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Is Obamacare Constitutional?

Independence Institute Senior Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post. (Which is cross-posted on the blog of Ind. Inst. President Jon Caldara.)

Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is "obviously not"), and instead points to four problems under modern constitutional doctrine:

1. It is not based on any enumerated power of Congress, not even on a very expansive reading of the power to regulate interstate commerce.

2. It relies on Excessive Delegation of the type held unconstitutional in Schechter Poultry.

3. It violates Substantive Due Process, and interferes with doctor-patient medical decisions to a vastly greater extent than did the laws declared unconstitutional in Roe v. Wade.

4. It violates the Tenth Amendment by commandeering state governments.

A couple caveats: It's a blog post, not a law review article, so it just sketches out the above points briefly. It's obviously written in the spirit of starting a public dialogue conversation. In the spirit of constructive dialogue, we promise not to say that we "don't want the folks who created the mess to do a lot of talking." (By "created the mess," I mean the people who created the legislation with little apparent consideration for constitutionality, and who appear to have operated from the presumption that Congress can exercise powers which are not enumerated.)

Also, when Rob writes something on a blog, he is not setting out an official Independence Institute position, nor does he purport to do so. (The same goes for what I write on VC.) And while Rob and I agree on many constitutional issues, we do not necessarily agree on all of them; for example, he does not believe that the 14th Amendment, properly interpreted, protects unenumerated rights, whereas I do.

I hope to have the chance to interview Rob on an iVoices.org podcast in the near future, and will certainly study the Comments to look for serious, challenging questions to ask.

AF:
Does Natelson believe that Medicare, Medicaid, and ERISA are unconstitutional under "modern constitutional doctrine," or does he believe that health care reform has constitutional problems not found in those statutes? If so, what?
8.17.2009 6:56pm
/:
whether it is constitutional under Originalism (for which the answer is "obviously not")

Never let a good crisis go to waste.
8.17.2009 6:58pm
OrinKerr:
What AF said.
8.17.2009 7:08pm
A Law Dawg:
While we're at it, can somebody explain the constitutional authority for mandated coverage?
8.17.2009 7:16pm
JK:
0.1. To be clear we’re talking about HR 3200, right? Natelson doesn't make it entirely clear whether he considers HR 3200 to be “ObamaCare” or whether he simply sees it as probative on the issue of what ObamaCare is because Obama “favors” it.

1. For a Commerce Clause argument to be taken seriously in this case I think you have to be able to argue that there is some reason why this HR 3200 is not legitimate under the commerce clause in a way that all other (major) federal legislation is legitimate. Otherwise we’re talking about a more general commerce clause argument. For the record I think there’s a lot of merit to the anti-modern-commerce-clause position, but I don’t think it’s helpful to bring it up in regard to particular bills like this, it’s more appropriate as a separate conversation. So how do we separate Health Care from every other (major) federal program that is ostensibly legitimate under the commerce clause?

2. I’m no expert on this area, but is a 1935 case on delegation *really* good law? I assume it wouldn’t have been cited if it was expressly overruled, but like the Commerce Clause argument this seems like more of an argument against the constitutionality of the administrative “branch” rather than a specific argument about the constitutionality of HR 3200. How is this delegation more extreme than other administrative programs?

3.1 Is Medicare Unconstitutional?

3.2 As long as people are allowed to privately contract for whatever medical service that they want (with their own money), how is it possible that there is an unconstitutional barrier between the patient and the doctor? In Roe a procedure was banned, HR 3200 doesn’t ban any procedures AFAIK.

3.3 If there is a substantive due process problem it seems more likely to be a restriction on how individuals are allowed to contract with their insurance companies (ie. Why can’t I make a contract to provide health care with an exception of pre-existing conditions?). This seems like basically the Lochner problem though, which is of course where almost all substantive due process arguments end up.

3.4 What if we stipulate that Roe was a bad decision (at least how it was decided) and shouldn’t be followed in other areas, do you still think there is a substantive due process problem?

4. Again how does this specifically violate the 10th amendment in a unique manner?
8.17.2009 7:21pm
PersonFromPorlock:
'Modern constitutional doctrine' is that the federal government can do anything it wants to that's not specifically prohibited. Really.
8.17.2009 7:23pm
BGates:
I think there’s a lot of merit to the anti-modern-commerce-clause position, but I don’t think it’s helpful to bring it up in regard to particular bills like this

That's been the position of Congress for decades: in general, we need to beware of illegitimate expansions of Congressional power under the commerce clause; fortunately, there's no bill in particular that constitutes such an expansion.

is a 1935 case on delegation *really* good law?

That's why I read this blog. IANAL, so I didn't even know Supreme Court decisions had expiration dates.
8.17.2009 7:27pm
RPT (mail):
What is the "Obamacare" being analyzed? Is there some legislation already in place or is this just an attack on cherry-picked items from different bills selected to make the point?
8.17.2009 7:28pm
A Law Dawg:
That's why I read this blog. IANAL, so I didn't even know Supreme Court decisions had expiration dates.


Yeah, Brown v. Board is probably going to clock out soon, and Marbury is just toast.
8.17.2009 7:29pm
KeithK (mail):

While we're at it, can somebody explain the constitutional authority for mandated coverage?


That's my biggest constitutional beef. You can maybe argue that the feds can spend the Treasury anyway they want to create national health care, but forcing me to buy some sort of insurance is not part of any power I can find in the document.
8.17.2009 7:32pm
runape (mail):

2. I’m no expert on this area, but is a 1935 case on delegation *really* good law? I assume it wouldn’t have been cited if it was expressly overruled, but like the Commerce Clause argument this seems like more of an argument against the constitutionality of the administrative “branch” rather than a specific argument about the constitutionality of HR 3200. How is this delegation more extreme than other administrative programs?


He cites Schechter Poultry because it is the last case in which the Court struck anything down on delegation grounds (and, together with a case called Panama Refining, continues to be the benchmark against which delegation challenges are measured).
8.17.2009 7:37pm
Mark N. (www):

That's why I read this blog. IANAL, so I didn't even know Supreme Court decisions had expiration dates.

If they rely on or announce doctrines that have been greatly undermined by subsequent jurisprudence, and have been rarely or never confirmed in the intervening years by being cited as precedent or mentioned favorably, they're often little better than dead: you can expect them to be overruled when a case presents itself that makes it necessary to do so. For example, a lot of the late-19th-century 2nd-amendment jurisprudence, like Presser, falls into that category.
8.17.2009 7:40pm
gattsuru (mail) (www):
That's my biggest constitutional beef. You can maybe argue that the feds can spend the Treasury anyway they want to create national health care, but forcing me to buy some sort of insurance is not part of any power I can find in the document.

