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Is ObamaCare Unconstitutional?

David Rivkin and Lee Casey argue that a federal mandate requiring all individuals to obtain health insurance would lie beyond the scope of Congress' enumerated powers. Specifically, they argue that neither the power to "regulate commerce among the several states" nor the taxing and spending power could support such an all-encompassing mandate. Here is a taste of their argument:

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

Jack Balkin is similarly unconvinced. I generally agree with his bottom line, but would question some of his argument as well. First, he chides Rivkin and Casey for making an argument that would effectively invalidate the New Deal. I am not sure this is true. While some post-1937 programs might be at risk, one might also distinguish Wickard on the grounds that it involved a commodity sold in interstate commerce (wheat), whereas health insurance is a service. One might also argue that there is a difference between seeking to control the conditions of any commodity sale (its price, quantity, etc.) and mandating that a sale take place. This line would be similar to that embraced in some New Deal commerce clause cases that upheld federal regulations setting conditions on the manufacture of goods sold in interstate commerce while ostensibly leaving the manufacture of goods not sold in interstate markets untouched. If I recall correctly, this line was maintained until Maryland v. Wirtz in 1968. So while The Rivkin-Casey argument is aggressive, I don't think it would completely overturn the New Deal.

Balkin also chides Rivkin and Casey for citing Bailey v. Drexel Furniture, "a case from the Lochner Era," to make their case. Well, like it or not, Bailey has never been expressly overturned, and I think there's a good reason for that. In Bailey, the Court held that Congress could not use the taxing power to regulate behavior that would otherwise lie beyond the scope of the federal government's other enumerated powers. This may well be true. The problem with Bailey, then, is not its view of the taxing power, but rather the Bailey court's restrained view of the federal commerce power. What makes Bailey and other cases largely irrelevant today is that there is so little that the federal government seeks to tax that it cannot otherwise regulate. I'd also note that it is not as if the Court is averse to relying upon other cases with Lochner-era pedigrees. Indeed, Meyer v. Nebraska and Pierce v. Society of Sisters are still good law, and each is closer kin to Lochner than Bailey, as they relied upon Lochner's substantive due process rationale.

Speaking of substantive due process, there may be other constitutional problems arising from national health care reform — but not of the enumerated powers variety. While the federal government may be able to require national health insurance coverage, could it require all individuals to purchase plans that cover certain procedures? What if the guidelines for acceptable plans include contraception, abortion, and certain types of end-of-life care? Could the federal government require devout Catholics to purchase such plans for themselves? Insofar as a new federal entitlement and regulatory scheme severely limits the ability of individuals to make fundamental health-related choices for themselves without undue federal interference, might it also run up against Griswold, Cruzan, etc.? So long as individuals retain a choice of health care providers such concerns may be quite marginal, but were a "public plan" to become a de facto single-payer plan, the constitutional issue could grow. If limitations on abortion procedures must contain a health exception in order to be constitutional under Casey, would this complicate efforts to control costs by excluding some potentially life-saving treatments under s single-payer system? Of course, these sorts of arguments are more likely to come from libertarians than conservatives, as the latter may be uncomfortable with expanding the scope of the Court's fundamental rights jurisprudence.

UPDATE: Calvin Massey adds his thoughts here.

Jack Smith (mail):
Prof. Adler,

Even if everything you say is true, Congress could still regulate health insurance markets under the Bankruptcy Clause, because catastrophic health care costs bankrupt businesses (e.g., insurance companies) and families (e.g., those without health insurance). Given that health care regulation is economic, the rational-basis test would be insurmountable for an challenger alleging he was forced to buy health care insurance because of federal government regulation.
8.22.2009 7:23pm
progressoverpeace (mail):
The most glaring point of un-Constitutionality about The Precedent and Washington junta's attempt to acquire unlimited power for the federal government goes back a ways to the idiotic argument that the alleged Constitutional scholar in the White House (don't make me laugh - Harvard should be ashamed for graduating that idiot) offered, arguing that the federal government has the power to just open up a company in order to "provide competition" to the private sector. I have never heard such idiocy in my life, neither from the Constitutional side nor the economic one. If the federal government were given such power, then it would be unlimited in its reach, which goes against the primary motivation for the Constitution, itself.

What was even more distressing than that bit of governmental lunacy was the fact that none of the great lawyers could see fit to roundly denounce such a moronic justification for federal action. I have never been more disappointed in American lawyers in my life. It was a pathetic display and they should all be ashamed of themselves for not jumping on that ridiculous argument at the very beginning. Instead, they all seemed to miss the obvious, and we have been confronted with a tsunami of the same stupidity emanating from all of the Washington junta, wiht the mantra of 'the federal govenrment opening a company to "provide competition" to the private sector' being their main sales line.

It's nice to finally see some arguments about the obviously un-Constitutional character of the federal government's insane power grab, but this shoulod have happened long ago, and it should have cut the knees out of the moronic "provide competition" silliness. Are there no lawyers around who have the intellectual integrity to call The Precedent what he is - a moron who knows nothing about the Constitution? Don't forget, The Precedent knows so little about our Constitution that he characterized it as "a charter of negative liberties"? Well, that's not at all what it si, as it is the architectural plan for our federal government. The idiot characterized it as sucha charter, though, because like most lunatic lefties, when he talks about the Constitution, he really only means a few amendments for the rights he likes to claim, along with the "equal protection" clause that the left has abused for decades. But lefties never address the body of the Constitution, which is the true meat of the document, specifying the areas and limits of our federal arms.

I am beyond disappointed in our lawyers, who have allowed this charlatan in the White House to carry on as if we had no Constitution without so much as a peep. Shameful.
8.22.2009 7:31pm
Barbara Skolaut (mail):
We haven't followed our Constitution in decades, Jonathan. If we had, there would be no Department of Education, or of Health and Human Services, since there is NOTHING in the Constitution that gives the federal government the right to interfere in any of those arenas.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

When was the last time that amendment meant anything?
8.22.2009 7:39pm
Mark N. (www):
As with many arguments, this still seems to prove too much as regards Medicare. If indeed it is unconstitutional to require me to purchase health insurance, and Bailey is still good law in holding that the government may not impose via taxation what it could not impose directly, then requiring all employees nationwide to pay into a health-insurance scheme for the elderly would be unconstitutional.

Of course, it's always possible to argue that both the current proposals and Medicare are unconstitutional. But my impression is that most commentators, at least from their tone, appear to think that the current proposals are more unconstitutional than any existing government health-insurance programs or regulations. If so, I'm curious what the rationale is that distinguishes them. Is "extend Medicare to cover everyone" unconstitutional in a way that Medicare as currently constituted is not?
8.22.2009 7:53pm
PersonFromPorlock:
JA, where in the Constitution does it say they can't do this even if the government claims a compelling interest? That's the current state of the limit on powers.
8.22.2009 8:05pm
Bruce Hayden (mail):
I think that there might be problems if the U.S. were to try to merely regulate health insurance, since health insurance has traditionally been regulated at the state level, and there is only limited crossing of state borders.

BUT, the easy solution around that would seem to be to nationalize the health insurance market. The argument could be that, fine, in the past, the market was intrastate, but the U.S. has now made the market interstate. And that should sit just fine within the interstate commerce clause. And, if there is at least some national policies, or at least multi-state, then anything else the government might want to do to regulate the insurance market could be seen as just tag along.

The first assumes that health insurance is intrastate. But, it isn't. I live and work in Nevada, and have Anthem BC/BS of AZ as my insurance carrier. Why? Our home office is in Phoenix, and our AZ BC/BS works just fine with the BC/BS network here in NV, or, indeed, apparently, throughout the country. So, I would probably argue that while at one time, the health insurance market was intrastate, it has been interstate for awhile now.
8.22.2009 8:16pm
Matt P (mail):
Isn't mandating a person's action substantively different from regulating something? If not, is there anything that the federal government can't do?
8.22.2009 8:27pm
OrinKerr:
Give Rivkin &Casey's views of the Constitution as seen in their past op-eds, I assume they think the only way health care reform would be constitutional is if the President ordered it under his Commander in Chief power.
8.22.2009 8:32pm
peterepeat (mail):
I dont think much of their arguments, but is there a precedent for really requiring citizens to buy a particular good or service? That strikes me as extraordinary.

Is there another field besides liquor and health insurance in which Americans are limited to buying said services only in their own states? I guess the rationale is that if we could buy insurance from providers in other states, the fed govt would have to set minimum standards, and Congress would have a hard time agreeding on standards that would be acceptable to all factions.

This rule strikes me as appalling betrayal of the spirit of the period in which the Constitution was founded--to make America a great open market. It would make an interesting lawsuit if someone tried to have the law invalidated, though to be honest I cant think of what right would be violated. I suppose under an originalist commerce clause interp, you could argue Congress doesnt have the power to force people to buy goods and services only from providers in their own states.
8.22.2009 8:34pm
peterepeat (mail):
by the way, i suspect opening up the interstate market in health insurance would go a long way towards lowering medical costs. so would ending the tax subsidy for employer provided health care. I realize Congress can do that, but one could argue that not giving individuals who get it from other sources the same tax credit constitutes some sort of 14th amendment problem. that's not going anywhere, either.
8.22.2009 8:37pm
Mark N. (www):

Is there another field besides liquor and health insurance in which Americans are limited to buying said services only in their own states?

I believe most (all?) states have similar in-state requirements for homeowner and car insurance. There are national companies (as with health insurance), but they have to be licensed by each state they want to do business in, and you have to deal (at least officially) with their local branch in your state.
8.22.2009 8:53pm
Daniel Messing (mail):
One of my law professors said that law school required three years because indoctrination (a/k/a "thinking like a lawyer") took that long.

If the Constitution were still viable, then its basic construction, giving only specific, enumerated powers to the Federal government, would stand. The Supreme Court has undermined it so completely that lawyers think it worthwhile to re-arrange the deck chairs rather than attempt to turn the ship.
8.22.2009 8:53pm
David Cohen (mail):
I'm skeptical about any constitutional argument because the judiciary simply isn't going to prevent the political branches from imposing huge public welfare programs. And maybe it shouldn't. After all, we get the government we deserve.

But...

What makes a health insurance mandate different from growing wheat in the backyard is that the wheat grower chose to perform an act necessary to fall within the scope of the law. The wheat grower engaged in commerce, albeit a tiny bit of indirect commerce. People who are not insured have not acted. Is not acting in interstate commerce really the same as acting in interstate commerce? Does the power to regulate interstate commerce really reach people who haven't acted at all, even if the failure to act makes insurance more expensive for others?

It seems to me that choosing not to act is a more troublesome basis for federal regulation under the commerce clause than choosing to act in a small way that only indirectly effects interstate commerce.
8.22.2009 8:53pm
progressoverpeace (mail):

OrinKerr:
Give Rivkin &Casey's views of the Constitution as seen in their past op-eds, I assume they think the only way health care reform would be constitutional is if the President ordered it under his Commander in Chief power.

Health care is a state issue, not a federal one - as is true for all social issues. I'm not sure why this is a difficult concept for anyone.

I haven't read their other op-eds, so I'm not sure what sorts of executive orders you're referring to (that they supported against your objections, I gather) but I'm guessing they had to do with national security. Is that what you are addressing, here, with a bit of sarcasm?

I would like to know what you think about the notion that the federal government has the power to just open up a company in order to "provide competition" to the private sector. Do you not find that to be the dumbest argument that has ever come out of Washington, and the most dangerous?
8.22.2009 9:02pm
OrinKerr:
Progressoverpeace,

My comment is about Rivkin &Casey's past op-eds, which argued that all of the Bush Administration's antiterrorism measures were lawful under the Commander in Chief power. If you have not read these op-eds, you should do so if you would like to respond to my comment.

As for what is the dumbest idea tp come out of Washington, and the most dangerous, I think the internment of U.S. citizens of Japanese descent in World War II was far worse. Do you really think this is worse than that? If so, why?
8.22.2009 9:10pm
Anononymous314:
The main problem with having to rely on "constitutional" law as precedent is that it has little to nothing to do with Constitutional activity.
8.22.2009 9:10pm
PeteP:
"Congress could still regulate health insurance markets under the Bankruptcy Clause,"

Perhaps, but that is very different from mandating that individuals purchase that product. And this includes 'doing it on the sly' via a tax penalty for NOT buying it.

However, it's been a long long time since the Federal government considred itself bound by the Constitution when it comes to setting social agendas, and spending money.

You might as well spend your time trying to get Obama kicked out on the 'birther' issue - it's a non-starter.

This biggest and best hope is the Democrats circular firing squad, which is in full swing. Second best hope - a few ( damned few ) Republican Senators willing to lead a complete shut-down of Congress. This can be done, by any Senator. Having several would allow for relief shifts and bathroom breaks. But those few would have to be willing to risk the wrath of their own party leadership, who are as deep in the pockets of corrupt government as the Dems.
8.22.2009 9:28pm
progressoverpeace (mail):

Orin:
My comment is about Rivkin &Casey's past op-eds, which argued that all of the Bush Administration's antiterrorism measures were lawful under the Commander in Chief power. If you have not read them, you should do so if you would like to make sense of my comment.

Yes, I figured. I just think that jumping from national security to social issues, with respect to the federal govenrment's powers, is quite a leap. One area falls within the primary tasks of the federal government while the other falls well outside.
As for what is the dumbest idea tp come out of Washington, and the most damgerous, I think the internment of U.S. citizens of Japanese descent in World War II was far worse, Do you really think this is worse than that? If so, why?

Putting aside the utter economic silliness of the proposal that the federal government could provide competition to the private sector, if the federal government were given the power to just open up a company in order to "provide competition" to the private sector, then there would be no limits, whatsoever, on the federal government. Commerce clause arguments would never again come into play in any way (even to be twisted and abused) because the act of participating in any market would clearly be "commerce". Such a federal government would know no bounds, at all. All they would have to do to take over any sector is to open a company, ostensibly to "provide competition" and then the game is on. The private sector can be crushed at any time, leaving the federal government in charge. That is the most dangerous development that can ever happen and an attempt to prevent that is the exact reason the Constitution was written, to begin with. Right?

I do find it interesting that you, again, counterpose national security issues with social issues, at the federal level. Do you find some sort of parity in those?

I'm starting to think that the best thing to happen is for Washington to push this un-Constitutional and un-American health care takeover through and have states that respect the Constitution and our founding secede, since the Constitution seems to be dead in the US and our federal government is working to grab all power it sees. The only way to revive our Constitutional structure is to have states leave, start again, and form a nation that is beholden to the founding documents and the individualistic traditions of America - which are what has marked the major differences between America and the rest of the world and the reason why America has outperformed all of them. Let the leftists have the remaining US as their super-state utopian nightmare and the rest of us can live in a nation that respects the essence and traditions of our founding.
8.22.2009 9:29pm
n_shapero (mail):
1. The use of the Army for internal policing (very narrowly avoided under the G. W. Bush Administration. Forbidden under posse commitatus (correct my spelling, if I am in error here).

2. Warrantless wiretaps.

3. Release of the name of an active duty CIA agent (a crime under federal law). Also, based on the required signature on SF 312 for ANYONE being granted a security clearance, a violation of several other laws, I'd guess (as in, "espionage").

4. Need I REALLY go back to Executive order 9066 (General De Witt lied - and there was no military necessity, just racism and greed involved).

Need one continue? The Federal government has done things under various administrations (not JUST the GWBush administration) that don't fit with the strictest interpretation of the law, let alone of the Constitution. Where was the anger when previous violations of the law and the Constitution occurred?

