The Publius blog a helpful post linking information on the various lawsuits recently filed against the Obama health care bill. In addition to the suit filed by 13 states and a separate suit by the state of Virginia, there is a little-noticed lawsuit challenging the individual mandate brought by the conservative Thomas More Law Center on behalf of several individuals who say they refuse to purchase health insurance. The little-known TMLC case could turn out to be important if the states’ challenges to the individual mandate are dismissed for lack of standing or on other procedural grounds that may not apply to individual citizens who (unlike the states) are directly subject to the mandate.
When time permits, I plan to write posts on the three lawsuits, discussing some of the legal issues involved. For now, I will briefly that there are three sets of issues that arise:
I. Procedural questions related to standing and ripeness. Because the mandate doesn’t take effect until 2014, administration lawyers will almost certainly argue that the case isn’t ripe yet. They will also argue that the plaintiffs, especially the states (which are not directly subject to the mandate) don’t have standing.
II. The constitutionality of the individual mandate. In my view, Congress doesn’t have the power to enact this mandate under either the Commerce Clause or its power to tax. Obviously, the administration has a very different view.
III. The two lawsuits filed by the states also challenge the constitutionality of various mandates and federal funding conditions that the bill imposes directly on state governments. This part of the lawsuits faces tougher sledding than the part challenging the individual mandate. For years, the Court has (wrongly in my view) taken a very permissive attitude towards the constitutionality of federal funding of state governments and the conditions Congress attaches to the grants it offers. Still, these parts of the bill are very complicated and I haven’t yet had a chance to go over them thoroughly. So I may be missing an argument here that is stronger than it at first appears.
UPDATE: I initially referred to Publius as a “legal blogger.” However Publius actually appears to be a group blog. I have changed the text of this post accordingly.
B.D. says:
There is nothing uncertain about how the individual mandate will operate, so I’m not sure I understand how there could be a ripeness issue.
March 25, 2010, 6:22 pmFormer Army MP says:
Assuming the Circuit Court(s) rule ripeness for the Health Care Bill, what effect on cases about the 1986 Ban on accepting the $200 Firearm Tax Forms?
March 25, 2010, 6:22 pmRafi says:
The individual mandate was proposed by the Heritage Foundation. If you want to enactregulation forcing insurers to cover those with preexisting conditions (one of the most popular parts of HCR), then you need something like an individual mandate to ensure that healthy people get insurance (rather than waiting until they get sick).
Five years ago, this was not a controversial proposal – in fact, it was a conservative one.
So why are conservative legal scholars suddenly writing columns about how it is ‘unconstitutional’? I submit that it’s only because Democrats adopted the idea themselves.
It’s color war.
Anything “the other side” does is to be fought… even if the idea originally came from “our side.”
And for whatever it’s worth, the individual mandate is completely toothless. How many conservatives ranting about it are aware that there is no enforcement mechanism to ensure compliance? The goverenment cannot throw you in jail for refusing to pay. They cannot even attach a lien.
March 25, 2010, 6:26 pmOff Kilter says:
“And for whatever it’s worth, the individual mandate is completely toothless FOR NOW. How many conservatives ranting about it are aware that there is no enforcement mechanism to ensure compliance YET?”
Fixed it for you…
March 25, 2010, 6:28 pmIlya Somin says:
The individual mandate was proposed by the Heritage Foundation. If you want to enactregulation forcing insurers to cover those with preexisting conditions (one of the most popular parts of HCR), then you need something like an individual mandate to ensure that healthy people get insurance (rather than waiting until they get sick).
I am not a conservative. I was against the individual mandate when Heritage proposed it back in the 1990s, as was the libertarian Cato Institute (which published studies criticizing it), and most other libertarians. I did not blog about its constitutionality back then because I didn’t have a blog and wasn’t a con law professor. I didn’t blog about it between 2006 (when I joined the VC) and the time Obama proposed it because until he did it was not a live issue. I don’t see any reason to opine on the constitutionality of every proposal ever made by a conservative group.
March 25, 2010, 6:34 pmSteve says:
“And for whatever it’s worth, the individual mandate is completely toothless FOR NOW. How many conservatives ranting about it are aware that there is no enforcement mechanism to ensure compliance YET?”
Hence the ripeness question.
March 25, 2010, 6:45 pmB.D. says:
Rafi – what does any of that have to do with the merits?
Are you just venting or something?
March 25, 2010, 6:46 pmMichael B says:
Something within the scope of enumerated powers seems, in broadly conceived terms, the most fruitful approach. Though I’m not an attorney, and perhaps such a broad statement is little more than negligible or not terribly interesting.