At least as applied in the house bill, the mandate is applied through the taxation powers under the Sixteenth amendment, which have generally been read to allow nearly any sort of tax for nearly any sort of reason, except where an enumerated right is explicitly violated.
8.17.2009 7:42pm
einhverfr (mail) (www):
I too wonder about Medicare and the substantive due process argument, but I agree that there are some troubling elements of the H. B. 3200. What is missing in the blog post is a substantive linking of the parts to the concerns.

1) Is the individual insurance mandate Constitutional?
2) Is the HB 3200 ban on off-exchange insurance sales Constitutional (the Senate bill does not have this problem btw)?
3) Is the witholding of ALL state funds for medical programs from noncooperating states Constitutional?

There are a few others too. However the blog post reads more like propaganda than like a real conversation-starter.
8.17.2009 7:58pm
einhverfr (mail) (www):
Mark N:

For example, a lot of the late-19th-century 2nd-amendment jurisprudence, like Presser, falls into that category.


Yeah, but Presser was lame from the get-go. The court says that states may not seek to eliminate gun ownership because that erodes fundamental Federal constitutional interests in the militia. So courts read Presser as specifically allowing this sort of thing..... Same with Miller.
8.17.2009 8:01pm
ohwilleke:
Piffle. None of these grounds are serious constitutional challenges to the proposals. They are only slightly less cranky than tax protester arguments.

The interstate commerce power includes the power to extensively regulate the production of agricultural crops for personal consumption; this bill regulates a $2.5 trillion dollar industry that involves vast amounts of interstate commerce.

Also, the spending power includes the power to spend for the "general welfare." Social Security, Medicare, Medicaid, FUTA, the Veteran's Administration, the Black Lung program, ERISA, HIPAA, the Emergency Medical Treatment and Active Labor Act, numerous tax breaks and many more programs that have been upheld as constitutional.

These programs regulate health care to a great degree already, including almost all doctor-patient medical decisions of almost everybody aged 65 and older (a single payer program called Medicare), and requires that emergency rooms treat patients who admittedly cannot pay without compensation for their services. They regulate who can see which medical records, what benefit plans state can regulate, and how employers can provide benefits to employees in the private marketplace.

The amount of delegation permitted is modest compared to the SEC, NLRB or CFTC, all of which have been upheld, and differs little from Medicare Part D or Medicaid regulations in scope.

Rob Natelson's commandeering argument immediately argues against itself by providing an example of drinking age funding limitations that has been upheld as constitutional. He argues that a more extreme quid-pro-quo for limitation could be unconstitutional, but can't cite a single example to support his argument. Commandeering refers to a law that would order a state to enact certain legislation, period, not to a law that would cause a legislature to forfeit health related funds if it doesn't enact a health related program. Indeed, Medicaid's fund forfeiture rules are very similar to the ones being considered by Congress.
8.17.2009 8:10pm
Oren:

While we're at it, can somebody explain the constitutional authority for mandated coverage?

In MA, it was a tax penalty for failure to have coverage, which would presumably be constitutional under the 16A.
8.17.2009 8:10pm
http://volokh.com/?exclude=davidb :

It's obviously written in the spirit of starting a public dialogue.

I think you mean a "conversation."
8.17.2009 8:13pm
Nunzio:
Medicare and Medicaid are constitutional under the to provide for the general welfare of the United States clause (or the tax and spend clause).

Combined with the necessary and proper clause, regulation of private health insurance (what it must cover and can't exclude) is constitutional under the commerce clause and maybe the spending clause as well (given that Medicare is a huge part of health care expenditures, in order to make Medicare work you must regulate private insurance as well).

Taxing people who don't buy health insurance is constitutional under the taxing clause.
8.17.2009 8:13pm
Oren:
I obviously meant the Federal equivalent of the MA tax penalty for failure to get coverage would be constitutional under the 16A. The States, of course, can tax you for almost anything (modulu the results of EV's "gun tax" gedanken experiment).
8.17.2009 8:14pm
BGates:
the spending power includes the power to spend for the "general welfare."

How much legislation in the history of legislatures has not been defended by the assertion that it will serve the "general welfare"?
8.17.2009 8:15pm
einhverfr (mail) (www):
Ohwellke:

What do you make of this (from South Dakota v. Dole)?

Our decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which "pressure turns into compulsion." Here, however, Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved. We cannot conclude, however, that a conditional grant of federal money of this sort is unconstitutional simply by reason of its success in achieving the congressional objective.


Or are you saying that we should consider witholding 100% of federal highway funds if states don't cooperate with drinking age laws to be Constitutional?
8.17.2009 8:19pm
tvk:
There are perfectly good constitutional arguments against the legislation, and I agree that it would be "obviously" unconstitutional under a strict originalism reading of the commerce clause. But at the same time, it is so obviously constitutional given the New Deal revolution that this piece is being a little disingenuous. You cannot argue for what is a fairly strict originalist version of Commerce Clause power, long since dead-letter, and pretend you are analyzing under modern doctrine. Ditto with non-delegation.
8.17.2009 8:22pm
Oren:

How much legislation in the history of legislatures has not been defended by the assertion that it will serve the "general welfare"?

It is generally assumed that the legislature is the only body rightfully entrusted to determine what constitutes GW.

Some folks get exercised when they claim that a court has taken into its hands a judgment properly reserved for the legislature (e.g. Lawrence) but they are surprisingly quiet here. Conversely, the folks that were up in arms about what the TX legislature doesn't get to determine seem fine with Congress' (putatively forthcoming) determination that comprehensive health care reform is in the General Welfare.

In truth, I don't see any rhyme or reason to it at all.
8.17.2009 8:23pm
Brett Bellmore:

'Modern constitutional doctrine' is that the federal government can do anything it wants to that's not specifically prohibited. Really.


If only that were modern constitutional doctrine, which frequently allows the federal government to do things which ARE specifically prohibited, so long as they claim they've got a reason for doing so.

Otherwise "no law" really would mean "no law".
8.17.2009 8:23pm
Oren:

Otherwise "no law" really would mean "no law".