No, I'm afraid this all sounds like another turn of the birthers and the "death panel" liars; people who are just so terrified of a black man in the White House who is, HORROR OF HORRORS a "liberal".

If you're going to get upset over something, get upset over congressmen and senators who have been bought and paid for by major corporations, and who hypocritically deny that THEIR adulteries and crimes are not worthy of punishment, when they went hell bent for leather after "liberals" who had the audacity to get an agreement on the definition that differed from standard English (so that a woman could have sex with a man while the man WASN'T having sex with the woman).

If you're going to apply standards of conduct to the "liberals" and the President, then you jolly well better apply them to your "conservative" representatives as well(and I HATE those neocons who have stolen MY Republican party and ruined it over the last 40 years).

If this sounds like "a pox on both your houses" ("liberal" and "conservative", well, so be it). Me? I'd want to find some legitimate reason for incarcerating the lot (and most especially the "lobbyists" who create astroturf movements with the specific intent of fomenting violence against legitimately elected government officials).

Sigh...just the Shapero venting. Mea culpa, mea maxima culpa!

(For the record, I've been a Republican for several decades -- we won't say how many, because I don't want to give exact information on HOW old this crotchety old man is -- but I dearly wish we still had Goldwater or his like around today, or William F. Buckley, both of whom I miss).
8.22.2009 9:29pm
ArthurKirkland:

I am beyond disappointed in our lawyers, who have allowed this charlatan in the White House to carry on as if we had no Constitution without so much as a peep. Shameful.


Good point, although a posting glitch apparently delayed display of this message for about six years.
8.22.2009 9:31pm
ArthurKirkland:
Professor Kerr:

I often sense you are the principal factor distinguishing this site from a three-clown circus.

Thank you. You were missed. Nice to have you back.
8.22.2009 9:41pm
Hans Bader:
The U.S. Commission on Civil Rights has questioned the constitutionality of the racial preferences and affirmative-action mandates riddled throughout the health-care "reform" bills backed by Obama.

The Washington Times reported on the Civil Rights Commission's objections earlier.

The racial preferences mandated by ObamaCare seem hard to square with the Supreme Court's decision in Adarand Constructors v. Pena (2000) limiting the reach of federal affirmative action plans, and cases striking down federal racial preferences such as the federal appellate decisions in Rothe Development Corp. v. Department of Defense, 545 F.3d 1023 (Fed. Cir. 2008) and the Western States Paving case.
8.22.2009 9:58pm
SuperSkeptic (mail):
It is quite premature to weigh in on the constitutionality of something not yet coherently constituted. As for the commerce clause jurisprudence, through lopez, morrison, and raich, its pretty clear that the limits are not principally discernable and would likely split the Court and turn on ideological grounds. The substantive due process arguments may be something to keep in mind in order to sway Kennedy's libertarian side against whatever plan emerges. Also, Obama does not wield the will of the people today as FDR did then, it seems, which would certainly influence the degree of deference the Court would show any legislation.
8.22.2009 10:08pm
AF:
Professor Adler,

Rivkin and Casey's argument isn't just not "particularly convincing." It's complete untenable. Purchasing health insurance is an economic activity. Requiring people to purchase health insurance is therefore regulation of an economic activity. Even if an individual's purchase of health insurance is an intrastate economic activity, enacting universal health care has substantial effects on interstate commerce and is therefore clearly consitutional under Wickard and Raich.

Your attempts to distinguish Wickard are distinctions without a difference. Why, for example, would it possibly matter that health care is a service? It isn't the "commodities" clause, it's the commerce clause. Commerce in services is just as much commerce as commerce in goods.
8.22.2009 10:10pm
Eric Muller (www):
It's astonishing to me that the Washington Post published this piece, and no less astonishing to me that people like Jack Balkin and Jonathan Adler are privileging it with careful analysis.
8.22.2009 10:12pm
AF:
its pretty clear that the limits are not principally discernable and would likely split the Court and turn on ideological grounds.

On the contrary, it's pretty clear that no single federal judge at any level will hold that individual mandates violate the Commerce Clause.
8.22.2009 10:13pm
PeteP:
ArthurKirkland - Orin Kerr strives manfully to offset your influence here.
8.22.2009 10:19pm
progressoverpeace (mail):

AF:

Purchasing health insurance is an economic activity. Requiring people to purchase health insurance is therefore regulation of an economic activity.


So ... let me see if I follow your general argument:

Purchasing X is an economic activity. Requiring people to purchase X is therefore regulation of an economic activity.

You can't be serious. This is how nations die, by removing all meaning from law.
8.22.2009 10:28pm
AF:
progressforpeace:

Which do you disagree with -- that purchasing is an economic activity or that requirements are regulations?
8.22.2009 10:38pm
SuperSkeptic (mail):
its pretty clear that the limits are not principally discernable and would likely split the Court and turn on ideological grounds.

On the contrary, it's pretty clear that no single federal judge at any level will hold that individual mandates violate the Commerce Clause.


AF, I agree with you that it may be found that "Even if an individual's purchase of health insurance is an intrastate economic activity, enacting universal health care has substantial effects on interstate commerce and is therefore clearly consitutional under Wickard and Raich" (emphasis added)

But, do you not see that the Court is split in modern commerce clause cases? The modern commerce clause cases evince an ideological divide. I bet you Justice Thomas, who is a "federal judge," would rule against such a holding.
8.22.2009 10:40pm
SuperSkeptic (mail):
*dissent*
8.22.2009 10:42pm
Owen H. (mail):

What if the guidelines for acceptable plans include contraception, abortion, and certain types of end-of-life care? Could the federal government require devout Catholics to purchase such plans for themselves?



Would they also be forced to utilize those particular coverages?

Of a great many odd statements on this, this is one of the odder.
8.22.2009 10:50pm
progressoverpeace (mail):

AF:

Which do you disagree with -- that purchasing is an economic activity or that requirements are regulations?


I disagree with the generality of your argument, in whole. You are saying something akin to the idea that jumping in the air can be regulated by the FAA since it is flying.

You have made a general argument that the federal government can force the purchase of anything, since all purchases are, by defnition, economic activity. I don't see any limits in your reasoning. Do you?

Aside from that, forcing the purchase of something is not "regulating" anything. That is an abuse of the language that simply doesn't fly in my neck of the woods.
8.22.2009 10:51pm
libertarian law grad:
why doesn't congress just tax everyone $3000 a year. for no reason. because they have that power. nobody debates that. oh and then they can pass a tax deduction of $3000 for anyone who enrolls in government sponsored health care.
8.22.2009 10:59pm
Tony Zirkle (mail) (www):
Health care is a state issue under the 9th &10th Amendments. Feds should do few things well.
8.22.2009 11:09pm
AF:
SuperSkeptic,

I agree with you that if the case made it to the Supreme Court, which it would not, Justice Thomas's vote would be in play.

However, since Justice Thomas favors rolling back the past 70 years of Commerce Clause jurisprudence, that isn't much of a defense of Rivkin's and Casey's argument, which is purportedly based on current law.

progressoverpeace --

Laws requiring individuals to purchase goods or services may violate other provisions of the Constitution, but I don't think they could ever violate the Commerce Clause, at least under current doctrine.
8.22.2009 11:22pm
Recovering Law Grad:
progress -

I'm not sure what the "economic silliness" is in saying that gov't services compete with those provided by the private sector. It is a simple fact that the subway competes with cars for consumers' transportation dollars, regardless of whether you think that is wise/constitutional/something that kills nations/etc.

What am I missing here?
8.22.2009 11:22pm
Guest056 (mail):

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist.
The federal government does not have the power to regulate Americans simply because they are there.


This astonishing argument deserves more attention. The mandatory purchase of health insurance is not "a quintessentially economic activity" because such an act is "not even tangenitally related to 'the production, distribution or consumption of commodities'"?

The purchase of an insurance policy that underwrites your access to healthcare isn't related to the distribution or consumption of a commodity? I don't understand what's meant by that.
8.22.2009 11:40pm
progressoverpeace (mail):

Recovering Law Grad:

I'm not sure what the "economic silliness" is in saying that gov't services compete with those provided by the private sector.

Because public sector "companies" run in very different ways than private companies. They are nearly incomparable entities, since the performance of the government controlled company is almost entirely bound to political measures while private companies are bound to fiscal measures, with profit being the greatest single factor. There is no real competition between two companies whose successes are measured with completely different scales.

This was made all the more obvious by The Precedent in his last attempt to justify "the public option". He went to great lengths to try to explain to that college kid in Colorado how the public company would be no different than any other company. Then what was the point of it? It would be, as per The Precedent's transparent lies, just another company ... but somehow, magically, it would offer lower prices (that's the "competition", right?). That doesn't make sense and no one can contort it in any way to make sense. It's embarrassing to have even heard it :)

It is a simple fact that the subway competes with cars for consumers' transportation dollars,

I guess you think the subway competes with bicycles, too? And sneakers?

All public systems are notorious for their mismanagement. That's just how it always has been and how it can be expected to be in the future.

What we are talking about, though, is not the subway (which has the city behind it making the field tilted in the right ways) competing against cars, but a true USGovernment Motors making cars to compete against Ford. That is quite different. In the health care case, the same government is also making all sorts of regulations about the object of commerce. It's just crazy.

regardless of whether you think that is wise/constitutional/something that kills nations/etc.

What am I missing here?

It's clearly unwise. It's un-Constitutional, at the federal level. There is nothing in the US Constitution that stops a state from opening a state company. That's up to them and their Constitutions. The federal government would then be involved in the inter-state commerce of such a state company (not the silly sort of "butterfly flaps its wings in Brazil which brings a storm in Texas" sort of argument we have been subject to for years). At the federal level, it would kill this nation, not so much because of the action (though that would happen, too) but because of the reasoning that allows it.
8.22.2009 11:47pm
Guest056 (mail):
I should have noted that they said "engaged in" not "related to". But that hardly answers my question.
8.22.2009 11:50pm
Recovering Law Grad:
The subway does indeed compete with bicycles, though the extent to which bicycles are a substitute for the subway is lesser than the extent to which cars are a substitute for the subway.

It may be that you don't think the gov't "competes" in the sense that it doesn't react to the profit-seeking imperative in the same way that private companies do. If that is what you mean by "compete," okay. But I would suggest that you're adopting a narrow definition of the term. Again: it's quite clear that gov't services do compete with private ones in that they are an option that consumers can choose or not choose depending on their needs. To me, this seems to be a form of competition.

If the gov't decided to make a gov't car and sell it on a lot next to the GM dealership, that govt't car would indeed by competing with GM.

This seems so clear to me that I fear that I'm not understanding a distinction you're trying to draw.
8.22.2009 11:58pm
Mark N. (www):

I just think that jumping from national security to social issues, with respect to the federal govenrment's powers, is quite a leap. One area falls within the primary tasks of the federal government while the other falls well outside.

For someone who takes an expansive view of the Commander-in-Chief's nearly unlimited power to act unilaterally in the interests of national security, it's hard to see where the boundaries might lie, though. Is the threat of pandemic diseases and the function of uninsured Americans as a disease reservoir and incubator a sufficient national security threat? How about the spread of developing-world parasites and disease among U.S. poor? If you accept the most expansive interpretations of executive power that have been defended, it seems at least plausible that comprehensive measures to reduce the likelihood of a damaging disease pandemic would count as a national-security issue.
8.22.2009 11:58pm
J. Aldridge:
Has court justices ever been smart enough to ask themselves how "regulating commerce" was accomplished in practice? Did it ever strike anyone that imports was regulated through taxes and duties and this is what the constitution talks about?

James Madison said it was “very certain” that the power to regulate commerce among the States “grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government."

Why? Because Congress was prevented from taxing state exports.
8.23.2009 12:11am
Cato The Elder (mail) (www):

For the record, I've been a Republican for several decades

n_shapero,

Did you write that without blushing? I can't imagine that someone railing against "the corporations!" and "the racists!" could.
8.23.2009 12:13am
Secret (mail):
Progress-

It wouldn't kill the nation. It would kill federalism (or at least wound it). I guess sometimes I argue where is the harm in that? If I were to suggest a change to the Constitution, it would be a revision of this entire necessity for protecting "states' rights." It clearly doesn't work and the entire interaction in the modern age between the federal and state levels of governance is wasteful and inefficient.
8.23.2009 12:16am
progressoverpeace (mail):
Recovering Law Grad,

What sets the price for a government run company? This is the point of "competition" and prices are set in private companies by very different considerations than by public companies.

What happened with Fannie and Freddie, which have cost us hundreds of billions of dollars, so far, and might just end up being the main sources of a total monetary collapse? Without Fannie and Freddie's political character (and IMPLICIT federal guarantee) no other sort of entity could have forcibly distorted the valuations of debt as they (in concert with federal regulations) did, then cascading through our system and placing everything at risk.

Mark N,

People can try to argue those lines. I've thought about them quite a bit, myself. But I don't think Orin was looking at it, that way. You'll have to ask him, though. I don't accept those sorts of arguments for standard health insurance legislation, since it is too far of a stretch - though under an emergency situation they would be operative issues. We can argue about what constitutes a requisite emergency. To, essentially, argue for a sort of national quarantine is something that most people wouldn't accept so readily, I don't think.
8.23.2009 12:16am
first history:
Can it be argued that under the power to " provide for the....general welfare of the United States" (Art. 1 Sec. 1), Congress has the power to enact health insurance reform? In Helvering v. Davis (1937), The Supreme Court affirmed the consitutionality of the Social Securty Act. While discussing Title II of SSA (old age benefits), and after summarizing various studies, the Court said:


The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors.


In discussing a challenge under the 10th Amendment the Court said:


The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. . . . The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.

When such a contention comes here, we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. (citations omitted).

. . . Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.
8.23.2009 12:18am
MarkField (mail):

If you accept the most expansive interpretations of executive power that have been defended, it seems at least plausible that comprehensive measures to reduce the likelihood of a damaging disease pandemic would count as a national-security issue.


Remember that the national highway system was justified as a national security issue.
8.23.2009 12:23am
progressoverpeace (mail):

Secret:

It wouldn't kill the nation. It would kill federalism (or at least wound it).

Well, we disagree on the first part, and I would consider the death of federalism to be the death of the US - as it would be the rise of the American SuperState, clearly. That is exactly what our nation was built not to be.
I guess sometimes I argue where is the harm in that? If I were to suggest a change to the Constitution,

You'd have to rename it. It would no longer be a "federal constitution", but a "national constitution".
it would be a revision of this entire necessity for protecting "states' rights." It clearly doesn't work and the entire interaction in the modern age between the federal and state levels of governance is wasteful and inefficient.

Federal and state governments are assigned different tasks. It is the encroachment of the federal government in the states' spheres that has caused much of the waste and inefficiencies. There will always be some, as government can't help but be wasteful and inefficient, but nowadays we have so many areas of redundancy due to federal encroachment that it is worse by orders of magnitude.
8.23.2009 12:25am
progressoverpeace (mail):

first history:
Can it be argued that under the power to " provide for the....general welfare of the United States" (Art. 1 Sec. 1), Congress has the power to enact health insurance reform?


