Courts and Administration were responding to the will of the voters you would be accurate. By last I saw there were no mobs burning cars and fighting with police over this issue….
First, with two circuit courts ruling in favor of the ACA and two ruling against it, the idea that anything is settled is ridiculous.
Second, just a reminder – the same people that wrote the Commerce Clause passed socialized medicine and mandated health insurance in 1798.
Wow, way to completely miss the point of the post, Chris.
Not that it’s anything new for you.
Second, just a reminder – the same people that wrote the Commerce Clause passed socialized medicine and mandated health insurance in 1798.
Explanation.
As to why the court didn’t issue an injunction, the court decided that the law is unconstitutional and void, hence, an injunction was unnecessary.
Karl Hallowell – so socialized medicine IS constitutional? I was told here (repeatedly) that it’s not.
As one of the commenters on your thread asked, “what, exactly, is the constitutionally material distinction between requiring someone to purchase a product and requiring someone to purchase that same product from the government?”
Chris,
As a trivial note the “An Act for the Relief of Sick and Disabled Seamen” is why the Surgeon General stills wears a merchant marine uniform today for official functions.
Karl,
[[[As to why the court didn’t issue an injunction, the court decided that the law is unconstitutional and void, hence, an injunction was unnecessary.]]]
Nope, that is not correct. An injunction is used to stop action until ALL appeals have been exhausted but its only issued if the plaintiffs demonstrate significant harm would be done if the actions start/continue during the appeal process.
Since the provisions addressed have not started yet, and won’t for a while, this is clearly not the case. Yes, parts of the law may be still held to be unconstitutional when the appeal process is completed but until then the Court didn’t see any reason to prevent the plans for implementation from going forward.
Chris,
[[[As one of the commenters on your thread asked, “what, exactly, is the constitutionally material distinction between requiring someone to purchase a product and requiring someone to purchase that same product from the government?”]]]
Actually there is a key legal difference between the “An Act for the Relief of Sick and Disabled Seamen”. The Act required seamen to pay a tax, just as is currently the case for Social Security and Medicare.
The Health Care bill by contrast penalizes those who do not buy insurance. In this sense its much like the state laws that require automobile insurance, but with one key difference. You may, in theory, choose not to own and operate a motor vehicle, remember it is regarded as a privilege under legal theory and in exchange for being granted that privilege you are expected to carry insurance. But you have no such choice in terms of health insurance.
so socialized medicine IS constitutional? I was told here (repeatedly) that it’s not
Really? Can you quote any such statement? Should be easy, since it was made to you “repeatedly.”
Certainly people have said socialized medicine is stupid. But, sure, it’s constitutional. The Sixteenth Amendment puts no limitations on what government can do with the income tax money, so Congress could certainly set up Big Brother Shiny Happy Peepul Health Management Plan with it.
Um, what Karl said that you’re rebutting? Judge Vinson said it before Karl did. Himself.
Seems to me the judge is the expert on his own intent.
As one of the commenters on your thread asked, “what, exactly, is the constitutionally material distinction between requiring someone to purchase a product and requiring someone to purchase that same product from the government?”
You state the constitutionally material distinction. I need go no further. Thomas also had a good comment on that.
Nope, that is not correct. An injunction is used to stop action until ALL appeals have been exhausted but its only issued if the plaintiffs demonstrate significant harm would be done if the actions start/continue during the appeal process.
As McGehee notes, this is the judge’s ruling.
so socialized medicine IS constitutional? I was told here (repeatedly) that it’s not
Actually, there may well have been someone who told you repeatedly that socialized medicine is unconstitutional. So what? As Carl notes, it is stupid and harmful to society, even in forms that are constitutional.
Maybe I should add that there is one aspect of the usual implementation of socialized medicine the constitutionality of which is unclear: Congress can certainly set up a tax-funded universal healthcare plan. What is not clear, however, is whether they can forbid any competition with it, i.e. a private healthcare plan, or forbid people from making private deals with doctors, hospitals, et cetera outside of the plan. This is usually considered a necessary part of “socialized medicine,” e.g. in Canada, I venture to say with some trepidation, not being completely familiar with the plan, I thought I recall that it was illegal to transact healthcare business directly, patient to provider, outside of the national health care plan.
Whether Congress can do that is not at all clear. No doubt it would be rooted in the “Necessary And Proper” clause, but whether the Supreme Court would buy that is most unclear. After all, right now you can go outside Medicare, if you choose. There has been no attempt by Congress to force everyone to get all medical care through Medicare once you’re eligible.
you can go outside Medicare
Yes, however, you may still be forced to pay for Medicare even if you choose to go outside it.