Nobody claims that "no law" means "some law", it's the antecedent phrases that are the subject of interpretation.

Of course, things not covered by the antecedent phrase may quite properly be legislated upon, which seems to be where you confusion lies.
8.17.2009 8:29pm
swg:
What about a takings claim? Isn't there some kind of mandate, or at least an additional tax if you don't buy health insurance? There's nothing like such a mandate or penalty now, is there? (E.g. you don't need to buy a car or a house in a flood zone so mandatory car insurance or flood insurance aren't the same.)

Also, under current Commerce Clause jurisprudence a comprehensive health care law seems pretty clearly constitutional to me - no doubt the health insurance industry, even intrastate, has a significant effect on interstate commerce (20% of GDP?).
8.17.2009 8:34pm
Real Man (mail):

You can maybe argue that the feds can spend the Treasury anyway they want to create national health care, but forcing me to buy some sort of insurance is not part of any power I can find in the document.



Bankruptcy Clause.
8.17.2009 8:35pm
wooga:
Piffle. None of these grounds are serious constitutional challenges to the proposals. They are only slightly less cranky than tax protester arguments.

The interstate commerce power includes the power to extensively regulate the production of agricultural crops for personal consumption; this bill regulates a $2.5 trillion dollar industry that involves vast amounts of interstate commerce.


Ohwilleke,

I have no personal background on this, but my understanding is that the 1945 McCarran-Ferguson Act severely restricts the ability for interstate health insurance. The part of your quote that I bolded... is just not true. You apparently believe Wickard v Filburn is a typical example of the reach of the commerce clause, rather than the "most far reaching example" in existence. As US v. Lopez made plain, the commerce clause is not a blank check anymore.
8.17.2009 8:35pm
BGates:
Oren, you're not claiming that a principled objection to the Supreme Court injecting itself into a Texas matter demands an objection to the idea of the Court overruling Congress on health care, are you?
8.17.2009 8:38pm
Mark N. (www):

As US v. Lopez made plain, the commerce clause is not a blank check anymore.

But as Gonzales v. Raich made plain, it's back to being a blank check again.
8.17.2009 8:41pm
einhverfr (mail) (www):

But as Gonzales v. Raich made plain, it's back to being a blank check again.


And as Gonzalez v. Oregon showed, the check isn't quite blank.
8.17.2009 8:46pm
Corkie the Dog (www):
Even if a "mandate" is really a "tax", any taxe collected by the Federal power either has to be uniform, or proportional (except income taxes.)

I don't see how a health care mandate can be either uniform OR proportional, unless I am missing something.

Sincerely,
Corkie the Dog
8.17.2009 9:24pm
Larry Sheldon:
For those of us in the "F" row, where is there any evidence that "Constitutionality" [is there such a word?} is remotely relevant to the Obama regime?
8.17.2009 9:39pm
Joe Kowalski (mail):
I don't see how a health care mandate can be either uniform OR proportional, unless I am missing something.

It seems to me that if the feds can levy a tax against everyone, and then allow people that do certain things to get out of the tax, you can effectively mandate people to buy health insurance.
8.17.2009 9:40pm
Daniel Messing (mail):
The substance (constitutionality) aside, will anyone have standing to challenge the law after enactment? Does one have to wait to be injured, e.g., by care (apparently) withheld by the law?
8.17.2009 9:40pm
Oren:

Oren, you're not claiming that a principled objection to the Supreme Court injecting itself into a Texas matter demands an objection to the idea of the Court overruling Congress on health care, are you?

I'm claiming that either the TX legislature is competent to determine the contours of the liberty protected by the US Constitution or it isn't.
8.17.2009 9:51pm
Allan Walstad (mail):
A number of comments have suggested that if Social Security, Medicare, etc, are constitutional, then it's hard to see why Obamacare wouldn't be too. The problem is that all those federal power grabs were and are patently unconstitutional. Yes, I'm aware that political appointees in black robes have declared otherwise, and if they solemnly affirmed that red is green I have no doubt some people would take it as gospel. As anyone with the slightest acquaintance with American history is aware, the Constitution was written to permit the federal government to take on a limited number of functions, with all others (if undertaken by government at all) reserved to the states. You might think the Tenth Amendment would have driven the point home.

If the commerce clause or the welfare clause permitted the feds to establish a socialized retirement fund or a socialized medical program for the elderly, or to coerce the states into doing what the feds have no authority to do, then those clauses would simply be a blank check for virtually unlimited federal action. But the Constitution was not written to give the feds a blank check. That's why Hamilton left the convention, remember? Constitutions don't hold up under shyster lawyerism, prying into a document in search of loopholes by which to undermine it and turn it upside down.

So now we are in the realm of unlimited federal power, where previously successful assaults on the Constitution are taken to legitimize future ones.
8.17.2009 9:53pm
Oren:

I don't see how a health care mandate can be either uniform OR proportional, unless I am missing something.

Are FSAFEDS, as they exists at the moment, constitutional?

What about 529 plans?
8.17.2009 9:54pm
ReaderY:
1. Roe v. Wade was not based on a doctor-patient relationship. The Supreme Court explicitly said that the doctor-patient relationship is subject to state police-power regulation in Washington v. Glucksberg, the assisted-suicide law cases.

2. The Supreme Court has upheld numerous federal laws regulating the doctor-patient relationship under the commerce power, from application of discrimination laws to health care to upholding federal override of California's medical marijuana laws, in ways which suggest that current commerce-clause jurisprudence poses no obstacle to Congress' overriding the doctor-patient relationship.

3. Moreover, the Supreme Court has taken the view that health care is commercial in character, hence regulable as an ordinary economic activity in the same way as wheat.
8.17.2009 10:01pm
Oren:

A number of comments have suggested that if Social Security, Medicare, etc, are constitutional, then it's hard to see why Obamacare wouldn't be too. The problem is that all those federal power grabs were and are patently unconstitutional.

This is a political non-starter -- conservatives that oppose the health care bill must position themselves as defenders of Medicare, not its executioners. Remember what happened to Rostenkowski (not that he didn't deserve it) when he stepped on the third rail of American politics.

Supposing the Supreme Court reversed course and agreed with you, do you care to wager how long it would take to pass a constitutional amendment allowing for medicare? (Recall that Seniors vote nearly twice as often as their 25-40 year old countrymen).


As anyone with the slightest acquaintance with American history is aware ....