Madison puts that to rest pretty quickly:


With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

-- James Madison
8.23.2009 12:27am
first history:
Can it be argued that under the power to " provide for the....general welfare of the United States" (Art. 1 Sec. 1),

Should be Art. 1 Sec. 8
8.23.2009 12:30am
smitty1e:
Look, if they want to destroy the states, these mental gymnasts can set about doing it.
Maybe it would make more sense to have them start with the states, and argue positively what constitutes 'state commerce', just to see if they haven't distorted their arguments.
8.23.2009 12:32am
progressoverpeace (mail):
first history,

I should have read your whole post before responding. Sorry. Just throw me in with the Madison group and against the reasoning of the living document in that decision. If someone thinks that Congress needs a certain power, say to open a health insurance company, then the proper method is to amend the Constitution and add that detailed power to Congress. I don't see why anyone would consider this to be an unreasonable path, considering the impact of the desired power. And, people are arguing that they've been trying to get this national health insurance done for decades, so they've had the time to amend the Constitution in order to grant such power.

But we all know why they wouldn't even try that ... for the same reason that they tried to slide all of this legislation by before anyone got a chance to even look at it.
8.23.2009 12:39am
matt b (mail):
i think the 4th, 9th and 10th amendment read together preclude any health insurance mandate.
8.23.2009 12:45am
first history:
PoP:

Madison has lost to Hamilton and history; you may think he put it to rest but the Supreme Court in Helvering v. Davis (quoted above) didn't think so. See also U.S. v. BUTLER, 297 U.S. 1 (1936)and Justice Story's Commentaries on the Constitution of the United States (1833) (here).

From Hamilton's Report on Manufactures (1791):


.....The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

....It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. ....

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.
8.23.2009 12:52am
first history:
PoP:

I should have checked to see your reponse before my last post. We all want the world to be our ideal; unfortunately it is not.
8.23.2009 12:55am
J. Aldridge:
first history says, "Madison has lost to Hamilton and history."

No. Hamilton ended up placed in the corner to suck his thumb during the convention because he was too radical. Hamilton was correct to argue the federal power is almost unlimited when it comes to the general welfare invested in the common defense.
8.23.2009 1:17am
GV:

Without Fannie and Freddie's political character (and IMPLICIT federal guarantee) no other sort of entity could have forcibly distorted the valuations of debt as they (in concert with federal regulations) did, then cascading through our system and placing everything at risk.

You do realize that there were private companies that competed with Fannie and Freddie, some of whom (many of whom) ended up making substantially more bad bets?
8.23.2009 1:21am
John Moore (www):

For someone who takes an expansive view of the Commander-in-Chief's nearly unlimited power to act unilaterally in the interests of national security, it's hard to see where the boundaries might lie, though. Is the threat of pandemic diseases and the function of uninsured Americans as a disease reservoir and incubator a sufficient national security threat? How about the spread of developing-world parasites and disease among U.S. poor? If you accept the most expansive interpretations of executive power that have been defended, it seems at least plausible that comprehensive measures to reduce the likelihood of a damaging disease pandemic would count as a national-security issue.

The government has very strong powers with regard to public health - powers most Americans are unfamiliar with - for example, forced quarantine. Trying to expand that to a mandate towards buying health insurance, however, is a ludicrous stretch.

It's better to adhere to the ludicrous stretch already in precedent - the Commerce clause misinterpretation now enshrined in law and culture - because that one will win.
8.23.2009 1:23am
Cornellian (mail):
Purchasing insurance isn't commerce? Good luck with that argument.
8.23.2009 1:24am
Allan Walstad (mail):
If the feds can Constitutionally impose a socialist retirement program and a socialist medical program for the elderly, then it can impose Obamacare. And it can do damn near anything else it wants to us.

First History quotes from a Supreme Court ruling that should go down in history alongside Pearl Harbor:

...states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors.

Damned rascals. It was one of the benefits of federalism, part of the very genius of the Constitution, that states would have to compete for citizens and business activity. State governments that became too rapacious toward their more successful, prudent, and productive citizens would lose them.
8.23.2009 1:55am
PlugInMonster:
The Constitution was never intended for the unwashed masses. It was a document created by the elite Founding Fathers to make them feel good about themselves and say how superior they were to the British. Ask the average American to cite what the Bill of Rights are. Most might get 2-3 and most don't even care. Remember issue polls never even cite Constitutionality as a priority. It's always:

* Economy
* Health-care
* real-estate
* national security(actually this is a Constitutional duty)

Most people have never cared about the Constitution and never will. Let's stop pretending.
8.23.2009 2:20am
ReaderY:
It appears health care is a commodity. Americans are being regulated, not because they exist, but because:

1. Their consumption of health care affects the commodity price of health care
2. Their lack of consumption of health care affects the commodity price of health care.

Congress can prohibit Americans can be prohibited from producing their own version of a commodity because such production affects the version of the commodity transported in interstate commerce, even when Congress prohibits interstate transportation of the commodity. If health care is a commodity, it would appear Congress could indeed prohibit Americans from taking care of their own health where doing so would impede interstate commerce from doing the same, and require purchase of the interstate commercial version.
8.23.2009 2:23am
Akon:
ReaderY,

1. My dog's consumption of dog food affect the commodity price of dog food.
2. My dog's lack of consumption of dog food affects the commodity price of dog food.

Can Congress make me buy dog food?
8.23.2009 2:43am
David Tomlin (mail):

Of course buying insurance is commerce.

It follows that not buying insurance, is not commerce.
8.23.2009 3:27am
Edward A. Hoffman (mail):
Could someone who claims the government either can't or doesn't compete with the private sector explain the existence of FedEx and UPS alongside the postal service?
8.23.2009 3:58am
J. Aldridge:
Of course buying insurance is commerce

Buying an insurance policy is engaging in trade, errr "exchange of commodities"?
[N]o state be at liberty to impose duties on any goods, wares, or merchandise, imported, by land or by water, from any other state, but may altogether prohibit the importation from any state of any particular species or description of goods, wares, or merchandise, of which the importation is at the same time prohibited from all other places whatsoever.” [Madison’s resolution for empowering Congress to regulate trade, November 30, 1785]
8.23.2009 4:29am
n_shapero (mail):

Cato the Elder said (in response to my comment that "For the record, I've been a Republican for several decades"):

Did you write that without blushing? I can't imagine that someone railing against "the corporations!" and "the racists!" could.

I could do it easily; I have been on the "inside" of a major corporation (my time on the "Dark Side" as a manager) and corporations are NOT moral -- nor are most of the executives running them in my experience. Believing themselves to be above the law, they behave just as you'd expect them too -- like monsters.

There is a balance that must be struck, between the freedoms of the individual (or the corporation) and the needs of society -- that is what we have laws for.

I also hate racists for the simple reason that I have been (in years past) called a "Christ killer", "Jew boy", and "kike" (as well as having to run from a lynch mob in Texas). People who hate (and are willing to kill) someone simply because of their religion or their skin color are monsters -- and a SANE society must restrict their freedom to act ("your right to move your fist ends where my nose begins", and it is the place of the law and society to decide where my nose "begins").
8.23.2009 4:33am
n_shapero (mail):

John Moore wrote:
The government has very strong powers with regard to public health - powers most Americans are unfamiliar with - for example, forced quarantine.

Just out of curiousity, do you have a reference for the limits (if any) to restrictions that might be imposed under full quarantine regulations (say, in the event of something equivalent to a smallpox outbreak)?
8.23.2009 4:38am
first history:
Could someone who claims the government either can't or doesn't compete with the private sector explain the existence of FedEx and UPS alongside the postal service?

I disagree with the premise of your question. It is FedEx and UPS that compete with the government, not the other way around. Until 1970, the Postal Service (then known as the Post Office Department, a cabinet department) had a monopoly over mail and package delivery in the US. The Postal Service Reorganization Act of 1970 disestablished the Post Office Department and allowed companies like FedEx (founded in 1971) and UPS to skim off the lucrative package delivery business while the USPS is forced to maintain universal delivery of all kinds of mail to Americans. As a consequence, the USPS has huge operating deficits (currently $7 billion this year) due to overstaffing, union contracts, congressional interference, and other factors. At the same time the USPS is unable to take actions like a private corporation, such as reducing the number of locations (post offices), service levels, functional centralization, etc. As an aside, the USPS has a contract with FedEx for worldwide delivery.

FedEx and UPS don't have to worry about any of this. If a hub isn't working out, they close it (as did DHL last year). People may complain, but Congress can't force them to keep it open. But heaven forbid if the neighborhood post office closes--holy hell rains down from Capitol Hill if any counter is closed.
8.23.2009 5:29am
Edward A. Hoffman (mail):
first history wrote:
Could someone who claims the government either can't or doesn't compete with the private sector explain the existence of FedEx and UPS alongside the postal service?
I disagree with the premise of your question. It is FedEx and UPS that compete with the government, not the other way around.
Huh? If A is in competition with B, then B is also in competition with A. You're obviously right that the post office was there first, but that's beside the point. IBM was manufacturing computers before anybody else, but it was still in competition with the later arrivals -- who out-competed it to the point where it no longer makes PCs at all.

You are also right about the problems the post office faces. Here again, though, that is beside the point. That the post office doesn't compete well against FedEx and UPS does not change the fact that it is competing against them. And the fact that FedEx and UPS continue to thrive undercuts the argument that the private sector will be driven out of an industry if it has to compete against a government-run entity.
8.23.2009 5:43am
Brian K (mail):
The Postal Service Reorganization Act of 1970 disestablished the Post Office Department and allowed companies like FedEx (founded in 1971) and UPS to skim off the lucrative package delivery business while the USPS is forced to maintain universal delivery of all kinds of mail to Americans.

and

As a consequence, the USPS has huge operating deficits (currently $7 billion this year) due to overstaffing, union contracts, congressional interference, and other factors.

and yet, somehow, you don't connect these two thoughts. this is just like state and federal run healthcare systems as currently run. the government handles all the necessary but unprofitable stuff (e.g. letter delivery, elderly and/or less healthy patients) and the private sector gets all of the profitable stuff (e.g. "lucrative" package delivery and relatively healthy patients).
8.23.2009 5:58am
Brett Bellmore:

to skim off the lucrative package delivery business while the USPS is forced to maintain universal delivery of all kinds of mail to Americans.


Aw, poor, poor government monopoly. How about we fix that, by letting package delivery services deliver first class mail, too, on the condition that they deliver it, (Through intermediaries if necessary.) to anywhere the postal service does?
8.23.2009 7:18am
Angus:
The U.S. Commission on Civil Rights has questioned the constitutionality of the racial preferences and affirmative-action mandates riddled throughout the health-care "reform" bills backed by Obama.

Conservatives keep citing the U.S. Commission on Civil Rights as if it means anything. Currently the 8-person commission is made up of 6 partisan conservatives and two partisan liberals, and you can predict which way the 6-2 votes will go on pretty much every issue before it. The whole commission is a joke.
8.23.2009 7:19am
davod (mail):
Ending the tax subsidy for employer provided health care!

Isn't this a business expense?
8.23.2009 7:52am
Ariel:
My favorite argument is the pro-choice one. We've been told that a woman has the right to make choices about her medical decisions with regards to her body. If this is true for one medical operation, why shouldn't it be true for other operations? Or for the insurance used to buy such operations?
8.23.2009 8:49am
jrose:
Can it be argued that under the power to " provide for the....general welfare of the United States" (Art. 1 Sec. 8), Congress has the power to enact health insurance reform

As funded through taxes, Rivkin and Casey conceded this one (see their last paragraph).

You have made a general argument that the federal government can force the purchase of anything, since all purchases are, by defnition, economic activity. I don't see any limits in your reasoning. Do you?

Whether a reguirement of a purchase is always econimic activity is an unanswered question. But, that is a good point about the possibility of an unlimited power. However in this case, no such analysis is needed. Adler had it correct:

Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme
8.23.2009 9:26am
ShelbyC:
If there's a right to privacy that prevents them from regulating abotion, contraception, or sodomy, it's hard to see how they can force you to buy health insurance, but I've never understood the right to privacy anyway.
8.23.2009 9:57am
geokstr (mail):

Angus:
Conservatives keep citing the U.S. Commission on Civil Rights as if it means anything. Currently the 8-person commission is made up of 6 partisan conservatives and two partisan liberals, and you can predict which way the 6-2 votes will go on pretty much every issue before it. The whole commission is a joke.

I assume, Angus, that this allows us to treat as a "joke" any commission staffed by partisan leftists, say, the new Orwellian "Diversity Committee" formed by Obama's FCC, where leftwingers outnumber conservatives like, oh, say, 30 to NONE. Then, when the edicts come down that try to choke off conservative talkers, it will be OK for us to laugh at them and quote you as the authority?

By your logic, we ought to be able to tell the current Congress and administration to go piss off.
8.23.2009 10:15am
geokstr (mail):
Congress may reach otherwise unregulable conduct as part of an overREarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme...

Fixed that typo.
8.23.2009 10:19am
jukeboxgrad (mail):
pop:

Health care is a state issue, not a federal one - as is true for all social issues. I'm not sure why this is a difficult concept for anyone.


It was a difficult concept for the GOP when they were grandstanding about Terri Schiavo's health care. Likewise for when the GOP makes social issues like gay marriage into a federal matter.

In the Schiavo matter, most of the GOP lined up behind Bush and Frist and forgot about federalism. And most of the bloggers here did not speak out, except for one (link, link, link). Aside from a few exceptions like that, the GOP seems to be packed with fair-weather federalists.

All public systems are notorious for their mismanagement.


That's what Republicans say. And then when they are put in charge of managing public systems they try really hard to make the statement come true. Which I guess is the next best thing to drowning government in a bathtub.

Are there no lawyers around who have the intellectual integrity to call The Precedent what he is - a moron who knows nothing about the Constitution?


Why are you holding back? It's worse than that. He's also "ineligible to be President" (link, link).

================
aldridge:

first history says, "Madison has lost to Hamilton and history."

No.


Feel free to ignore the SC cases that were cited (link, link). Other relevant cases can be found via here.

PlugInMonster is hinting that maybe it's OK to ignore the Constitution, and you're implying that it's OK to ignore the Supreme Court. The whole concept of law and order is awfully quaint, isn't it?

================
walstad:

If the feds can Constitutionally impose a socialist retirement program and a socialist medical program for the elderly, then it can impose Obamacare.


You must think that the federal government runs Medicare. But I know you're wrong, because I've heard people say stuff like this:

I don't want government-run health care. I don't want socialized medicine. And don't touch my Medicare.


Anyway, I hope you can convince the GOP to take the position that Medicare and Social Security are unconstitutional and must be abolished.

================
hoffman:

Could someone who claims the government either can't or doesn't compete with the private sector explain the existence of FedEx and UPS alongside the postal service?


Good point. Another example: education. And transportation has been mentioned. Obviously that brings to mind public transportation, but a less obvious example is the existence of private roads and bridges.

================
bellmore:

Aw, poor, poor government monopoly. How about we fix that, by letting package delivery services deliver first class mail, too


UPS and Fedex are indeed free to deliver first class mail, as long as they don't use the term "First Class Mail" (it's a registered trademark of USPS), and as long as they don't put it in your mailbox. So what? Those are meaningless restrictions. If UPS/Fedex really wanted to provide a $0.44 package delivery service (where "package" is defined as 'under 1 oz'), there's nothing stopping them. Too bad they're used to rates that are at least 14 times higher.