The other difference in this ruling AGAINST the Health Care Plan and the two FOR (according to my lawyer acquaintance downtown) is the size and breadth of this judges brief.
It was 78 pages AND Vinson evidently tore this thing APART. (again, according to my lawyer acquaintance downtown) Hell he even quoted Obama on the fact that the government CANNOT mandate us to BUY anything, or they could (the judge quoted Obama’s own words from the campaign trail) cure homelessness by mandating that everyone must buy a house.
(I guess he was against it, before he was for it, thus reversing an old Democrat pattern of deliberate and deep thought)
I think the other thing Judge Vinson attacked was all the exemptions. He’s taking a, ” …and if it’s SO great and SO necessary for ALL Americans and ALL businesses and group entities, to
A: be covered and
B: to be taxed or fined
for this entire system to work, then HOW can so many exemptions be allowed or be possible?” Or so says the judge.
I’m with those who say some sort of government health care could be Constitutional. We have some federal health care NOW. It’s just not MANDATED that we ALL buy anything or get anything from them. And here’s my example of it having worked before at a federal level with damned few barking about it.
The polio vaccine program in the 1960’s.
Wow, should we believe Thomas Matula or a sitting federal judge? I’m going with Karl and McGehee.
Hmmm, I seemed to have bummed up on some type of spam filter so I will break this into two posts…
And exactly where are my posts in conflict with the federal judge? The final verdict will be with the Supreme Court. That is how the legal system works.
And, for the record, I do not support the Health Care Act. I feel its both a mistake and will not be efficient since it doesn’t leverage the power of the free market. In short its a poorly crafted sausage of a bill.
My solution would be simply to give everyone, starting at birth, a voucher for $3000 dollars to be used to buy their own insurance. If they wish to pay more for a better policy, fine. If not fine. If they choose not to use it at all, that is also fine, it will just go back into the treasury. Vouchers could be combined with those from other individuals, with anyone, friends, family, work, unions, social and religious organizations to get better group rates. And any of those groups could add to the amount of the vouchers for a better policy. Then I would just let the market work.
Those unable to get insurance would be put into a pool, just as is done with auto insurance in many states. This pool will decline over the years since those covered at birth will not have need of it since insurance firms would not be allowed to cancel policies because someone gets sick. They must then continue the same rate of coverage at the same rate. Yes, knowing this ahead of time means the insurance firms will incorporate it into their rate structures.
Since everyone gets the voucher federal health insurance would be replaced by it. The DOD, government agencies and CONGRESS would be allowed to consolidate the vouchers of their employees and service personal, if their employees and service personal individually elect to have them consolidated. And veterans would be allowed to joint his pool with their families as well, if they choose to do so. And yes, I would then phase out Medicare, those 50 and under would be paid under the new system until death and those 50 and over would not get vouchers once they enter the Medicare system.
The voucher would be indexed to the CPI to match inflation.
Part 2
I would pay for it by increasing in the rate for Medicare to 5% for those earning less than $45,000 income a year. 7.5% for those earning above $45,000 and another increase to 9% above $100,000. Alternatively you could just reset the Medicare tax at a flat rate of 7%. This would make it a wash at a income level of $42,850. At that level the Medicare tax would be $3,000, the same as the voucher.
And yes, I know employers pay half of the Medicare tax. But under this system they will not need to mess with health insurance, unless they CHOOSE to consolidate the vouchers of their employees and dependents as a benefit to attract employees.
Of course all these numbers are open to adjustment, this is just a back of the envelope calculation. But you could just write this bill on 1 sheet of paper. Well, its Washington, it will probably need 2 sheets 🙂
But the great advantage of this system it that it lets the power of the market loose as private health insurance firms compete for the vouchers individuals are receiving, each trying to provide a better policy 🙂
Yes, you would need a regulator to prevent possible fraud, but you have many models for auto and home insurance at the state level to use as a model.
And it is Constitutional, the government is already collecting the Medicare tax and nothing prevents it from sending vouchers to individuals to use voluntary to buy health insurance. Note, health insurance is not Mandated. If you don’t want to use the voucher you could just toss it in the garbage and take care of your own health needs, so it also preserves individual choice and freedom.
Not bad, Thomas. I’d vote for it. I’m a little unclear on why government should pay for health insurance for the average person at all — we don’t expect it to pay for food and shelter. There is also a certain amount of Magritte weirdness in collecting an average of $3000 from everyone in order to turn it around and pay everyone $3000. A naif could be forgiven for wondering whether it might not be simpler to leave the money were it is in the first place.
But at least it’s not some hideous Ponzi scheme or God-damned centralized meddling in absolutely everything.
Skeuomorphism.