Surely you mean anyone with the slightest acquaintance with American history that isn't serving on the Supreme Court ...
8.17.2009 10:13pm
Han Solo:

Personally, as a regular American its quite clear that the constitution isn't worth any more than the Charmin I wipe my rear end with.

The US Federal Government now believes that NOTHING is out of bounds and that there is NOTHING that they don't think they can do.

The only things the federal government treads lightly on at this point is the first 5 amendments because most people actually have a clue what they say...so they know its harder to get away with. Outside of those small paragraphs, the rest of the document is now totally useless.


We are only about 20 years away from the states being totally redundant and having a National Police and Fire Department.


Hopefully after the next revolution we can write the constitution in 3rd grade English with not sentances longer than 4 words so even federal judges and liberals can understand it.
8.17.2009 10:43pm
byomtov (mail):
A number of comments have suggested that if Social Security, Medicare, etc, are constitutional, then it's hard to see why Obamacare wouldn't be too. The problem is that all those federal power grabs were and are patently unconstitutional.

I strongly urge the Republican Party to make the abolition of these patently unconstitutional programs a major issue in the 2010 elections and beyond.
8.17.2009 10:43pm
Brian K (mail):
I strongly urge the Republican Party to make the abolition of these patently unconstitutional programs a major issue in the 2010 elections and beyond.

I strongly urge democrats to grow the balls to make use of what republicans have already given them.
8.17.2009 10:51pm
Allan Walstad (mail):


A number of comments have suggested that if Social Security, Medicare, etc, are constitutional, then it's hard to see why Obamacare wouldn't be too. The problem is that all those federal power grabs were and are patently unconstitutional.

This is a political non-starter -- conservatives that oppose the health care bill must position themselves as defenders of Medicare, not its executioners. Remember what happened to Rostenkowski (not that he didn't deserve it) when he stepped on the third rail of American politics.

I'm not a conservative and I wasn't talking political strategy.

Supposing the Supreme Court reversed course and agreed with you, do you care to wager how long it would take to pass a constitutional amendment allowing for medicare? (Recall that Seniors vote nearly twice as often as their 25-40 year old countrymen).

At least the feds would not be operating in open defiance of the law.


As anyone with the slightest acquaintance with American history is aware ....

Surely you mean anyone with the slightest acquaintance with American history that isn't serving on the Supreme Court ...

I don't know how they justify themselves, any more than I know how the (other) pols justify themselves.
8.17.2009 10:52pm
Hieronymous:
Einhverfr:

I do not quite understand your citing Gonzales v. Oregon as proof that a limited interpretation of the reach of the Commerce Clause has made a comeback. It is not bold to state that nearly all competent scholars agree by now that the Rehnquist Court's "Federalism Revolution" was dealt its death blow by Raich, which was clearly wrongly decided based on Justice Scalia's moralistic views concerning narcotics. Unless we are dealing with guns near schools (Sorry Feinstein!) or violence against women (Sorry Biden!), Congress may again regulate nearly anything under its post-New Deal Commerce Clause power.

Gonzales v. Oregon dealt with the interpretation of a federal statute, not its constitutionality under the Commerce Clause. Justice Thomas's dissent mentions that the Court's decision was inconsistent with its reasoning in Raich. Indeed it was . . . in principle. However, in legal terms, the cases are inapposite. The Court avoided any Constitutional question.
8.17.2009 11:03pm
Oren:

I strongly urge democrats to grow the balls to make use of what republicans have already given them.

Don't overplay the numbers game. The Dem majority is built on Webbs and Testers -- folks that won't be around in a few years if Obamacare doesn't play well in MT and VA. Pelosi and Reid gambled on running blue dogs in GOP districts -- the downside is now they've got to herd them.


I'm not a conservative and I wasn't talking political strategy.

That's the problem -- arguing that Obamacare is unconstitutional is proving far too much.


I don't know how they justify themselves, any more than I know how the (other) pols justify themselves.

Did you maybe consider (I know this is heretical), the notion that they may have interpreted the evidence differently from you? That is, is there room in your universe to more than one interpretation of the Constitution or are you a constitutional monist?
8.17.2009 11:52pm
Christopher Cooke (mail):
His blog post seems like an expression of personal biases about what the
Constitution should mean rather than thoughtful analysis of the current state of constitutional law. There is an interesting case on the constitutionality of the Public Company Accounting Oversight Board on which the Supreme Court has granted cert that may help define the modern scope of the anti-delegation of powers arguments, but I for one do not see this blog post as offering serious scholarship.
8.18.2009 12:01am
Ordovician Lapis (mail):
So now we are in the realm of unlimited federal power, where previously successful assaults on the Constitution are taken to legitimize future ones.


The constitution matters only to
1) foolish laymen who still believe its myth,
2) foolish lawyers who imagine its abandonment has some non-arbitrary basis.

To the aristocracy that governs us, the constitution is merely nuisance.

I was reading Cumont this morning, about religions in ancient Rome—but really about the evolution of great powers:

"…compare the government of the empire in the time of Augustus with what it had become under Diocletian. At the beginning of the imperial régime Rome ruled the world but did not govern it. She kept the number of her functionaries down to a minimum, her provinces were mere unorganized aggregates of cities where she only exercised police power, protectorates rather than annexed countries. As long as law and order were maintained and her citizens, functionaries and merchants could transact their business….

What do we find three centuries later? A strongly centralized state in which an absolute ruler, worshiped like a god and surrounded by a large court, commanded a whole hierarchy of functionaries; cities divested of their local liberties and ruled by an omnipotent bureaucracy, the old capital herself the first to be dispossessed of her autonomy and subjected to prefects. Outside of the cities the monarch, whose private fortune was identical with the state finances, possessed immense domains managed by intendants and supporting a population of serf-colonists. "
8.18.2009 12:11am
J. Aldridge:
The commerce clause would have nothing to do with Obamacare because commerce is is strictly regulated through duties and imposts on imports and not through statutory laws. Congress is prevented from imposing duties or taxes on States exports, reduces the commerce clause to a negative power (Madison called it a "negative and preventive provision against injustice among the States themselves").
8.18.2009 12:20am
Cornellian (mail):

Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is "obviously not"), and instead points to four problems under modern constitutional doctrine:


The premise is laughable. Everyone knows federalism's last gasp was extinguished by Justice Scalia in Raich v Ashcroft. The feds can do whatever they please just by invoking the magic words "Commerce Clause" and the Supreme Court will not stop them, at least not on federalism grounds.
8.18.2009 12:57am
Brian K (mail):
Don't overplay the numbers game. The Dem majority is built on Webbs and Testers -- folks that won't be around in a few years if Obamacare doesn't play well in MT and VA. Pelosi and Reid gambled on running blue dogs in GOP districts -- the downside is now they've got to herd them.

this comment was meant to refer the previous comment on elections. republicans have said and done some awfully stupid things in the past couple of months that can be used against them in the midterm elections.
8.18.2009 1:32am
Corkie the Dog (www):

Are FSAFEDS, as they exists at the moment, constitutional?