================
gv:

there were private companies that competed with Fannie and Freddie, some of whom (many of whom) ended up making substantially more bad bets


True. More details here. It seems that a lot of people are confused about this. A lot of people also seem to not realize that it was not Bill Clinton or Barney Frank who said this:

… we have a problem because fewer than half of the Hispanics and fewer than half of the African Americans own their home. That’s a home ownership gap, a gap we have to work together to close … Fannie Mae and Freddie Mac have committed to provide more money for lenders, they have committed to help meet the shortage of capital for minority homebuyers … You don’t have to have a lousy home for first time homebuyers. You put your mind to it, the low income homebuyer can have just as nice a house as anybody else.


================
shelby:

it's hard to see how they can force you to buy health insurance


The basic problem is this: what happens when an uninsured person ends up in the hospital? Say, because they were in a car accident (maybe in a situation involving an uninsured motorist). Who pays for it? Answer: the rest of us, indirectly.

Aside from letting uninsured accident victims bleed to death in the street, how do you propose solving this problem?

================
geo:

the new Orwellian "Diversity Committee" formed by Obama's FCC, where leftwingers outnumber conservatives like, oh, say, 30 to NONE


It's not "new" and it wasn't "formed by Obama's FCC." According to the wacky people at Fox News, it "was established in 2003 when Republicans controlled the FCC." And according to a member, "the membership is not substantially different than the membership that was composed under the Republican FCC."

The Republican administration with created this group staffed it with all "leftwingers?" Really? The number of conservatives they picked is "NONE?" Since you are wrong about "new" and "formed by Obama's FCC," hopefully you can provide proof for these other 'facts' you're presenting.
8.23.2009 10:53am
OrinKerr:
JukeBoxGrad, it's great to have you back. (Or at least I don't think I've seen you in the comment threads in a while.)
8.23.2009 11:30am
J. Aldridge:
JukeBoxGrad, I am not aware of any "SC cases" on the subject during the framing of the constitution. Those came later and were never part of the framing process.
8.23.2009 11:58am
jukeboxgrad (mail):
Orin, thank you for the kind words, as always. As I've said before, the respect is mutual. I was glad to see your absence end.

I don't think I've seen you in the comment threads in a while.


As I explained to Leo here, the whole time I've commented here (about four years) I've always taken long breaks. Sometimes this leads to certain people celebrating prematurely (example).
8.23.2009 11:59am
progressoverpeace (mail):

jukeboxgrad:

Health care is a state issue, not a federal one - as is true for all social issues. I'm not sure why this is a difficult concept for anyone.

It was a difficult concept for the GOP when they were grandstanding about Terri Schiavo's health care.

In the Schiavo matter, most of the GOP lined up behind Bush and Frist and forgot about federalism. And most of the bloggers here did not speak out, except for one (link, link, link). Aside from a few exceptions like that, the GOP seems to be packed with fair-weather federalists.

Er ... explain to me why this has anything to do with my position? It's nice that you think yourself able to just assign any position you like to anyone, but your disingenuous lying is really not appreciated. If you can find any time, at all, that I had taken this position, then you should paste it. Of course, you can't, because you are just making sh#t up and assigning it to me. If you had a shred of integrity you would apologize for this. But you won't, because you are a liar and you enjoy it.

P.S. I happened to have been on the other side of the Schiavo issue, moron. But don't let that stop you.

Likewise for when the GOP makes social issues like gay marriage into a federal matter.

Likewise, find links to where I have tried to make gay marriage a federal issue, other than federal benefits. You can't. Stop lying.

If you want to talk about what your slow mind considers to be GOP positions (and you lie about those, too) don't do them as responses to me.


All public systems are notorious for their mismanagement.

That's what Republicans say. And then when they are put in charge of managing public systems they try really hard to make the statement come true. Which I guess is the next best thing to drowning government in a bathtub.

Is that an argument that public systems are not notorious for their mismanagement? What is wrong with you?

Are there no lawyers around who have the intellectual integrity to call The Precedent what he is - a moron who knows nothing about the Constitution?

Why are you holding back? It's worse than that. He's also "ineligible to be President" (link, link).

Oh gee. You really hurt me with that. Yes, I'm one of the lunatic fringe who understands that the Founders did not include dual citizens in the class of natural born citizens, as they didn't even recognize American dual-citizens. You really hurt my credibility with this. You have delivered me such an intellectual death blow that I will be shamed for the rest of my life. You are a master debater, indeed.

All in all, very substantive responses, juketard. About what I've come to expect from you.
8.23.2009 12:11pm
Cornellian (mail):
Yes, I'm one of the lunatic fringe who understands that the Founders did not include dual citizens in the class of natural born citizens, as they didn't even recognize American dual-citizens.

I marvel at your ability to "understand" things for which you have no evidence.
8.23.2009 12:40pm
first history:
Aw, poor, poor government monopoly. How about we fix that, by letting package delivery services deliver first class mail, too, on the condition that they deliver it, (Through intermediaries if necessary.) to anywhere the postal service does?

Actually, my solution would be to abolish the USPS as a government corporation and sell it to shareholders. Allow it to be a real business, and like it any other it should be able to cut service, consolidate locations, be free of congressional interference, etc. The government could remain a majority shareholder or not own any of it (preferably the latter.) Delivery of all types of mail would be allowed by all carriers.

In fact, "socialist" Europe is far ahead of the US in privatizing postal services, which has led to the development of competitive markets in some or all services. The most radical change has been in Germany, where Deutsche Post is a completely private company and one of the world's largest logistics companies (they own DHL and Airborne Express.)
8.23.2009 12:42pm
progressoverpeace (mail):

Cornellian:

I marvel at your ability to "understand" things for which you have no evidence.



John Jay, in his July 25, 1787 letter to George Washington:

Permit me to hint, whether it would not be wise &seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.

Oh yeah, Cornellian, that really sounds like a guy who thinks that someone who holds citizenship in 56 other countries is eligible for the Presidency. Silly me. But, maybe you think Jay only meant non-citizens when he referred to "Foreigners"? Heh.
8.23.2009 12:48pm
Chico's Bail Bonds (mail):
great comment
8.23.2009 12:51pm
J. Aldridge:
Cornellian said:
Yes, I'm one of the lunatic fringe who understands that the Founders did not include dual citizens in the class of natural born citizens, as they didn't even recognize American dual-citizens.

I marvel at your ability to "understand" things for which you have no evidence.

Since 1791 foreigners have been required under naturalization law to renounce all allegiance and fidelity to every foreign prince and government and pledge their sole allegiance to this one both during their filing of intention to become a citizen and their final oath years later. A lot of states went on to adopt laws banning aliens from citizenship from birth. NY is a good example and Connecticut, which law said: "All persons born in this State … except aliens, paupers, and fugitives from justice or service, are and shall be deemed to be citizens of this State, owing it allegiance and entitled to receive its protection."
8.23.2009 1:08pm
J. Aldridge:
^^^ When I say NY I mean post Lynch v. Clarke where the state overturned that ruling of 1844 by statute a few years later.
8.23.2009 1:20pm
Bob Goodman (mail) (www):
No matter how overarching the regulatory scheme, I don't see how forcing someone to buy into the regulated industry can be rightly considered a regulation of that industry. If someone isn't buying insurance, that bit of commerce doesn't exist and hence can't be said to be regulable. Regulating commerce can't include putting a mandate on someone who wasn't involved in that commerce.

No matter, all this is easily surmounted by increasing the personal income tax and giving a tax credit, of the same amount as the increase, against insurance premiums.
8.23.2009 2:00pm
ArthurKirkland:
It seemed inappropriate, at first read, for our friend progressoverpeace to call jukeboxgrad a "moron," but perhaps the use is apt, because it does not necessarily constitute a claim of intellectual superiority. Morons outrank idiots and imbeciles on the standard classification chart. From an idiot or an imbecile, therefore, "moron" constitutes a compliment of sorts, an admission that the moron is smarter than the speaker.

His use of "moron" with respect to President Obama, which seems inexplicable at first, also might be explained by the point that from the perspective of an idiot or imbecile, everyone higher on the chart looks like a moron.

Viewed from these perspectives, progressoverpeace's use of the term "moron" is not so ridiculous as the sentient reader might first apprehend.

It is not often one can defend progressoverpeace, but I am pleased to have had this opportunity to do so.
8.23.2009 2:04pm
Guest056 (mail):
The FCC's Diversity Advisory Committee is designed to investigate and promote diversity ownership of certain relevant media and telecom entities. It's scope doesn't include the content of the broadcasts, just ownership of the facilities. AT&T, Qwest, and ABC are some of the companies whose representatives have served on this committee. Since it concerns diversity of ownership, giving these large industry stakeholders a voice in the committee makes it far less exclusive than some suggest. Its current chairman is a bush appointee was an FCC chairman from 1981-85.

Media companies and telecom facilities use public resources to broadcast their content. Is it inappropriate to staff a committee meant to understand the demographics behind the use of these public resources -- and to advise on means by which the actual use of these resources could be made commesurate with the apparent access to them? This strikes me as uncontroversial.
8.23.2009 2:04pm
Joseph Slater (mail):
As an employee of a public university, I'm still waiting for someone to explain with some real specific facts the horrors / unconstitutionality of public institutions which compete, economically, with private institutions.
8.23.2009 2:07pm
jrose:
No matter how overarching the regulatory scheme, I don't see how forcing someone to buy into the regulated industry can be rightly considered a regulation of that industry. If someone isn't buying insurance, that bit of commerce doesn't exist and hence can't be said to be regulable. Regulating commerce can't include putting a mandate on someone who wasn't involved in that commerce.

Yes it can according to Lopez. The requirement is only that the mandate to buy insurance is necessary and proper to the success of the overarching regulatory scheme. It makes no difference whether the mandate regulates or involves commerce.
8.23.2009 2:31pm
progressoverpeace (mail):

ArthurKirkland:

His use of "moron" with respect to President Obama, which seems inexplicable at first,

Only inexplicable to those whose understanding of mathematics is as poor as The Precedent's. Do you understand how incredibly moronic it is to utter something as nonsensical as "profits and earnings ratios"? Not only does it show that one has not a clue what PE-ratios are - not only does it demonstrate that one doesn't understand that profits and earnings are the same thing - but it goes much deeper and clearly demonstrates that the idiot utterer has no clue that factors in a ratio are NEVER described by "and", which is something that the normal 8th grader is well aware of. This little tidbit, by itself, is enough for anyone to reasonably conclude that The Precedent didn't crack 450 on the math section of his SATs. But, you don't understand this, for obvious reasons.

Since you don't seem to understand all of this complicated math, let me make it easier for you, what The Precedent said is comparable to him describing speeds in terms of "minutes and hours". What would you think if someone told you that he drove at "65 minutes and hours" on the highway? Would you call him a moron? And, don't even try to think that The Precedent would have meant to use "an", because the fool has never managed to master the use of the indefinite article. He never says "an", but uses a long "a", instead, as in "aaaay illegal" or "aaaay enormous". Yep. Lots of smarts there, too.

I could go on giving example after example of The Precedent's clear stupidity. Why don't you give me just one or two examples of his intelligence (that you seem to claim for him)? That shouldn't be too hard, Arthur.


Joseph Slater:
As an employee of a public university, I'm still waiting for someone to explain with some real specific facts the horrors / unconstitutionality of public institutions which compete, economically, with private institutions.


Oy. First of all, the Constitutionality refers to the federal government. Unless you are an employee of the only federal university in the US (that has been kept a great secret from the rest of us) then your lack of understanding of the application of the Constitution to our governance, and its different levels, is clear.

Secondly, even private universities are not profit-oriented entities. Where do you think Harvard gets most of its money from? Tuition? Hardly. Look at endowments and then try to figure that into the functioning of all of our universities before you try making comparisons to companies that live or die on profits they make from selling their actual services and products. No one is dying and leaving $100 million to Aetna. Do you understand the difference, here? Further, the cost of education is greatly skewed by the government's involvement in school loans and the like.
8.23.2009 2:41pm
progressoverpeace (mail):
Joseph,

The military academies are not included in my above comment, since they are run by totally different rules than all others.
8.23.2009 2:45pm
progressoverpeace (mail):

ArthurKirkland:

His use of "moron" with respect to President Obama, which seems inexplicable at first,


Or maybe you thought that a gift of a boxed set of DVD's to the British PM was smart diplomacy? Or bowing to the Saudi prince and then claiming that he didn't? Or was it his question about phrases that exist in Austrian? Or was it his claim that 10000 people died in a Kansas tornado, when the number was really 12? Or was it his claim that doctors love chopping off feet because they get from $30,000 to $50,000 for it (though the truth is less than $1000)? Or was it his claim that the auto was invented in the US? And on and on and on ...

But, being keen on the law, you must have been impressed with his utterly inaccurate statement that the Constitution is "a charter of negative liberties". Forget anything about the fact that Constitution is the architectural plan for our federal government. That's minor stuff not even worth considering. That's the sort of mistake that makes you hold his intellect in high regard, huh?

Yes. Inexplicable, indeed.
8.23.2009 2:53pm
Mark Jones (mail):

I could do it easily; I have been on the "inside" of a major corporation (my time on the "Dark Side" as a manager) and corporations are NOT moral -- nor are most of the executives running them in my experience. Believing themselves to be above the law, they behave just as you'd expect them too -- like monsters.


Funny--that's how I've seen our elected leaders representatives for decades now. They believe themselves to be above the law, and as they write most of the laws they often see to it that they are, in fact, above the law.

They're monsters, and they act like it.

Not surprising, then, that I don't want them handling my health care decisions.
8.23.2009 3:03pm
OrinKerr:
Progressoverpeace,

Three questions for you.

1) Who do you think is smarter: George W. Bush or Barack Obama?

2) Who do you think is smarter: You or Barack Obama?

3) Who do you think is smarter: You or George W. Bush?

I look forward to your answers, as I am interested to try to understand your perspective.
8.23.2009 3:03pm
progressoverpeace (mail):
Orin, how about you answer your questions first, as you probably have some opinion about each, and then I shall follow?

And you can let me know if you have any particular problems with my assessments of The Precedent. Do you think I am wrong on the points I make about "profit and earnings ratios", or any of the other mistakes I noted (not even the tip of the iceberg, BTW)?
8.23.2009 3:07pm
OrinKerr:
Progressoverpeace, here are my views:

1) Barack Obama is smarter than George W. Bush.
2) Barack Obama is smarter than you.
3) George W. Bush is smarter than you.

As for your other requests, you first need to answer the three questions above before it's my turn again.
8.23.2009 3:15pm
progressoverpeace (mail):

OrinKerr:
Progressoverpeace, here are my views:

1) Barack Obama is smarter than George W. Bush.
2) Barack Obama is smarter than you.
3) George W. Bush is smarter than you.


LOL.

Here's my ranking, from the smartest, down: Me, Bush, Obama

With both Bush and Obama being quite a distance from myself. Bush, however, was an excellent decision-maker and had a decent connection to our underlying principles, at least through his first term. I can guarantee you that I would trust neither Bush nor The Precedent to take any academic test in my stead.

Your turn.
8.23.2009 3:24pm
OrinKerr:
Progressoverpeace
I can guarantee you that I would trust neither Bush nor The Precedent to take any academic test in my stead.
I'm curious, what are your academic credentials? I assume from your comments that you have no formal training in law or constitutional studies.
8.23.2009 3:31pm
progressoverpeace (mail):
OrinKerr:

I'm curious, what are your academic credentials?

That's not fair, Orin. It's your turn.

But ... I come from mathematics and left my Ph.D. to trade options. What's the relevance?