But strict scrutiny also seems entirely applicable. Strict scrutiny, used to protect “fundamental rights,” requires the legislature to prove its compelling interest for any restriction narrowly tailored to address that interest. Erwin Chemerinsky on the subject, immediately after taking note of the compelling interest requirement (emphases added):
March 25, 2010, 6:50 pmPhilC says:
How about opining about the constitutionality of a proposal you do support. You don’t like the conservative proposal, when it was proposed by conservatives. You don’t like the conservative proposal, when it’s adopted by the Democrats. So, what do you propose?
March 25, 2010, 6:54 pmBob from Ohio says:
This affects both sides, doesn’t it?
It also may surprise you that the Heritage Foundation is not the sole decider of what is “conservative”.
March 25, 2010, 6:55 pmArkady says:
Ilya, shouldn’t you, in the interests of precision, head this posting with “Lawsuits Against the Individual Mandate” instead of “the Health Care Bill”? Or are other portions of the health care bill under legal assault? (I’m not aware of any, but…)
March 25, 2010, 6:56 pmMichael B says:
Also, back to enumerated powers properly conceived, Justice Thomas, concurring in United States v. Lopez (1995), emphasized “our case law has drifted far from the original understanding of the Commerce Clause,” and suggested the Court “temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”
Likewise, Randy Barnett (Restoring the Lost Constitution: The Presumption of Liberty), notes,
March 25, 2010, 7:00 pmAnonsters says:
And if there’s one dude who really has his finger on the pulse of the way the courts are likely to decide issues, it’s Randy Barnett….
March 25, 2010, 7:13 pmArthur Kirkland says:
The Thomas More Law Center appears to argue that the Constitution excuses certain Americans from paying certain taxes because they claim to possess religious objections to certain government expenditures.
If that legal “reasoning” were to prevail, I would form a church overnight (with a suitable tithe) that objects to military spending, agricultural subsidies, and criminal prosecution for drug possession. I predict it would become one of the nation’s most popular churches, with some of the most fervent adherents, overnight. And I would become rich, because plenty of people would eagerly pay for the right to refrain from subsidizing drug warriors, those who choose to attack the wrong country, and sugar producers.
March 25, 2010, 7:26 pmleo marvin says:
No, but I assume you agree nothing Heritage endorses can reasonably be called “socialist.”
March 25, 2010, 7:37 pmAnonsters says:
Except for the individual mandate. ;)
March 25, 2010, 7:43 pmNunzio says:
Perhaps a better argument might be to say that the individual mandate violates substantive due process. “Implicit in the concept of ordered liberty is the right of an individual to be free from purchasing a good or service the individual does not want to purchase.”
Of course, it would be awkward for the states to make this argument.
March 25, 2010, 7:49 pmIlya Somin says:
How about opining about the constitutionality of a proposal you do support. You don’t like the conservative proposal, when it was proposed by conservatives. You don’t like the conservative proposal, when it’s adopted by the Democrats. So, what do you propose?
I’m not a health care expert. So there is little point in my coming up with my own health care policy proposal. However, if I did, it would involve greatly reducing the role of government in health care across the board. I think it’s pretty obvious that that proposal would be constitutional. Even if the Constitution permits large-scale government intervention in health care, it certainly doesn’t require it.
March 25, 2010, 7:50 pmMichael B says:
Anonsters,
Just curious, do you have something more to offer than snide? Or does that effectively summarize your acute analysis of the subject.
Firstly, no one, certainly not I, referred to any prediction of any outcome. Hence, you might attempt to respond to what was actually said. What a concept, responding to what was said, in lieu of offering up a sneering and facile contempt!
Secondly, and rather obviously, since the New Deal and subsequent Courts, a narrower view along original meaning lines, and as suggested in my two earlier comments, has not been in favor. Otoh, as reflected in the reference to Justice Thomas’s concurrence in United States v. Lopez, there have been some correctives of those earlier rulings.
Third, and equally obviously, no one denies the legal challenges ahead will be difficult. (They likely wouldn’t be difficult absent the sophistries, casuistries, etc. motivated by an array of ideological/political motives from those Courts, but the obviousness of what you’re suggesting is blatant.) But thanks for the profundity, a deep and penetrating mind, effectively summarized via a sneer!
But let me guess, you’d like a more decorous exchange. Something along the lines of, you offer facile contempt, and then expect respect and a decorous response? Go elsewhere, bucko.
March 25, 2010, 7:52 pmJB says:
But Thomas is kind of the outlier isn’t he? Rehnquist, in Lopez, acknowledged that Congress can regulate things that substantially affect interstate commerce. Thomas made an originalist argument, but it was not the majority view.
March 25, 2010, 7:52 pmAnonsters says:
My acute analysis begins and ends with: when you’re relying on arguments endorsed primarily by people like Justice Thomas and Randy Barnett, your case is looking pretty dim.
Again. Furthermore, this Court isn’t that Court. Until you adjust for Alito and Roberts, who don’t seem as interested as Rehnquist and O’Connor were, in pursuing some neo-federalism agenda, your analysis is more or less out of date.