What about 529 plans?


Probably, and probably.

I still do not see how calling a mandate a "tax" makes it constitutional. Federal taxes must be either uniform or proportional (except for income taxes), and a mandate is neither. Why would a mandate to buy healthcare be a constitutional exercise of federal power?

Note that nobody is calling 529's or fsa's a "tax".

Sincerely,
Corkie the Dog
8.18.2009 1:42am
Oren:
(1) Congress can set the rate at which income is taxed.
(2) Congress can exempt from taxes income spent on certain expenditures.
∴ Congress can raise the net income tax rate while exempting spending on health insurance.

That's mathematically equivalent to a spending mandate -- if you don't buy insurance, you will be taxed more but if you do buy insurance, your tax bill will remain the same.
8.18.2009 2:33am
Oren:

this comment was meant to refer the previous comment on elections. republicans have said and done some awfully stupid things in the past couple of months that can be used against them in the midterm elections.

Don't count on it working against them, especially if momentum turns against the bill.

People have a natural tendency to side with the prevailing winner -- if the bill dies, the GOP will be vindicated in a huge way. Not that it would be the end of Obama &the dems, as predicted, but it will not work against the GOP in the midterms.
8.18.2009 2:36am
jellis58 (mail):
In my very unexpert opinion and not knowing exactly whats in the bill, it seems like only the tenth amendment arguement even has a prayer. Whatevers in the final bill though Im sure Congress will design it in a South Dakto v Dole way and not a New York v. Printz way.

On a side note, this looks a little bit like a question on the CA bar that I took last month. it was divided into three mini questions about the same law it was pretty obvious part 1 was a tenth amendment question that looked a lot like Garcia v. SAMTA (could not for the life of me remember the name while I was in there though), part 2 was a commerce clasue Lopez/morrison/raich question and part 3 was pretty much identical to S.D. v Dole....I just hope they dont take off too many points cause I called the case Dole v. South Carolina. I say close enough for a closed book exam.

I think I also refered to NY v. Printz on the tenth amendment question which I am now aware doesnt exist. I thought it was the take title waste case but thats NY v US and the brady bill case is printz v US....stupid bar.
8.18.2009 6:44am
jellis58 (mail):
and I called it NY v Printz again it appears....why do I keep thinking thats the name of that damn waste case? grr.....
8.18.2009 6:45am
DeezRightWingNutz:

The interstate commerce power includes the power to extensively regulate the production of agricultural crops for personal consumption; this bill regulates a $2.5 trillion dollar industry that involves vast amounts of interstate commerce.


Isn't this just an exercise in line-drawing or how you define the problem? Why isn't the first case "regulating the $X.X trillion agriculture industry" and the second "regulating the house call my neighborhood doctor makes?" I assume the agriculture regulation was passed as part of some larger bill of national import.

For that matter, why not just call all of it "economic activity," and since some of that crosses state lines, all of it is able to be regulated under the Commerce Clause?
8.18.2009 7:41am
sk (mail):
"Is Obamacare Constitutional?"

That depends on whether the potential decisionmakers (judiciary) like it.

The judiciary likes abortion rights-ergo, limits on abortion are unconstitutional.
My guess is they like Obamacare-ergo, it is constitutional.

Continue your Kabuki dance.

sk
8.18.2009 8:04am
egd:
Oren:

Nobody claims that "no law" means "some law", it's the antecedent phrases that are the subject of interpretation.

Of course, things not covered by the antecedent phrase may quite properly be legislated upon, which seems to be where you confusion lies.

This is a reasonable (although IMO (and ISCOTUSO) inaccurate) argument against the Second Amendment right to keep and bear arms.

But it fails when applied to the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

...unless you take the position that "respecting an establishment of religion, or prohibiting the free exercise thereof" is an antecedent phrase to the right to free speech.

"No law" under our modern jurisprudence does not really mean "no law," but rather "some law."
8.18.2009 8:42am
J.R.L.:
Allan Walstad wins the thread.
8.18.2009 8:46am
DiverDan (mail):
Issue Number 3 has long been a hot button issue for me - it seems that if you support Roe v. Wade, then you cannot logically also support any plan which entails the Federal Government making medical decisions for anyone. Many times during the Hillary Clinton push for her own plan during the Clinton Administration, I vigorously accused Hillary of hypocrisy for doing just that. While I continue to believe that Roe v. Wade was wrongly decided - at least based upon the total lack of Constitutional analysis in the opinion - it seems to me that essential holding of Roe v. Wade is that the Right to Privacy discovered in Griswold v. Connecticut prohibits the Federal Government from interfering with a woman's choice to have a medical procedure (which may not even be a medically necessary procedure) which her doctor is willing to perform. Now, unless you can argue that the Right of Privacy discovered in Griswold (which in that case was tethered to the marital relationship) and extended in Roe is limited to fertile females and ends at the outer limits of their uteri, then Roe compels the conclusion that if the Federal Government is going to go into the business of providing medical care, it is prohibited from interfering in the medical decisions made between an individual patient and his or her physician. And yes, I do understand that there is a difference between the Federal Government prohibiting a procedure and agreeing to pay for it; hence the cases on the Hyde Amendment (the 1976 Amendment, not the unrelated 1997 Hyde Amendment) prohibiting the use of Federal Funds for the purposes of paying for abortions. But query, if the Government is running what amounts to health insurance in the "Public Option", with individuals paying premiums, are these really "Government Funds"? If the Government can, even as an insurer, get involved in medical decisions, prohibiting some and allowing others, then the only justification for Roe v. Wade is dead.
8.18.2009 10:48am
Jon Roland (mail) (www):
Some of those on this thread should re-examine your comments that abjectly surrender to tyranny and slavery, just because the Constitution, as originally understood, seems to momentarily lack majority support, or any support among those in power. Generations of men and suffered, fought, and died to win the constitutional rights you so easily throw away in what can only be described as dishonorable cowardice.