I assume from your comments that you have no formal training in law or constitutional studies.


Now, that was a bit gratuitous, was it not? I never pretended to be trained in law (and I've often mentioned that I'm not) but I don't see why you felt the need to add that, as my answer to your original question would have covered it. Right?

Anyway, it's your turn to address the questions that you said you would.
8.23.2009 3:47pm
Guest056 (mail):
Progressoverpeace,

One narrow question: why do you refer to Obama as "The Precedent"? I'm assuming you know the correct spelling of the word president, and are seeking to comment on the current president's personality -- but are you implying that he sees himself as entitled to set entirely new precedents and therefore to also disregard prior precedents, or perhaps (with even more pointed irony) do you mean that he simply has no respect for the idea of precedents, and doesn't view himself as obligated to be consistent with even his own prior actions? Further, are you seeking to comment on precedents in the sense of law in particular, or in the more expansive sense -- i.e, there's no precedent for a President who puts mustard on his hamburger.

I'm asking because it seems to be pretty easy to determine where you're coming from except on this idiosyncrasy.
8.23.2009 3:50pm
progressoverpeace (mail):

Guest056:

One narrow question: why do you refer to Obama as "The Precedent"?


Because that is what he was elected to be, a precedent - the first black President. He had no other skills, talents, or accomplishments that anyone could point to in support of him and his supporters always focused in on the fact that they wanted him precisely because he would be just such a precedent (as they could not name a single other reason to back him or name any actual accomplishment or talent of his). So, that's what he was elected to be and that's what I consider him to be, The Precedent.
8.23.2009 3:57pm
geokstr (mail):

JBG:

geo:
the new Orwellian "Diversity Committee" formed by Obama's FCC, where leftwingers outnumber conservatives like, oh, say, 30 to NONE

It's not "new" and it wasn't "formed by Obama's FCC." According to the wacky people at Fox News, it "was established in 2003 when Republicans controlled the FCC." And according to a member, "the membership is not substantially different than the membership that was composed under the Republican FCC."

The Republican administration with created this group staffed it with all "leftwingers?" Really? The number of conservatives they picked is "NONE?" Since you are wrong about "new" and "formed by Obama's FCC," hopefully you can provide proof for these other 'facts' you're presenting.

Well, JBG, funny that conservative blogs took a look at the list of members of this committee and didn't come to the same conclusion as this unnamed "member" you cite:
FCC Announces May 7 'Diversity Committee' Meeting - Behold a New 'Fairness' Doctrine


"...made up of a laundry list of left-wing grievance groups, with a smattering of radio and television companies included to break up the monotony. Not a single conservative organization is taking part in this Commission - more than a dozen Leftist groups are."

Pardon me for not knowing that there was such a committee under Bush, but apparently it was totally uncontroversial. I imagine I would have heard of it if it had been packed with conservatives under Bush, and headed by a known advocate of "diversity" to be imposed on the Main Stream Media dominated by liberals.

So now that we know that you couldn't get straight, or at least be straight about, the packing of this committee by leftists, perhaps we should have very little faith in your credibility on other matters.

How about you and I make a bet right now that this committee you say has not changed under Obama becomes a hell of lot more intrusive in the radio business, basically recommending a lot of things that eventually would lead to the effective reimposition of the concept of the "Fairness Doctrine" without Congress having to do anything, and in the relatively near future too? Things like annual license renewals dependent on whether stations have enough "local content", determined by local committees made up of "community organizations" packed with totally objective ACORN members, or one of their other 100 or so affiliates.

And please don't bother to tell me that the radio waves are dominated by right wingers, because all I have to say to that is "so what"? Your team tried it and bombed, not because the vast right wing conspiracy suppressed them, but because they sucked at it.

The left has got all the rest of the media outside Fox slobbering all over Obama's shoes, and wants to make sure we have as few sources of information that conservatives can trust.

And that was not even the larger point I was trying to make in my response to Angus. He says you can't trust any group made up of a majority of Republicans, and I merely used this committee as an illustration to ask if it now OK to dismiss any group with a majority of Democrats on it.
8.23.2009 4:17pm
Angus:
I'm just amazed that people are taking progressoverpeace so seriously. He does this same "The Precedent" and "dual citizens can't be President" shtick on conservative websites, along with the same John Jay quote that does not address dual citizenship or define natural born in any way.
8.23.2009 4:23pm
Daniel Chapman (mail):
I won't miss the end of open comments on this blog...
8.23.2009 4:23pm
Angus:
And that was not even the larger point I was trying to make in my response to Angus. He says you can't trust any group made up of a majority of Republicans, and I merely used this committee as an illustration to ask if it now OK to dismiss any group with a majority of Democrats on it.
You can feel free to consider the FCC Advisory Diversity Committe a joke. I do, too. I find most of what the FCC does to be a joke. Although if the goal of the committee is diversity in terms of race/ethnicity, it is not too surprising to find mostly minority groups on the panel.
8.23.2009 4:44pm
Joseph Slater (mail):
Progressoverpeace:

Nothing in your response to me constituted an explanation of why it is either unconstitutional or even a bad idea to have public and private entities compete. Although I appreciate you backtracking and noting that the federal government does run some schools, your claim that those schools are run by "completely different rules" also does not constitute an explanation.

To make it simpler, how about you point me to the part of the constitution that bars federal entities from competing, economically, with private entities?
8.23.2009 4:49pm
ArthurKirkland:
Please forgive me, Orin Kerr.

I intended a fleeting bit of pointed sport with our eccentric friend, and the consequence is that you are jousting in quicksand.

I will try to make amends, when next in D.C., by delivering a ration of excellent beer to your office.
8.23.2009 5:49pm
Guest056 (mail):
Geokstr:

Please see my post. The current chairmen of the evidently controversial committee was appointed by Bush and served as an FCC chairman between 1981-85. The "smattering" of media companies actually represent major stakeholders in the industries at hand -- and the purpose of the commitee concerns matters of diversity in ownership, not content diversity in terms of idealogy and partisanship. So having these major stakeholders present in fact gives voice to both minority ownership advocates and traditional conglomerates, who have (and can represent) their own distinct interests.

This is essential to remember, as none of the invective directed toward the committee takes into account its composition relative to its purpose. The committee doesn't even address issues of content, just ownership. And since the ownership of telecom facilities is materially related to the allocation of public resources, is a body of inquiry and advice about the underlying demographics so out of line? Please see my post above. This is a public committee assembled to address, on an advisory basis, the concerns of actual citizens regarding ownership access to their public resources. Obviously this kind of thing can go to far -- but that's unlikely in a purely advisory committee. Frankly, I think a hostility to such committees can also go too far. Are you unaware that private citizens and interest groups petition the government to address these issues, and dismissing their concerns may have its own draconian implications?

Progressoverpeace,

Thank you. I thought his race might be relevant to your choice of words, but honestly wanted to give you more credit than that. You've essentially said that because he's black (and, yes, because has no accomplishments to his credit -- which I categorically dismiss) he can't even be called a president. This is a neat trick. The whole point of his race, in terms of his supporters, is that a black man is now president. But you've counterfactually asserted that he has no single accomplishment to his name and then refused to use the actual title of office in referring to him, instead replacing with an admittedly racially-motivated joke moniker. So in your view, no, a black man cannot be called simply Mr. President. You have to change the name once you take the race into account.
8.23.2009 6:09pm
Joan in Juneau (mail):
POP and all... I don't blame the last 2 yrs of the Bush Presidency on him. I do blame him for The Patriot Act though. I did not vote for the current office holder but decided to give him a chance to prove himself to me as I have done with all others before him. He has not done anything to instill confidence yet. I don't give a whit over the intelligence of either man... it is not IQ but what you do with it that matters. I do believe that Bush cared more for the American people than the current one does who seems to put himself ahead of anyone or anything else.

With all of that said, I would like to see us return to the question of whether Obamacare is Unconstitutional or not. JJ
8.23.2009 6:37pm
Allan Walstad (mail):
Jukeboxgrad: I too have heard folks say things like "I don't want government-run health care. I don't want socialized medicine. And don't touch my Medicare." Yep. Kids (from Art Linkletter's day) sure do say the darnedest things.

Anyway, I hope you can convince the GOP to take the position that Medicare and Social Security are unconstitutional and must be abolished.

The GOP and Dems can take a flying leap off a cliff arm-in-arm, as far as I'm concerned. Until that happens, if the Repubs could just get control of one house of Congress it would give us some needed gridlock.
8.23.2009 6:48pm
Bob Goodman (mail) (www):
So starting from a situation in which there is no interstate commerce in insurance (by law), Congress can make a law which legalizes it, and, because the scheme of regulation is such as to attempt to insure everybody, also makes it mandatory to buy insurance because that's necessary to make the scheme work? Isn't there some circularity problem there? It's like saying the statute has to say what it does in order to say what it does.
8.23.2009 8:52pm
jrose:
So starting from a situation in which there is no interstate commerce in insurance (by law), Congress can make a law which legalizes it, and, because the scheme of regulation is such as to attempt to insure everybody, also makes it mandatory to buy insurance because that's necessary to make the scheme work? Isn't there some circularity problem there? It's like saying the statute has to say what it does in order to say what it does.

I couldn't parse this comment.
8.23.2009 10:08pm
David M. Nieporent (www):
UPS and Fedex are indeed free to deliver first class mail, as long as they don't use the term "First Class Mail" (it's a registered trademark of USPS), and as long as they don't put it in your mailbox. So what? Those are meaningless restrictions. If UPS/Fedex really wanted to provide a $0.44 package delivery service (where "package" is defined as 'under 1 oz'), there's nothing stopping them. Too bad they're used to rates that are at least 14 times higher.
Incorrect. It is illegal for UPS and Fedex to do so, whether or not they "put it in your mailbox." (They do not charge rates "14 times higher" because evil capitalists like to charge lots of money or are inefficient, but because that's the only way to make it legal.) Exceptions were ultimately made for parcels, and for express mail. But regular mail must be sent through the post office, rather than any delivery service. (The post office actually used to audit businesses to see whether they were sending things by private carrier that were supposed to go by mail. ) In addition to it being illegal for the carrier, the sender is also required to put postage on it -- IOW, to pay the USPS -- regardless of how much one pays to the carrier.
8.23.2009 10:25pm
David M. Nieporent (www):
I too have heard folks say things like "I don't want government-run health care. I don't want socialized medicine. And don't touch my Medicare."
I don't believe you. Every one of these comments always seems to be secondhand.

To the extent that these quotes are not simply urban legends, it sounds like a misinterpretation; people are not saying "Keep government away from Medicare," but simply, "Don't have the government mess with Medicare; I like it the way it is."
8.23.2009 10:27pm
ckirksey (mail):
Everyone who works is required to pay into SS whether you want to or not and it is constitutional. You are entitled to some benefits if you become disabled and there is a small token life insurance benefit. So SS is just not retirememnt benefits. So if there was some mandated national health insurance requirement it could be implemented in the same manner as SS.
8.23.2009 10:56pm
Allan Walstad (mail):


I too have heard folks say things like "I don't want government-run health care. I don't want socialized medicine. And don't touch my Medicare."

I don't believe you. Every one of these comments always seems to be secondhand.

To the extent that these quotes are not simply urban legends, it sounds like a misinterpretation; people are not saying "Keep government away from Medicare," but simply, "Don't have the government mess with Medicare; I like it the way it is."

David--I'm taking "don't touch my Medicare" as equivalent to "Don't have the government mess with Medicare; I like it the way it is." (One wonders how people will like it after it's bankrupt.)

Still--you may be right, my cynicism level right now is high enough that I might just be assuming I've heard such dissonant statements as above. Can't give you a quote. My bad.
8.24.2009 12:03am
Joan in Juneau (mail):
Medicare needs an overhaul too. It is too large and cumbersome. It needs to be streamlined to become more efficient and to put the money where it belongs.
8.24.2009 12:09am
first history:

UPS and Fedex are indeed free to deliver first class mail, as long as they don't use the term "First Class Mail" (it's a registered trademark of USPS), and as long as they don't put it in your mailbox. ....

Incorrect. It is illegal for UPS and Fedex to do so, whether or not they "put it in your mailbox."



The Private Express Statutes (18 U.S.C. § 1693–1696 and 39 U.S.C. § 601–606, 39 Code of Federal Regulations Parts 310 and 320)forbid delivery of letter mail by private organizations, except under certain circumstances. The USPS allows private companies to deliver letters labled "Extremely Urgent," which is why FedEx and UPS letters carry that label. The PES only cover letters, and not parcels or packages. There are also a variety of other small exceptions to the ban on private delivery of letters.
8.24.2009 12:13am
John Moore (www):
Guest056

This is a public committee assembled to address, on an advisory basis, the concerns of actual citizens regarding ownership access to their public resources. Obviously this kind of thing can go to far -- but that's unlikely in a purely advisory committee. Frankly, I think a hostility to such committees can also go too far.


This is a public committee to address the racial and ethnic makeup of the ownership of media outlets.

And, of course, that purpose presumes that the ethnicity of an owner determines his/her competency to run a station - which is racist.

What happened to the post-racial society?
8.24.2009 12:21am
ReaderY:

My favorite argument is the pro-choice one. We've been told that a woman has the right to make choices about her medical decisions with regards to her body. If this is true for one medical operation, why shouldn't it be true for other operations? Or for the insurance used to buy such operations?


Whoever's been telling you this, it hasn't been the courts. Roe v. Wade explicitly rejected the proposition that a woman has a general right to control her body, citing Buck v. Bell among other cases as support. Roe based abortion on completely different grounds. The rejection has subsequently been reaffirmed e.g. Glucksberg v. Washington. It's simply not true.
8.24.2009 1:19am
Guest056 (mail):

And, of course, that purpose presumes that the ethnicity of an owner determines his/her competency to run a station - which is racist.


I don't see that as a presupposition, because no ethnicities are presumed to be more or less competent to run a station as a necessary foundation for such a committee. Quite the opposite: all ethnicities are presumed competent, so any disparity is investigated and advised upon. I won't argue that there is not a facially racial element to this -- but of course, if there is a facially racial element to the demographics underlying station ownership, then the core racial issue exists prior to the committee.

Additionally, Mr. Moore, I'd like you to consider that telecom companies rely on spectrum that's allocated via auction by the US government. The FCC itself holds the auctions that award the usage of telecom infrastructure and oversees the licensing. If minorities feel that there are social issues preventing them from actually being awarded frequencies in these auctions, and they approach the auction holder, it's just -- I dare say -- good business to form a committee designed to respond to those petitions. As I said above, if the federal government ignored concerns directly related to the outcome of its own auctions, that would have troubling implications about the responsiveness of a government to its own citizens.

The last chairman of the FCC, Michael Copps, said that the diversity of the nation isn't reflected in the ownership of our media and teleco facilities. This leads me to believe that the committee was formed in response to just such actual concerns.
8.24.2009 2:54am
jukeboxgrad (mail):
aldridge:

I am not aware of any "SC cases" on the subject during the framing of the constitution. Those came later and were never part of the framing process.


I am not aware of any reason you would remind us that there weren't "any 'SC cases' on the subject during the framing of the constitution."

Earlier, you took issue with the following statement:

Madison has lost to Hamilton and history


"History" includes SC cases which ruled against the Madisonian view that you are defending. I can't imagine why you would ignore that history unless you think it's OK to ignore the Supreme Court. That's why I accused you of implying that it's OK to ignore the Supreme Court.