I prefer to stand with honorable men for the Constitution, even if that means standing alone. Even if it means dying, or killing. An honorable man can ask for nothing more in this life but a chance to give a good accoount of himself on the field of combat.

"If ye love wealth better than liberty, the tranquillity of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen." Samuel Adams, 1776.
8.18.2009 11:39am
Guest14:
I love reading about the wing-nut fantasy constitution on this blog. Pure comedy.
8.18.2009 11:50am
ShelbyC:
Oren:

Nobody claims that "no law" means "some law", it's the antecedent phrases that are the subject of interpretation.


Doesn't "no law" nowadays mean "any law, as long as a judge says it servers a compelling state interest"?
8.18.2009 11:53am
Jon Roland (mail) (www):
If it were constitutional to tax people to coerce them into doing something the government does not otherwise have the power to command them to do, then it should be constitutional to tax people:

1. Who don't regularly attend an approved church.
2. Who don't speak in support of the Party in power.
3. Who don't publish things that the government demands.
4. Who petition for redress of grievances that are disfavored by government.
5. Who try to defend themselves or others from criminal attack.
6. Who try to avoid providing shelter in their homes for government troops.
7. Who don't allow warrantless searches of themselves, their homes, or their effects.
8. Who demand indictment by a grand jury.
9. Who object to deprivation of their lives, liberty, or property without due process.
10. Who object to the taking of their property without compensation.
11. Who demand a jury trial.
12. Who demand to hold an election when Congress and the President decide to suspend further elections and hold their offices for life.

No, the power to tax is only the power to raise revenue, and to do so under the restriction that it be for the general welfare, pursuant to one or more of the delegated powers, not to favor some section or faction.
8.18.2009 11:57am
rick.felt:
"I love reading about the wing-nut fantasy constitution on this blog. Pure comedy."


Which "fantasy constitution" is that? The one that says that the Federal government has the power to pass laws that regulate the amount of wheat that you can grow on your property for your own consumption, because the Constitution gives Congress the power to "regulate Commerce... among the several States"? Man, those are some crazy fascist wing-nuts who think that growing your own vegetables in a backyard garden is within the regulatory jurisdiction of the Federal government! This must be something that Chimpy McBushitlerburtoncorp came up with to help out his Big Oil cronies.
8.18.2009 12:28pm
Guest14:
Which "fantasy constitution" is that?
I'm talking, of course, about the one that has no effect whatsoever on the way the world actually operates. Claiming that the "true" constitution somehow prohibits actions Congress has been taking for decades, which have been repeatedly upheld by the courts, and which enjoy popular political support, is just silly.

You're not going to find the law simply by studying a copy of the constitution and other 18th century texts.
8.18.2009 12:36pm
ShelbyC:

Claiming that the "true" constitution somehow prohibits actions Congress has been taking for decades, which have been repeatedly upheld by the courts, and which enjoy popular political support, is just silly.


Tell that to Alan Gura.
8.18.2009 12:40pm
ShelbyC:

Claiming that the "true" constitution somehow prohibits actions Congress has been taking for decades, which have been repeatedly upheld by the courts, and which enjoy popular political support, is just silly.


Better yet, tell it to Thurgood Marshall
8.18.2009 12:50pm
Guest14:
Thurgood Marshall is dead.
8.18.2009 12:53pm
egd:
1. Who don't regularly attend an approved church.
- Donations to churches are not taxable, thereby reducing the burden of the taxpayer (and increasing the relative share of the tax burden on others).

2. Who don't speak in support of the Party in power.
- TARP funding under President Obama has gone disproportionately towards those areas which supported him. Red states/districts are therefore being taxed to support those who voted for the Party.

3. Who don't publish things that the government demands.
- The White House has decided to grant to specific TV networks that push its agenda exclusive content regarding the administration.

4. Who petition for redress of grievances that are disfavored by government.
- Sovereign Immunity.

5. Who try to defend themselves or others from criminal attack.
- Gun taxes &regulations.

6. Who try to avoid providing shelter in their homes for government troops.
- Fair enough.

7. Who don't allow warrantless searches of themselves, their homes, or their effects.
- Ever refuse to allow a police officer to search your car? Expect to wait by the side of the road for an hour (the cop being paid the whole time) while you wait for the K9 unit to show up and search the area around your car. Then another couple of hours for them to come back with a warrant because the dog 'may' have found something.

8. Who demand indictment by a grand jury.
- Legal fees aren't free.

9. Who object to deprivation of their lives, liberty, or property without due process.
- Challenge a speeding ticket some time and see if your objection is free, or if the tax man wants you to shell out a little extra for challenging the police officer.

10. Who object to the taking of their property without compensation.
- See Didden v. Village of Port Chester

11. Who demand a jury trial.
- An extra expense, as anyone who has ever requested a jury trial will tell you.

12. Who demand to hold an election when Congress and the President decide to suspend further elections and hold their offices for life.
- While this hasn't occurred, if you do choose to challenge one of the two majority parties, then you suffer a much greater expense in getting on the ballot in many jurisdictions. Not to mention that the majority parties get government funds to campaign.

Although you may have been making this point all along.
8.18.2009 12:53pm
ohwilleke:
Or are you saying that we should consider witholding 100% of federal highway funds if states don't cooperate with drinking age laws to be Constitutional?


Yes. There are no precedents that have held otherwise, and dirnking is related to highway spending.

Also, the linkage between health spending and the requirements of this bill (which frankly don't involve much more state spending than current law anyway), have a tighter nexus to the program.

How is health care linked to interstate commerce?

1. Almost all private health insurance companies are owned by publicly held companies traded in national financial markets; so are many hospital chains, medical equipment and supply providers, and pharmaceuticals companies. Thus, all of these companies impact and are made possible by federal capital markets.

2. Almost all private health insurance companies do their critical actuarial work outside the state where the services are provided.

3. Private health insurance companies routinely use the postal system, telephones, the internet and the federal reserve check clearing system to do business, all of which are instrumentalities of interstate commerce which have routinely been upheld as grounds for federalizing crimes when involved.

4. Medical equipment and supplies, and pharmaceuticals are overwhelmingly purchased in interstate commerce. They are already subject to federal regulation under the FDA and federal patent laws.

5. Doctors are trained and placed in residencies an interstate educational market. MCATs are national, accreditation is national, and the students routinely cross state lines to attend medical schools. State regulation of market entry is outsourced to national firms.

6. A majority of private health insurance is purchased by firms with offices in more than one state. The vast majority of firms that purchase private health insurance are engaged in interstate commerce in some capacity. Private provision of employee benefits of all kinds is already comprehensively regulated by ERISA.

7. Almost all private health insurance plans provide some form of compensation for health care purchased in other states.

Certainly, the case that health insurance is interstate commerce is strong than the Depression era Wickard v. Fillburn, recently cited by SCOTUS as good law, and some of the more extreme cases testing federal civil rights laws.

@Jon Roland: The power to tax is restricted when it conflicts with and targets another federally guaranteed right. But, health care is not a federally guaranteed right.
8.18.2009 1:04pm
einhverfr (mail) (www):
ohwillke:

Yes. There are no precedents that have held otherwise, and dirnking is related to highway spending.


Two points:

1) Even the precedents which have upheld the things like drinking age laws and highway spending have held there are limits to what conditions the government can place on funding.

2) During his confirmation hearings, CJ Roberts discussed this issue in depth and provided a fair bit of discussion as to the limits of making federal funding contingent on state cooperation. As a general rule the Federal government is not allowed to be unduly coercive towards the states in this way.

I don't think the court has moved away from saying that the government may not coerce the states through federal spending.
8.18.2009 1:32pm
Oren:

But it fails when applied to the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

...unless you take the position that "respecting an establishment of religion, or prohibiting the free exercise thereof" is an antecedent phrase to the right to free speech.

The antecedent phrase (note, not the precedent phrase) is the "abridging the freedom of speech".

What I was thinking of is something like the various AS and CT dissents against obscenity rulings. They claim Congress can pass a law abridging the liberty to disseminate pornography because it does not fall under the rubric of "freedom of speech".

Only a fool would ascribe their position to say that the "no law" part really means something else.
8.18.2009 1:41pm
rick.felt:
Medical equipment and supplies, and pharmaceuticals are overwhelmingly purchased in interstate commerce. They are already subject to federal regulation under the FDA and federal patent laws.

You're right, generally: after Wickard, virtually anything is commerce between the several states. But this patent argument is odd.

The Federal government has the power to create patent law because that power is specifically enumerated, not because patented devices have some sort of impact on interstate commerce. I've never heard an argument that because an activity makes use of a patented device, that activity is therefore subject to Federal control. I don't see how regulating such an activity would "promote science and progress in the useful arts." I mean, I make use of patented (or previously patented) devices in every single moment of my life. I wonder if the federal goverment could regulate when I take a leak because my toilet is patented.
8.18.2009 1:44pm
Jay Cost:
By the time any challenge to Obama's health-care plan reaches the Supreme Court -- which will take years -- he'll have picked several liberal justices, who will be hostile to such structural constitutional arguments.

By packing the court, he'll ensure that it gets upheld, whatever flaws it may have under existing separation of powers and Commerce-Clause precedents.

Have any of the liberal justices ever accepted the Lopez ruling limiting Congress's power under the commerce clause -- or even the Tenth Amendment ruling in U.S. v. New York?
8.18.2009 1:47pm
Oren:


No, the power to tax is only the power to raise revenue, and to do so under the restriction that it be for the general welfare, pursuant to one or more of the delegated powers, not to favor some section or faction.


Where do you see such a limitation in the 16th amendment? I see the power to tax all income whatsoever.

Maybe you can reverse incorporate some rational basis into there (somewhow) but as its written, I read a power to tax unencumbered by those (laudable!) restrictions.
8.18.2009 1:55pm
ShelbyC:

Where do you see such a limitation in the 16th amendment? I see the power to tax all income whatsoever.


They have the power to tax all income without apportionment. The 10th amendment limits the criteria that they can use to exercise that power.
8.18.2009 2:01pm
kurt9 (mail):
Just as Democrats spent 70 years increasing the power of the presidency, and of the federal government and were appalled by what George W Bush did with all that power when he got a hold of it, there are some issues it may be fun to point out to the advocates of ObamaCare.

1. If there is a public option, that means the government will pay claims and via the CPT code, drug codes, etc. know what they are for.

a. Do we REALLY want a permanent government record of all the women who ever had abortions?

b. Do we REALLY want a permanent government record of all the people who ever got birth control, and when?

c. Do we REALLY want to make reporting of 'reportables' to law enforcement computerized and efficient?  These range from gunshot wounds (almost always reported) to allegations of domestic violence (which may just be the doctor sees a bruise on someone's back and are seldom reported), having certain diseases, etc.

d. do we REALLY want computerized medical records subject to the same review all insurance companies conduct wherein the government can see if the doctor says we are using illegal drugs, engaging in risky sexual practices, or doing other things that they think mean we're not taking care of ourselves properly?

e. Do we really want the government to hear all about whatever idiotic psychiatric or other diagnoses incompetent doctors enter into our charts - or even the valid ones - and then see what they do with the information?  E. g. a recent doctor charted I drink 2 tumblersfull of scotch daily when I told her I drink 2 beers a week and maybe a scotch and soda, maybe not, in addition.

2. Do we really want the government caught between the rock and hard place of protecting our medical confidentiality and sharing the information above with local and state and federal law enforcement agencies?  E. g. some state that has a parental notification law decides to go check with the parents of all the girls who got abortions whether they were notified or not? 

3. What about the issue of organ donation?  Everyone whines there are not enough donors. The government could pay to have everyone tissue typed and have it in their charts so they know who is a desirable donor..... then what happens?

4. Palin's death panels.  Of course, that could NEEEEEEEEVER happen here!  NEEEEEEVER.  At least not as long as we have a wonderful CARING and COMPASSIONATE guy like Obama in charge!  (try not to puke, please).  Ask all the democrats if they think President Cheney would be able to behave and not establish death panels to control costs so he didn't have to raise corporate taxes on responsible companies like Halliburton and see what they say.  Remind them of all the stuff Dubya did using all that federal power Democrats created over the years.
8.18.2009 5:44pm
Jon Roland (mail) (www):
ohwilleke:

@Jon Roland: The power to tax is restricted when it conflicts with and targets another federally guaranteed right. But, health care is not a federally guaranteed right.