If you don't think it's OK to ignore the Supreme Court, then I don't understand why you are seemingly taking the position that "history" came to an end "during the framing of the constitution."

=================
pop:

I happened to have been on the other side of the Schiavo issue


Where did I say what side you were on? Nowhere. The statement I made here was explicitly about the GOP, not about you. So your defensive reaction to a non-attack seems like a case of protesting too much.

Aside from that, a person who describes the Schiavo case as "just a little dust-up" is not likely to be seen as a sincere federalist, even if they adopt that posture from time to time.

Is that an argument that public systems are not notorious for their mismanagement?


No. It's an argument that Republicans like to claim that public systems are notorious for their mismanagement even while making notoriously outstanding contributions to the mismanagement of public systems.

And given remarks about drowning government in a bathtub, that mismanagement seems to perhaps even have some method to its madness. That is, from a certain perspective it's not mismanagement at all. Mission accomplished.

I also notice that Republicans are notorious for claiming that public systems are notorious for their mismanagement even while making no effort to show that mismanagement in public systems is worse than mismanagement in private systems.

Yes, I'm one of the lunatic fringe who understands that the Founders did not include dual citizens in the class of natural born citizens


Someone who has commented on this thread has said recently that he "can only think [of] one" birther at VC. Maybe he'd like to know that it's time for him to double his count. I didn't realize you were trying to keep it a secret.

a guy who thinks that someone who holds citizenship in 56 other countries is eligible for the Presidency


A day or two ago the number you liked was 47. If you stick with one number, it will be easier for you to paste your Hot Air material here.

maybe you think Jay only meant non-citizens when he referred to "Foreigners"?


Maybe you're giving Jay's letter some unwarranted weight? For example, "at that point Jay had no way of knowing that the Convention would ultimately make the President the commander-in-chief." And there is indeed a historical theory that Jay was thinking of one particular 'non-citizen:' Baron von Stuben.

I could go on giving example after example of The Precedent's clear stupidity.


Except that you would have to come up with hundreds of examples if you wanted to rival the precedent.

Why don't you give me just one or two examples of his [Obama's] intelligence


Maybe you should take your question to the airheaded leftist who said this:

Barack Obama is smart enough and writes well enough to be a tenured law professor at any law school in the country.


But maybe that's not very impressive, compared with having a PhD in math.

being keen on the law, you must have been impressed with his utterly inaccurate statement that the Constitution is "a charter of negative liberties". Forget anything about the fact that Constitution is the architectural plan for our federal government. That's minor stuff not even worth considering. That's the sort of mistake that makes you hold his intellect in high regard, huh?


By "his," do you mean Judge Posner? Because in 1982 he said "the Constitution is a charter of negative liberties." Nevertheless, I think some people (conservatives, even) "hold his [Posner's] intellect in high regard."

Oddly enough, it's a profoundly conservative statement. If you want to know the context of what Obama said, and what he meant, see here.

=================
first:

my solution would be to abolish the USPS as a government corporation … Allow it to be a real business, and like it any other it should be able to cut service, consolidate locations, be free of congressional interference, etc.


Good idea. An irony: one of the biggest changes would be to drastically curtail service in rural areas, which tend to be disproportionately GOP. The party which wants less government, except when it doesn't.

=================
guest:

So in your [pop] view, no, a black man cannot be called simply Mr. President


Another reason pop refuses to call Obama 'president' is that pop believes Obama is not eligible to be president. pop has said this ("[Obama is] ineligible to be President") as if it's a proven fact. Most birthers raise the question, but don't claim they know the answer for a fact. So pop is a birther among birthers. Quite a distinction.

=================
geo:

funny that conservative blogs took a look at the list of members of this committee and didn't come to the same conclusion as this unnamed "member" you cite


Funny that you think some baloney you read on "conservative blogs" would be seen by anyone other than you as proof of something. Let's review. You said this:

the new Orwellian "Diversity Committee" formed by Obama's FCC, where leftwingers outnumber conservatives like, oh, say, 30 to NONE


Aside from the fact that you're plain wrong about "new" and "formed by Obama's FCC," I challenged you to show proof regarding the "30 to NONE" part. You responded by citing an article at Newbusters. Here are a few major problems with your 'proof:'

A) Newsbusters is a rag. They are run by Brent Bozell, a proven liar.

B) A bad source can be trusted if they back their claims with proof. But the article you cited made a bunch of claims (including the claims we're discussing) without bothering to make even a pretense of showing proof. Why should their unsupported claims be seen as something other than worthless?

C) Perhaps most importantly, the article doesn't even make the claim you made. The closest it comes is to say this: "Not a single conservative organization is taking part in this Commission - more than a dozen Leftist groups are." Even if we take this claim at face value, how does it prove that the number of conservatives in the group is "NONE?" Take Qwest, for example. Melissa Newman is a member of the Committee, and works for Qwest. Assuming that Qwest is not a "conservative organization," how do you know whether or not Melissa Newman is a conservative? Do you happen to know that Qwest has a policy which forbids the hiring of conservatives?

Rodney Hood is a director of the National Credit Union Administration. Hood was appointed to his position by George W. Bush. What is your basis for claiming that Hood is a 'leftwinger,' and not a conservative?

The group's members are listed here. Your source said "more than a dozen Leftist groups are" represented. Can you tell us which of the groups is "Leftist?" Many of the "groups" are minority broadcasting companies. Is every minority person automatically a "Leftist?" Even the ones placed in the group by Bush? The GOP has demonstrated its ability to locate conservative minorities and promote them. Why should anyone assume that Bush didn't staff this Committee using that standard GOP approach?

When we strip away all the drivel, the story is this: Bush created a Committee to advise the FCC how to increase minority ownership of broadcast properties (and this is not exactly surprising, since Bush also made a big deal about increasing minority ownership of residential properties). Under Bush, the Committee had a bunch of meetings. Under Obama, they are continuing to have meetings. That's really shocking, right? Only to the easily shocked.

didn't come to the same conclusion as this unnamed "member" you cite


The fact that I didn't put his name in my comment doesn't make him "unnamed." Fox did indeed name him. Nice job demonstrating that you can't even be bothered to review the facts as reported by Fox. And he's a member, not a "member." His name appears on the official list of members.

Pardon me for not knowing that there was such a committee under Bush


Pardon me for not pardoning you for not lifting a finger to look beyond Newsbusters for your facts. Even Fox was honest enough to report that the Committee was founded by Bush, not Obama. But Newsbusters was not. Nevertheless, you rely on Newsbusters, unapologetically, and are expecting us to view them as a credible source. That tells us everything we need to know about your own credibility.

I imagine I would have heard of it if it had been packed with conservatives under Bush, and headed by a known advocate of "diversity" to be imposed on the Main Stream Media dominated by liberals.


What you "imagine" is divorced from reality. Because you get your news from Newsbusters, and Newsbusters is divorced from reality. By "known advocate of 'diversity,' " you mean Rivera. As Guest mentioned, Rivera was appointed to the Committee by Bush. Fox reported that "Rivera … has been a member of the diversity committee since its inception in 2003 and was appointed its chairman by Republicans in 2006." So it was the Bush administration which decided that the group should be "headed by a known advocate of 'diversity.' " (How odd, given that the purpose of the group is to promote diversity.) You seem to have managed to not notice this. Which is not surprising, since Newsbusters obfuscated these key facts.

we know that you couldn't get straight, or at least be straight about, the packing of this committee by leftists


We're still waiting for you to demonstrate "the packing of this committee by leftists." Or that there are "leftists" on the committee who were appointed by Obama and not Bush.

I merely used this committee as an illustration to ask if it now OK to dismiss any group with a majority of Democrats on it


We're still waiting for you to demonstrate how you know this group has "a majority of Democrats." Are minorities, even ones appointed by a GOP administration, presumptively Democrats? Then I guess Clarence Thomas and Alberto Gonzales are Democrats.

=================
moore:

that purpose presumes that the ethnicity of an owner determines his/her competency to run a station - which is racist.


Then I guess GWB is a racist, since his administration established this committee.

=================
walstad:

if the Repubs could just get control of one house of Congress it would give us some needed gridlock


Suddenly I hear various people singing the glories of divided government. Were you delivering the same message in 2004? Somehow I doubt it.

=================
nieporent:

It is illegal for UPS and Fedex to do so, whether or not they "put it in your mailbox."


It's true that USPS has a monopoly on delivery of non-urgent letters, but UPS/Fedex get around this easily by putting the words "Extremely Urgent" on their envelopes. As first history explained. And it's true that USPS has caught and fined mailers for abusing this, but the abuse is still very easy to accomplish.

They do not charge rates "14 times higher" because evil capitalists like to charge lots of money or are inefficient, but because that's the only way to make it legal.


They are free to charge whatever they want as long as the item is marked "Urgent." So the fact that they are charging more than $0.44 is their own choice.

Exceptions were ultimately made for parcels, and for express mail. But regular mail must be sent through the post office, rather than any delivery service.


If I mark it "urgent," it's no longer "regular mail."

I too have heard folks say things like "I don't want government-run health care. I don't want socialized medicine. And don't touch my Medicare."


I don't believe you. Every one of these comments always seems to be secondhand.


Arthur Laffer said this:

If you like the Post Office and the Department of Motor Vehicles and you think they're run well, just wait till you see Medicare, Medicaid, and health care done by the government.


Ponnuru's attempt to make sense of that makes no sense to me. Krugman points out that Laffer knew what he was doing.

people are not saying "Keep government away from Medicare"


Except that Laffer said that Medicare isn't currently "done by the government." Even though it is.
8.24.2009 3:04am
J. Aldridge:
jukeboxgrad, in case you misunderstand, I meant Madison had not lost out to Hamilton during the convention, that it was Hamilton who had plainly lost.
8.24.2009 10:01am
Seamus (mail):

In Bailey, the Court held that Congress could not use the taxing power to regulate behavior that would otherwise lie beyond the scope of the federal government's other enumerated powers.



Maybe Bailey has never been explicitly overruled, but wasn't the entire point of the Harrison Narcotics Act and the Marijuana Tax Act to "use [Congress's] taxing power to regulate behavior that would otherwise lie beyond the scope of the federal government's other enumerated powers," in those days when it was actually believed that "interstate commerce" covered something less than "everything"?
8.24.2009 11:09am
Joseph Slater (mail):
Nice to have you back, Jukebox Grad!
8.24.2009 11:35am
Allan Walstad (mail):

Were you delivering the same message in 2004? Somehow I doubt it.

Yes, goddammit.
8.24.2009 12:00pm
first history:
jukebox grad sez:


(Quoting first history): my solution would be to abolish the USPS as a government corporation … Allow it to be a real business, and like it any other it should be able to cut service, consolidate locations, be free of congressional interference, etc.

Good idea. An irony: one of the biggest changes would be to drastically curtail service in rural areas, which tend to be disproportionately GOP. The party which wants less government, except when it doesn't.


My point exactly. I was thinking of places like, say, Alaska.
8.24.2009 12:15pm
Tracy Johnson (www):
The thing that came to mind is this has become a cause and effect of the U.S. moving to a service based economy instead of a production based economy. Less goods are being produced and sold across state lines relative to services.
8.24.2009 12:27pm
David M. Nieporent (www):
It's true that USPS has a monopoly on delivery of non-urgent letters, but UPS/Fedex get around this easily by putting the words "Extremely Urgent" on their envelopes. As first history explained. And it's true that USPS has caught and fined mailers for abusing this, but the abuse is still very easy to accomplish.
You know, potential clients approach me on a fairly regular basis, where they want to sue someone, and after I quiz them about their situation, I tell them, "You don't have a cause of action here, because you did X, Y, Z..." And then it's not uncommon for them to say, "Well, how is [proposed defendant] going to prove that I did those things? He'll never be able to do that." And I have to explain that the issue is not whether you can lie and get away with something, but whether you legitimately have a case.

Of course FedEx and UPS and their customers can break the law by lying about what they're shipping, and it's hard for the USPS to catch them. But the law is not that they're allowed to deliver any letter marked "extremely urgent." The law is that they can only deliver actually-urgent letters. That is, they actually have to deliver them urgently -- either same day or overnight, depending.

(Moreover, your claim is wrong because one test the USPS uses for whether the letters are actually urgent is the price charged to ship them. One can't make money delivering things overnight for $0.44, so if one is charging $0.44, that means it's not really urgent.)
8.24.2009 2:49pm
David M. Nieporent (www):
Arthur Laffer said this:
If you like the Post Office and the Department of Motor Vehicles and you think they're run well, just wait till you see Medicare, Medicaid, and health care done by the government.
Ponnuru's attempt to make sense of that makes no sense to me.
That's okay; lots of things you say make no sense to me. And unlike Laffer, you have the luxury of reading what you write before hitting send, while he was speaking extemporaneously, making it likely that it just came out awkwardly.
8.24.2009 2:52pm
Officious Intermeddler:
Rivken's and Casey's argument is, I think, a non-starter under Lopez and Raich. There's a straight-face argument that an individual mandate is necessary and proper to the overall regulatory scheme, and that's really all you need in Rational Basis Land.

The real issue here is that the Commerce Clause, which was intended and originally understood as a robust constraint on federal authority insofar as it was one of a finite set of enumerated powers, has been folded, spindled, and mutilated to the point where it may as well read, "Congress can do anything it wants, and the states and the citizenry should just lean back and try to enjoy it." When Congress can regulate purely intrastate activity on the grounds that it might-maybe-possibly-somehow affect interstate commerce, we are no longer dealing with the Constitution that the people ratified; rather, we're dealing with something out of Plato's Republic, with black-robed political appointees providing the mythology necessary to justify the rule of our Congressional philosopher-kings.
8.24.2009 3:42pm
jukeboxgrad (mail):
aldridge:

I meant Madison had not lost out to Hamilton during the convention


You said it was wrong to claim that "Madison has lost to Hamilton and history." You did not say it was wrong to claim that 'Madison lost out to Hamilton during the convention.' It would be better if you had said what you meant, instead of conveniently glossing over the "and history" part.

===================
Joseph, thanks for the kind words.

===================
walstad:

Yes, goddammit.


I believe you, and I apologize for making an incorrect assumption.

===================
first:

My point exactly. I was thinking of places like, say, Alaska.


Makes sense. I figure USPS could save lots of money if they just deposit all the AK mail in a big pile between the Cheechakos and the Sourdoughs.

====================
nieporent:

the issue is not whether you can lie and get away with something, but whether you legitimately have a case


Sometimes the issue is "whether you legitimately have a case," and sometimes the issue is noticing that certain laws are routinely broken. Examples are speeding and downloading copyrighted materials.

But the law is not that they're allowed to deliver any letter marked "extremely urgent." The law is that they can only deliver actually-urgent letters. That is, they actually have to deliver them urgently -- either same day or overnight, depending.


Wrong. Actually delivering them urgently is one way to satisfy the law, but it's not the only way. According to the Private Express Statutes:

It will be conclusively presumed that a letter is extremely urgent and is covered by the suspension if the amount paid for private carriage of the letter is at least $3 or twice the applicable U.S. postage for First-Class Mail (including Priority Mail), whichever is greater.


Priority Mail is defined as all first class mail over 13 ounces. So Priority Mail rates aren't relevant unless the envelope weighs more than 13 ounces.