You are confusing entitlement and right. An entitlement to health care is not, and cannot be, federally guaranteed, but there is a right not to be impeded from seeking health care through one's own means, so long as that seeking does not threaten the rights of others.
8.18.2009 6:48pm
Barbara Skolaut (mail):
"who appear to have operated from the presumption that Congress can exercise powers which are not enumerated"

So what else is new? ReCongress has been doing that for decades. :-(
8.18.2009 6:50pm
Jon Roland (mail) (www):
egd:

Although you may have been making this point all along.

Finally someone who gets it.
8.18.2009 6:50pm
Jon Roland (mail) (www):
Barbara Skolaut:

"who appear to have operated from the presumption that Congress can exercise powers which are not enumerated"

So what else is new? Congress has been doing that for decades. :-(

So what are you doing to resist that?
8.18.2009 6:55pm
NoPublic:

Do we REALLY want a permanent government record of all the women who ever had abortions?

Do we REALLY want a permanent government record of all the people who ever got birth control, and when?


As opposed to random corporations and clearing houses having that info and selling it to the highest bidder?

HIPAA is either sufficient remedy or it is not.
Either way, who has the information is not relevant.
8.18.2009 7:15pm
jellis58 (mail):
Guest14: "Claiming that the "true" constitution somehow prohibits actions Congress has been taking for decades, which have been repeatedly upheld by the courts, and which enjoy popular political support, is just silly."

The court in Brown v Board of Education disagrees....if you replace congress with the state legislatures but same idea.
8.18.2009 7:18pm
/:
As opposed to random corporations and clearing houses having that info and selling it to the highest bidder?

If those are really the choices, I'll deal with the entity that's not taxing me and policing my behavior upon penalty of imprisonment.
8.18.2009 7:42pm
Joseph Slater (mail):
Jon Roland writes:

Some of those on this thread should re-examine your comments that abjectly surrender to tyranny and slavery, just because the Constitution, as originally understood, seems to momentarily lack majority support, or any support among those in power. Generations of men and suffered, fought, and died to win the constitutional rights you so easily throw away in what can only be described as dishonorable cowardice.

I prefer to stand with honorable men for the Constitution, even if that means standing alone. Even if it means dying, or killing. An honorable man can ask for nothing more in this life but a chance to give a good accoount of himself on the field of combat.


So, if, say, a form of health care reform currently under consideration is enacted -- e.g., with a "public option" -- and the Supreme Court rejects a Constitional challenge -- which it would -- you're going to start "killing"? And/or "dying" while on the field of combat?

Consider decaf.
8.18.2009 8:02pm
Joseph Slater (mail):
And as to the Supreme Court switching its opinions, let's be clear. The Court is highly unlikely to switch it's opinions on central issues when the mass of the country feels differently. Brown, for example, was a product in part of evolving views on race.

The idea that the Supreme Court is going to strike down, say, Medicare/Medicaid, Title VII, New Deal laws because a handful of libertarians believe That's What The Constitution Really Demands represents at best an extremely naive idea of how law and politics work. And the idea that the country is heading in a direction in which that sort of thing is more plausible also strikes me as naive.
8.18.2009 8:07pm
Jon Roland (mail) (www):
Joseph Slater:

So, if, say, a form of health care reform currently under consideration is enacted -- e.g., with a "public option" -- and the Supreme Court rejects a Constitutional challenge -- which it would -- you're going to start "killing"? And/or "dying" while on the field of combat?

Of course not. That's for situations in which my life, liberty, or property, or that of people around me, is directly threatened. Resistance to usurpation is mainly noncooperation: refusing to assist enforcement, to testify, to convict if on a jury, to carry out court orders, or verbally accede to any of that.

First we have to stop the lying -- that things are lawful that are not -- and acting on that position.
8.18.2009 8:29pm
ArthurKirkland:

First we have to stop the lying

We have not attacked the wrong country based on false and slanted premises for more than five years . . . so we have that going for us,

which is nice.
8.18.2009 9:41pm
PaulS (mail):
Could the democratic party be sued under RICO if they passed a healthcare bill (on party line vote) requiring people to purchase health insurance? I am not asking about the individual senators/congressmen but about the party they all belong too ie the actions they are taking as a group
8.19.2009 8:30am
Joseph Slater (mail):
PaulS:

No, for a whole bunch of reasons.
8.19.2009 10:02am
Jon Roland (mail) (www):
@PaulS:
A political party is not legally responsible for the actions of its member officials, who, after all is said and done, are parties unto themselves who raise their own money and just happen to fly under the flag of the main party to pick up habitual party voters. The political parties, other than the Libertarian, have no rules that allow them to vet their nominees or exclude anyone who does not adhere to their platforms. That is why both major parties have a divide between their grass-roots and their candidates, with the latter representing "investors" who expect to be able to recapture their "investments" from the actions of their candidates.

The Libertarian Party has a by-law that in every election there must always be a "none of the above" option. If the major parties had a similar rule there might be a lot less corruption.
8.19.2009 10:10am
Joseph Slater (mail):
See also the Speech and Debate clause. See also the fact that insurance mandates (e.g., for auto insurance) are not illegal or unconstitutional.
8.19.2009 10:28am
Joseph Slater (mail):
Another opportunity to link to one of my favorite blog posts ever, by one of my colleagues.

The Legality of Your Zombie Escape Plan.
8.19.2009 11:34am
Joseph Slater (mail):
Oh damn, wrong thread!
8.19.2009 11:34am
Hans Bader:
The U.S. Commission on Civil Rights says that the racial preferences and quotas contained in ObamaCare are likely unconstitutional.

The U.S. Commission on Civil Rights has criticized the racial preferences in the health-care bill backed by Obama, saying that they are probably unconstitutional under the Supreme Court's Adarand decision, which subjected race-based affirmative action to "strict scrutiny" and barred federal racial preferences absent evidence that they are needed to remedy intentional past discrimination by the government. (In cases like Rothe Development Corp. v. Department of Defense and the Western States Paving case, the courts have sometimes struck down federal affirmative-action plans sponsored by liberal lawmakers, citing the Supreme Court's Adarand decision. ObamaCare goes even further in mandating the use of race than past affirmative action plans.)

Fact checkers say Obama is lying about health care. ObamaCare will cost far more than its predicted trillion-dollar price tag.

One of Obama's own advisers says the Obama Administration's health-care plan will harm people with insurance while raising their taxes. Obamacare will take away 5 important freedoms, notes a CNN commentary. It will also destroy many affordable health-care plans while breaking Obama's campaign promises.
8.19.2009 4:51pm

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