So Fedex is free to deliver a small or large envelope weighing up to four ounces as long as they charge three bucks. (Four ounces is the relevant threshold because USPS charges more than $1.50 if the weight exceeds that amount.) And the envelope doesn't even have to be marked "extremely urgent." It only has to be marked "Private Carriage Authorized by Postal Regulations." And if the cost test is met ($3), there is no requirement "to deliver them urgently," i.e., according to any particular schedule.

As far as I can tell, Fedex charges at least $6. They could cut their minimum price in half without breaking the law. So why don't they?

your claim is wrong because one test the USPS uses for whether the letters are actually urgent is the price charged to ship them. One can't make money delivering things overnight for $0.44, so if one is charging $0.44, that means it's not really urgent


Your claim is wrong because you don't understand that the cost test and the time limits for delivery (also called loss-of-value test) are separately enough to satisfy the statute. So if Fedex charges $3 to deliver the four ounce letter, "it will be conclusively presumed that a letter is extremely urgent and is covered by the suspension" even if Fedex spends a month or two delivering the letter.

Does that sound dumb? It does, but don't blame me, because I didn't write the statute.

That's okay; lots of things you say make no sense to me.


I guess that's your oblique way of admitting that you're not in a position to explain how Ponnuru's statement makes sense.

unlike Laffer, you have the luxury of reading what you write before hitting send


Ponnuru also had "the luxury of reading what [he wrote] before hitting send." Nevertheless, he wrote something that didn't make sense. Can't you come up with some kind of excuse for him?

he [Laffer] was speaking extemporaneously, making it likely that it just came out awkwardly


He has had plenty of time to issue a follow-up statement to clarify what he said. As far as I know, he has not done so. This tends to create the impression that he did what he did for a reason. As Krugman explained.
8.24.2009 5:52pm
jukeboxgrad (mail):
progressoverpeace:

Don't forget, The Precedent knows so little about our Constitution that he characterized it as "a charter of negative liberties"? Well, that's not at all what it si … The idiot characterized it as sucha charter, though …


More progressoverpeace:

being keen on the law, you must have been impressed with his utterly inaccurate statement that the Constitution is "a charter of negative liberties". … That's the sort of mistake that makes you hold his intellect in high regard, huh?


It's worth noticing who else might be an "idiot" who "knows so little about our Constitution" that they would be found to have "characterized it as 'a charter of negative liberties.' " Who else would make such an "utterly inaccurate statement?" We already know that Judge Richard Posner is such an "idiot."After all, he said this:

The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.


But it gets worse, because Posner is not the only famous conservative judge who "knows so little about our Constitution:"

Rehnquist articulates a conception of the Constitution as a charter of negative liberties protecting individuals against government in his opinion of the Court in DeShaney v. Winnebago County.


But we should forgive Rehnquist, because he was duped by Posner:

Posner's judicial contribution is already apparent. … Perhaps most important has been Posner's view on the "charter of negative liberties" … In a series of cases he crafted the principle that the state has an affirmative obligation to protect a citizen only when it assumes control or responsibility of that citizen. When the High Court affirmed his decision in the famous Deshaney case a few years ago, Chief Justice Rehnquist followed Posner's lead step by step.


VC sure is lucky to have a math PhD/birther who can warn us about the "utterly inaccurate statement" that Posner and Rehnquist made, which indicates they know "so little about our Constitution."
8.24.2009 5:53pm
progressoverpeace (mail):
juke,

You're really working overtime on the whole "charter of negative liberties" angle (ignoring all of the other idiocies your beloved Precedent has bestowed on the public).

You can keep quoting whomever you want to find that phrase but that doesn't make it correct. The Constitution is not a charter of negative liberties, it is the detailed architecter of our federal government. And, even if someone takes poetic license and discusses only the Bill of Rights when they address "The Constitution", it is still incorrect, unless you think that the right to a speedy trial, or to a jury trial, are descriptions of negative liberties. If we go further into the amendments then we are just confronted with more examples along these lines, as in the due process (unless you think that it is a negative due process that is referred to) and equal protection.

But the fact still remains that the Constitution's main purpose was to build our federal government in such a way that it would sustain our nation, be limited in its power, and not become a threat to the citizenry - not because of the amendments, but due to the way power was defined, split up among the arms, and placed in contention with each other.

I also liked the way you framed this:


Where did I say what side you were on? Nowhere. The statement I made here was explicitly about the GOP, not about you. So your defensive reaction to a non-attack seems like a case of protesting too much.

Which is about what I figured you'd try to say. You then went on to continue your response TO ME, just a few lines down, with:
No. It's an argument that Republicans like to claim that public systems are notorious for their mismanagement even while making notoriously outstanding contributions to the mismanagement of public systems.
[ ... ]
I also notice that Republicans are notorious for claiming that public systems are notorious for their mismanagement even while making no effort to show that mismanagement in public systems is worse than mismanagement in private systems.

Now, you had just tried to explain to me that when you talk about the GOP (and I assume that Republicans fall into the same category) you are not addressing me, so why continue to respond to me with blatherings about Republicans? You aren't talking to me, as you stated above, so what's the point? That's just how you debate, though.
8.24.2009 7:37pm
John Moore (www):


Additionally, Mr. Moore, I'd like you to consider that telecom companies rely on spectrum that's allocated via auction by the US government. The FCC itself holds the auctions that award the usage of telecom infrastructure and oversees the licensing. If minorities feel that there are social issues preventing them from actually being awarded frequencies in these auctions, and they approach the auction holder, it's just -- I dare say -- good business to form a committee designed to respond to those petitions. As I said above, if the federal government ignored concerns directly related to the outcome of its own auctions, that would have troubling implications about the responsiveness of a government to its own citizens.

The last chairman of the FCC, Michael Copps, said that the diversity of the nation isn't reflected in the ownership of our media and teleco facilities. This leads me to believe that the committee was formed in response to just such actual concerns.


Wrong on all counts. The idea that the ownership should have some proportionality to ethnic percentages is pernicious and racist. The idea that the government should act to achieve such ends is outrageous.

Just because the government auctions off the spectrum should give it no authority to use racial or ethnic quotas (which is what "responding to such actual concerns" ALWAYS leads to).

If we are to become a post-racial society, then we should quit demanding any sort of outcomes based on race. Period.
8.24.2009 9:11pm
David M. Nieporent (www):
Ponnuru also had "the luxury of reading what [he wrote] before hitting send." Nevertheless, he wrote something that didn't make sense. Can't you come up with some kind of excuse for him?
Sure: what Ponnuru said made perfect sense. If you didn't understand it, I think you need to clean out your metaphorical ears. It's what Laffer said that didn't make much sense -- if one interprets it nonsensically.
He has had plenty of time to issue a follow-up statement to clarify what he said.
Why on earth would he want to do that? It was a throwaway comment on an ephemeral news channel segment. Other than a couple of moobat liberals like Krugman, nobody is still thinking about it.
As far as I know, he has not done so. This tends to create the impression that he did what he did for a reason.
No, it doesn't. It tends to create the impression that most people don't sit around obsessing over things the way you do.
As Krugman explained.
I'd go with the term "blathered" rather than "explained," as "explained" implies that there was a factual basis for what he said, whereas there was none for what Krugman said.

And someone might want to point out to Krugman that the post office is deeply in debt, and Americans continue to use it less and less. But if he thinks "We can make healthcare like the post office" is a winning message, I encourage him to proclaim that loudly.
8.24.2009 9:12pm
David M. Nieporent (www):
As far as I can tell, Fedex charges at least $6. They could cut their minimum price in half without breaking the law. So why don't they?
Because the carrier pigeons go on strike for more birdseed. IOW, because it costs more than that to provide overnight service.

Your claim is wrong because you don't understand that the cost test and the time limits for delivery (also called loss-of-value test) are separately enough to satisfy the statute. So if Fedex charges $3 to deliver the four ounce letter, "it will be conclusively presumed that a letter is extremely urgent and is covered by the suspension" even if Fedex spends a month or two delivering the letter.

Does that sound dumb? It does, but don't blame me, because I didn't write the statute.
Since I know you care very deeply about accuracy, I know that when you said statute, you actually meant to say regulation, and you're going to rush to correct yourself. And it's not "dumb" because the point is to prevent competition with the post office. Since nobody would pay $3 to a private company for something to get to its destination a month later, the post office doesn't need to worry about that possibility.
8.24.2009 9:24pm
Guest056 (mail):
Mr. Moore,

I have to disagree with you entirely. While forced racial outcomes would are an unhealthy attempt to remedy a possible problem, you are the person here speaking as an absolutist. You make no allowance for the possible connection between real ownership rates and access to ownership, and as such your posture woud prevent the government from advising on how to close these gaps in access to ownership. If citizens mount a credible case that such access disparities exist, and that the ownership disparity is caused by social inequalities, then it is frankly abominable to take things as far as you would take them. You inveigh against an advisory committee purely because of "where such things always lead." Has it every occured to you that foreclosing entire lines of inquiry -- not even of action, but of inquiry -- leads dark places.

If there is a racial cause to these disparities, you're not interested. And if someone else is interested, he's a racist. And if the government addresses his concerns with a body of inquiry, the government is going to inevitably enact a racist quota policy. All this, and your deepest concern is moving us into a post-racial society.
8.24.2009 11:42pm
jukeboxgrad (mail):
pop:

You're really working overtime on the whole "charter of negative liberties" angle


I'm giving the point some attention, because it perfectly illustrates everything any of us would ever need to know about you: that you are willing to claim with a straight face that you understand the Constitution better than Posner and Rehnquist. Even though you never went to law school. Next up, I hope you'll tell us about your experience walking on the moon.

ignoring all of the other idiocies your beloved Precedent has bestowed on the public


I'm not ignoring them. I simply pointed out that Obama would have to produce verbal gaffes at a very rapid rate if he ever hopes to catch up to the remarkable precedent established by your beloved President.

The Constitution is not a charter of negative liberties


I realize you think you can show up here and directly contradict Posner and Rehnquist while expecting to be taken seriously. And it's not just that you're contradicting them; it's that you've accused them of making an "utterly inaccurate statement," a statement which reveals they "know[s] so little about our Constitution." A statement which should make us question their "intellect." And your background which prepared you to announce your superiority to them? You've studied math and traded options.

But in a way it makes perfect sense; if you're going to dig a hole, you might as well make it a big one.

By the way, when you insulted Obama for making the statement, did you know that he was simply repeating something that had already been said by Posner and Rehnquist? I have a feeling you just didn't know; I notice there are a bunch of wingnut blogs who are apparently unaware that Obama did not originate the statement. I think you carried the meme here from one of those places.

I think this accounts for how you have ended up stuck in the wacky position of essentially claiming that Obama, Posner and Rehnquist all share the same deeply ignorant misunderstanding about the Constitution. And that they therefore all need correction from you.

You aren't talking to me, as you stated above, so what's the point?


One of my statements that you cited ("Republicans are notorious for claiming that public systems are notorious for their mismanagement even while making no effort to show that mismanagement in public systems is worse than mismanagement in private systems") was indeed talking to you, because it was a reference to a claim you made. Other statements I made were regarding the GOP in general, and not about you. This distinction shouldn't be that hard to grasp, especially for someone with your elevated intellect.

===================
nieporent:

because it costs more than that to provide overnight service


I didn't ask you why Fedex charges more than $6 for overnight service. I asked you why they charge a minimum of $6 (roughly) for any delivery, even when it's not overnight.

What you said before is this:

They do not charge rates "14 times higher" because evil capitalists like to charge lots of money or are inefficient, but because that's the only way to make it legal


Trouble is, they don't need to charge $6 "to make it legal." They only need to charge $3. Therefore your claim "that's the only way to make it legal" is false.

I know that when you said statute, you actually meant to say regulation


The document I cited is called "Understanding the Private Express Statutes." Everyone who cares about the distinction already understands that the statutes are implemented via regulations. I'm using the word "statute" to be consistent with the document I'm citing, and for simplicity. And because a violation of the regulation ultimately amounts to a violation of the statute.

Sometimes details like this are important, and sometimes they're just pedantic. Thanks for giving us a nice example of the latter.

Since nobody would pay $3 to a private company for something to get to its destination a month later, the post office doesn't need to worry about that possibility.


Except that nobody is seriously suggesting that Fedex would wait a month to deliver the letter. I introduced the hypothetical about delivery that takes a month or two to point out another false claim you made: that Fedex would be obligated to deliver the item quickly in order to satisfy the statute. You fail to understand (and still fail to acknowledge that you fail to understand) that Fedex can satisfy the statute by simply charging $3. And then whether it takes an hour or a day or a week or a month or a year to make the delivery is irrelevant, from the perspective of the statute.

Which brings us back to the key point: you are making a false claim when you assert that Fedex/UPS rates are as high as they are "because that's the only way to make it legal."

And this matter is relevant to this thread, because the mail situation is an interesting example of a public entity and private entities competing with each other.
8.25.2009 12:13am
John Moore (www):
Guest056

If there is a racial cause to these disparities, you're not interested. And if someone else is interested, he's a racist. And if the government addresses his concerns with a body of inquiry, the government is going to inevitably enact a racist quota policy. All this, and your deepest concern is moving us into a post-racial society.

That is not correct. You confuse my "interest" and my policy prescriptions.

The policy of investigating racial makeup of ownership is clearly racist if the purpose is to address "disparities" found. A policy which defines "disparities" in terms of racial percentages is a racist policy.

The only justification I can see for anything close to this behavior would be investigating the government to see if it in any way discriminated based on race. The ONLY one. Is that what the purpose of these advisory boards are? And, why is there a high minority membership on such boards? Does one suppose, as our latest Justice has, that membership in a defined minority group, is some sort of qualification in judging racist government actions?
8.25.2009 12:50am
progressoverpeace (mail):
Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

These are positive instructions to the government on what IT MUST DO to maintain the least damage to a possibly innocent accused. The government is positively instructed to provide a speedy and public trial.
by an impartial jury

Positive instructions to the government on part of the framework of the process.

of the State and district wherein the crime shall have been committed,

Positively defined detail as to the above framework.

which district shall have been previously ascertained by law,

Neutral instruction that the area is within the rule of law.
and to be informed of the nature and cause of the accusation;

Positive instructions on government communication to the accused.
to be confronted with the witnesses against him;

Positive instructions on the nature of the process.
to have compulsory process for obtaining witnesses in his favor,

Positive instructions for what the government must allow the accused to do.
and to have the Assistance of Counsel for his defence.

Final detail on what the government must assure is provided for the accused.

I don't see any negatives instructions to the government, there, and this concerns the ultimate liberty of physical freedom.

Are you saying that this is given as a "negative liberty"? This is just a simple question of language. It doesn't say that the government can't hold you forever, it lays out a positive process which the government(s) must follow to insure the accused's liberties, in case of possible innocence.

Clearly, Posner and Rehnquist were speaking in limited contexts. The Precedent was not. He was talking to a lay audience who know little to nothing about what the Constitution actually is. And, yes, I listened to the whole interview, long ago.

So, to a general audience, would you describe this as a declaration of a "negative liberty"?
8.25.2009 1:11am
progressoverpeace (mail):
And, The Precedent was quite explicit in his radio interview, beyond the "charter of negative liberties" part. He said:


[The Constitution] Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf,

But the right to a speedy trial is exactly an example of what the government(s) must on your behalf. That is in direct contradiction to the specific words of your guy. How do you square that?

(And we're skipping the whole body of the document, which is the truly important part ... but nevermind that)
8.25.2009 1:26am
Fury:
Good grief, progressoverpeace and jukeboxgrad. Presidents misspeak, some more than others. Is that really what this is about? If you folks want to keep tabs of how many times, that's up to you, but it's not really germane to the topic at hand.
8.25.2009 8:55am
jukeboxgrad (mail):
pop:

Clearly, Posner and Rehnquist were speaking in limited contexts.


Clearly, you don't understand that you're making your deep hole even deeper. There's nothing "limited" about Posner's concept of "negative liberties." Pay attention to what Bernstein said about this:

Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he's an originalist, or otherwise endorses the Constitution as a "charter of negative liberties," though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding.


According to Bernstein, the concept of "negative liberties … is how the Constitution has been interpreted since the Founding." And that's all Obama was saying; he was recognizing this prevailing interpretation.

And there's nothing in what Posner or Rehnquist said to indicate they are "speaking in limited contexts." They were expressing a core concept of Constitutional interpretation that has prevailed (according to Bernstein) "since the Founding."

Then you come along and say that calling the Constitution a charter of negative liberties is "an utterly inaccurate statement." Why? Because your reflex is to condemn anything Obama says, and it never dawned on you that he was simply describing a key aspect of "how the Constitution has been interpreted since the Founding."

Thank goodness we have you to tell us that "how the Constitution has been interpreted since the Founding" is "utterly inaccurate." And how painfully ironic, since the interpretation you're rejecting is fundamentally conservative. Which is another indication that you indulged in a knee-jerk reaction, without bothering to actually grasp the subject matter.

I notice you haven't shown any examples of anyone supporting your position (that it's "utterly inaccurate" to say the Constitution is a charter of negative liberties). This probably has something to do with the fact that the people who question the traditional Posner-esque interpretation are typically liberals.

But the right to a speedy trial is exactly an example of what the government(s) must on your behalf. That is in direct contradiction to the specific words of your guy.


It's also in direct contradiction to the specific words of Posner. This is what Obama said:

[The Constitution] Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf


This is what Posner said:

The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.


There's no meaningful difference between "do on your behalf" and "provide services." There's no meaningful difference between what Obama said and what Posner said. You have painted yourself into a corner because you reflexively rejected the statement because you (like a bunch of wingnut bloggers) ignorantly assumed it was Obama's own statement, and you didn't realize he was simply repeating Posner's statement.

I notice you've ducked my question: when you insulted Obama for making the statement, did you know that he was simply repeating something that had already been said by Posner and Rehnquist? I think it's obvious that the answer is no.

==================
fury:

Presidents misspeak, some more than others.


When it happens hundreds of times, it's worth noticing. But I haven't said much about that. At the moment I'm focusing on a different phenomenon: how certain people reflexively attack Obama and end up only unmasking their own ignorance.

And speaking of ignorance, it's worth noticing that Glenn Beck is still singing the same tune, as of 7/28/09:

A document of mostly "negative liberties"? Wow, what a powerful endorsement of the most perfect political document in the history of the world. Thank you, Barack!


Is Beck being painfully ignorant, painfully dishonest, or both? Hard to say.

Also spreading misinformation about Obama's statement is Sen. DeMint. So I drastically understated the problem when I suggested that only wingnut bloggers are confused about this.
8.25.2009 9:29am
David M. Nieporent (www):
But the right to a speedy trial is exactly an example of what the government(s) must on your behalf. That is in direct contradiction to the specific words of your guy. How do you square that?
But it isn't. Although phrased as though it were a positive right, it's not actually one.

You don't have the "right to a speedy trial." You can't go up to a government official and say, "Hey, give me a speedy trial. I demand one now." You can't file a lawsuit saying, "I was promised a speedy trial! I didn't get it! Make them give me one!" Rather, the right to a speedy trial is actually properly understood as a negative right: a right NOT to be tried non-speedily. (*) That is, if the government wants to prosecute you, it must do so speedily -- but it doesn't have to do so at all.

Same with the sixth amendment's right to counsel: even if you're indigent, you don't have the right to get a lawyer assigned by the government; all you have is a right NOT to be tried if they don't.



(*) Actually, there are about a zillion caveats on this right, but I'm speaking generally about it.
8.25.2009 2:55pm
progressoverpeace (mail):
David,

Just on this area of the Bill of Rights and amendments, and not "The Constitution" as a whole, there is no question that the 6th is a set of positive instructions to the government(s). This was in the caveat pointed out by juke's own attempt to claim that The Precedent was just following Posner and Rehnquist in his cite describing Rehnquist's position:


In a series of cases he crafted the principle that the state has an affirmative obligation to protect a citizen only when it assumes control or responsibility of that citizen.


This is a key distinction and the 6th is, clearly, one of those cases of affirmative obligations. The Precedent did not say that he was speaking about the Bill of Rights and amendments, had no such caveat even in that limited context, and, contrary to juke's English, "providing services", as per Posner, and "must do on your behalf" are not even remotely the same.
8.25.2009 3:20pm
Nan Hunter (mail) (www):
The following response to the WPost op-ed is from Mark Hall, who did one of a series of extensive papers on legal issues in health reform for the O'Neill Institute on National and Global Health Law at Georgetown:

Why the Individual Mandate is Constitutional
By Professor Mark Hall
Professor of Law and Public Health
Wake Forest University

It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. Their reasoning is unconvincing and deeply flawed. Let me start with some basics and provide a lay explanation. (See full O’Neill Institute paper for a more detailed account).

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights – the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.
8.25.2009 3:43pm
David M. Nieporent (www):
I didn't ask you why Fedex charges more than $6 for overnight service. I asked you why they charge a minimum of $6 (roughly) for any delivery, even when it's not overnight.
That's easy: they don't.

I just went to their website and looked at rate tables; I see that the cheapest rate on one table is $4.57. (Rates of course vary depending on the service, but you just said you weren't limiting the discussion to overnight service.)

The document I cited is called "Understanding the Private Express Statutes." Everyone who cares about the distinction already understands that the statutes are implemented via regulations. I'm using the word "statute" to be consistent with the document I'm citing, and for simplicity. And because a violation of the regulation ultimately amounts to a violation of the statute.

Sometimes details like this are important, and sometimes they're just pedantic. Thanks for giving us a nice example of the latter.
Sometimes people are just mistaken, and sometimes people are hypocrites. Thanks for giving us a nice example of the latter.


Which brings us back to the key point: you are making a false claim when you assert that Fedex/UPS rates are as high as they are "because that's the only way to make it legal."
It's funny how you try to turn this around, because you're the one who actually started by making a false claim, to wit:
If UPS/Fedex really wanted to provide a $0.44 package delivery service (where "package" is defined as 'under 1 oz'), there's nothing stopping them. Too bad they're used to rates that are at least 14 times higher.
Now you've desperately tried to change the subject, rather than admitting that in fact, you were wrong, and FedEx cannot actually legally deliver for $0.44, except for actually-urgent deliveries.
8.25.2009 3:49pm
David M. Nieporent (www):
And the bottom line, despite all your desperate attempt to sidetrack the discussion is that your premise --

And this matter is relevant to this thread, because the mail situation is an interesting example of a public entity and private entities competing with each other.
-- is wrong. Public and private entities compete with each other in parcel service. They compete with each other in overnight service. But they do not compete with each other in mail service, because they are not allowed to do so.

The private companies must charge more than public entities -- much more; the exact amount is just "pedantry," since few people are going to pay $3 when someone else is charging $0.44 -- and are handicapped in many other ways. (Like not being able to be bailed out by Congress every time they lose money, like being forced to pay taxes, like being forbidden to use mailboxes, etc.)
8.25.2009 3:53pm
first history:
Nan Hunter:

I'm sorry, but your post needs to be removed. It's too much on topic. ;)
8.25.2009 5:11pm
jukeboxgrad (mail):
pop:

the 6th is a set of positive instructions to the government(s) … the 6th is, clearly, one of those cases of affirmative obligations


As Nieporent already tried to explain to you, it's not (and yes, I realize I cited an author who used the word "affirmative"). The 6th says that if the government wants to prosecute you, it has to affirmatively follow a specific procedure which protects your rights. As Nieporent already tried to explain to you, this is properly understood as a negative right: the right to not be victimized by a prosecution that neglects principles of due process.

"providing services", as per Posner, and "must do on your behalf" [what Obama said] are not even remotely the same.


They are "not even remotely the same" only if you're using a magic GOP dictionary. 'Service' means 'the action of helping or doing work for someone.' Feel free to explain how this differs in meaning from "do on your behalf."

You should also feel free to explain why you said Posner and Rehnquist were "speaking in limited contexts." Notice the broad statement Bernstein made: that the concept of "negative liberties" is "how the Constitution has been interpreted since the Founding." There's nothing "limited" about that statement, just like there's nothing "limited" about the statements made by Posner and Rehnquist. We already know that you're more of a Constitutional scholar than Obama, Posner and Rehnquist. So it's really not a big deal to also tell us you know more about the law than Bernstein.

And I notice you're still ducking the question I am now asking for the third time. When you insulted Obama for making a statement regarding the Constitution and "negative liberties," were you already familiar with Posner's earlier statement regarding the Constitution and "negative liberties?" Or did you first hear of Posner's statement when I mentioned it in this thread?

You, Beck, DeMint and a bunch of other people are engaging in transparent demagoguery. You caught Obama using the words "negative" and "Constitution" in proximity, and you're using that as a platform to spook ignorant people, by claiming that his statement was pejorative and/or incorrect. Never mind that he was simply making reference to (and not even necessarily endorsing, as Bernstein noticed) a conservative principle of Constitutional interpretation, and doing so by using a phrase apparently coined by Posner. The dishonesty of the attack is brazen.

The Precedent did not say that he was speaking about the Bill of Rights and amendments, had no such caveat even in that limited context


If you can turn that string of words into a sentence, I'll consider responding.

================
nieporent:

I see that the cheapest rate on one table is $4.57.


You're right, thanks for the correction. I was browsing their rates via their rate calculator, and for some reason the lowest number that came up was $6.14.

But $4.57 is still 50% higher than the minimum required by law ($3). So your earlier statement (that Fedex/UPS rates are as high as they are "because that's the only way to make it legal") is still false.

Sometimes people are just mistaken, and sometimes people are hypocrites. Thanks for giving us a nice example of the latter.


Using terminology that's consistent with the title of the official document I'm citing is not a mistake, and it's not hypocritical.

FedEx cannot actually legally deliver for $0.44, except for actually-urgent deliveries


You're right, they can't. When I said they could, I made a mistake. When I said they can legally deliver for $0.44, I should have said they can legally deliver for $3.00.

So feel free to explain why their minimum fee is not $3.00, and feel free to explain why you said that Fedex/UPS rates are as high as they are "because that's the only way to make it legal." The statute references $3.00 as the minimum, not $4.57. The gap isn't as big as I thought it was, but they're still charging significantly more than what the law requires.

they do not compete with each other in mail service, because they [private entities] are not allowed to do so.


Private entities are indeed allowed to provide mail service, as long as they don't call it "mail service." It's perfectly legal as long as they charge $3 and call it "Private Carriage Authorized by Postal Regulations." Who cares what it's called? A rose by any other name etc.

few people are going to pay $3 when someone else is charging $0.44


There are people who claim that USPS provides rotten, unreliable service. $3/unit is not an economically viable way to deliver a million credit-card offers, but it's probably an economically viable way to deliver important business letters that need to be delivered reliably (and there are many situations that require reliable delivery but not necessarily ultra-prompt delivery).

The private companies must charge more than public entities -- much more


The claim you offered before is that they charge what they charge (at least as far as the minimum rate is concerned) because "that's the only way to make it legal." Now you have a different explanation, that they charge what they charge on account of being "handicapped" by such things as taxes. Does that mean you're withdrawing your prior claim? I guess it makes sense to withdraw it, since it's been shown to be false.
8.25.2009 7:47pm
David M. Nieporent (www):
Using terminology that's consistent with the title of the official document I'm citing is not a mistake, and it's not hypocritical.
No, it is a mistake. Your continued refusal to admit it -- in the face both of your hyperaggressive demands that everyone else admit mistakes, and your past claims that you admit your own mistakes -- is what's hypocritical.

So feel free to explain why their minimum fee is not $3.00
Already done: it costs more than $3 to ship something express, and nobody will pay $3 for mail when someone else is charging $0.44. The purpose of the statute isn't to arbitrarily price-fix, but to prevent competition with the post office.
and feel free to explain why you said that Fedex/UPS rates are as high as they are "because that's the only way to make it legal." The statute references $3.00 as the minimum, not $4.57. The gap isn't as big as I thought it was, but they're still charging significantly more than what the law requires.
I realize that logic of more than one step is complicated, but try to keep up: the law requires them to either provide expensive slow mail, or to provide express mail. Since the former is a sure money-loser, it's not a service worth offering. The latter is a service worth offering, but not at $3. In other words, the law requires them to offer the latter service at a high price.

Private entities are indeed allowed to provide mail service, as long as they don't call it "mail service."
Or price it competitively with mail service. Saying that you're "allowed" to sell something at 7x the price of someone else is the de facto equivalent of saying you're not allowed to sell it.

There are people who claim that USPS provides rotten, unreliable service. $3/unit is not an economically viable way to deliver a million credit-card offers, but it's probably an economically viable way to deliver important business letters that need to be delivered reliably (and there are many situations that require reliable delivery but not necessarily ultra-prompt delivery).
Then the post office, FedEx, and UPS are all pretty foolish for not realizing this, aren't they? None of them seem to think there is sufficient demand for such a service at such a price. (The closest thing is certified mail, which is $2.80 on top of the actual postage rate, but I've never in my years of work used certified mail without return receipt, which is signficantly more.) Or, perhaps, there really aren't "many" such situations at all. When we need something sent reliably, we use FedEx, not mail, regardless of time pressure. (If there's no time pressure we use two or three day FedEx service instead.) You'll note that USPS Priority Mail, which in theory is closest to what you describe, starts at $4.95, not $4.57.

Now you have a different explanation
In the real world, few things are monocausal.
8.26.2009 4:04pm
Brian Garst (www):
Any argument that doesn't overturn the New Deal is not a constitutional argument. I realize you lawyers don't want to admit this because it's where you feather your nest, but modern constitutional jurisprudence has strayed so far off the mark that it's almost completely useless as a means to answer the question over whether Obamacare is constitutional. The best source is still, believe it or not, the actual constitution, not what two centuries of judges gradually expanding the authority and scope of government have twisted it into.
8.26.2009 7:35pm
jukeboxgrad (mail):
nieporent:

your past claims that you admit your own mistakes


The fact that I admit my own mistakes are not just "claims," and are not just in the "past." There are examples in this thread, and on other occasions I've shown proof of prior examples.

your hyperaggressive demands that everyone else admit mistakes


When your "mistakes" take the form of phony accusations, it is indeed important to admit them and take responsibility for them. Too bad you don't. And pointing that out is not "hyperaggressive."

nobody will pay $3 for mail when someone else is charging $0.44


I already explained that there are probably situations where a reliable delivery for $3 is probably a better value than an unreliable delivery for $0.44. And if the item is, say, a large envelope weighing 4 ounces, then the comparison is not between $0.44 and $3, but between $1.39 and $3.

In the real world, few things are monocausal.


Good point. You should explain that to the nieporent who earlier offered a monocausal explanation ("they do not charge rates '14 times higher' because evil capitalists like to charge lots of money or are inefficient, but because that's the only way to make it legal") which also happens to be false. Which is something that for some reason you still refuse to admit.
8.26.2009 9:20pm

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