Finally, you don’t exactly provide a compelling analysis yourself, “bucko.”
That’s tantamount to saying, “Also, back to enumerated powers as I conceive them.” Because by “properly” you certainly can’t mean “as courts currently conceive them,” or “as courts are likely to construe them,” or even “as courts conceived them in [year x].” If you want to relitigate McCulloch, go nuts.
Don’t expect me to be so very impressed with your analysis when it essentially relies on that project.
March 25, 2010, 8:02 pmMichael B says:
Some readings to offer, the first directly applies to the subject at hand, the second and third more generally, as context:
1) A (new?) blog, Cornell law prof W. A. Jacobson: Legal Insurrection
2) David Harsanyi, The Mugging of Personal Freedom, excerpt, emphasis added:
“What does it say about your cause that nearly every policy idea you cook up is based in some form or another on coercing the American people?
“When House Judiciary Committee Chairman John Conyers, D-Mich., was asked recently to identify where the Constitution grants Congress the authority to force all Americans to buy health insurance, he replied, ‘Under several clauses, the good and welfare clause and a couple others.’”
3) Dennis Prager, It’s a Civil War: What We Do Now, excerpt:
“A terrible thing happened to America on Sunday, March 21, 2010.
“The country took its biggest step ever down a road diametrically opposed to its original intent of keeping the state small so that the individual can be free and great.”
Bingo on all scores.
March 25, 2010, 8:03 pmNunzio says:
JB
In his Raich dissent, Thomas actually said it was a more difficult issue as to whether the restriction was a necessary and proper means of regulating interstate commerce in marijuana.
It seems like the substantially affects interstate commerce test is just becoming shorthand for whether the provision at issue is necessary and proper. If it’s economic activity (even intrastate) that substantially affects interstate commerce, then it’s necessary and proper to the regulation of interstate commerce itself.
Actually, Scalia’s concurrence in Raich, agree with it or not, goes even further. Whether or not the provision at issue is even economic activity (which he said, rightly I think, that growing your own medical marijuana in the backyard was not), then Congress can ban that activity to make more effective its regulation of the interstate distribution of marijuana
March 25, 2010, 8:04 pmgeokstr says:
I’m not about to research what they said in the 1990′s, but as a conservative, I’d think that they would make such a proposal in some larger context, like, if we were going to have universal coverage anyway, or even outlaw insurance company rejection for pre-existing conditions, both of which I would bet were integral parts of HillaryCare. The only way to feasibly do so would be to make everyone carry insurance. Otherwise you totally destroy the insurance business model if people can wait until they get sick to buy insurance.
Duh-uh.
I find it hard to believe they would just come out and recommend an individual mandate, absent other context.
March 25, 2010, 8:06 pmPhilC says:
Then we can conclude that, either you see no problems in healthcare or your ideological friends have no solutions. You endorse what Cato is against but don’t write about what they are for.
March 25, 2010, 8:10 pmMichael B says:
Anonster,
Where did I suggest I was offering an “analysis”?
I offered some basic information, some background, some historical and juridical context, along with some salient and entirely germane facts.
As to analysis, at least to this point: hypotheses non fingo
March 25, 2010, 8:12 pmJB says:
Right, which I think just proves that the original meaning of the commerce clause is a dead letter.
March 25, 2010, 8:16 pmMichael B says:
“That’s tantamount to saying, ‘Also, back to enumerated powers as I conceive them.’” Anonsters
Gosh darn! Eureka! Anonsters has rendered yet another profound insight. This means, Anonsters – and I’m breathless with this continued profundity of yours – that when you speak or write it reflects your point of view, whereas when I speak or write it represents my point of view. Keen stuff! You’re a regular Isaac Newton, Einstein and Paul Dirac all rolled into one formidable analyst! Breathless indeed.
“Because by “properly” you certainly can’t mean “as courts currently conceive them,” or “as courts are likely to construe them,” or even “as courts conceived them in [year x].” If you want to relitigate McCulloch, go nuts.” Anonsters
By “properly” I was in fact referring to Constitutional “propriety” as commonly and rather formally conceived – i.e. as reflecting enumerated powers. Again, that’s “propriety,” in distinction to “necessity,” o.k.!
“Don’t expect me to be so very impressed with your analysis when it essentially relies on that project.” Anonsters
Oh dear. I’m all at sea. What am I to do, absent your approval?
March 25, 2010, 8:27 pmAnonsters says:
I don’t know, but you’re pretty whiny about it, aren’t you?
March 25, 2010, 8:30 pmMichael B says:
That wasn’t a “whine,” that was derision, Anonsters.
March 25, 2010, 8:51 pmAnonsters says:
Potaytoe, potahtoe.
March 25, 2010, 8:57 pmMichael B says:
Back to a USSC case. In Schecher Poultry Corp. v. United States (1935) the defendants challenged the Natl. Recovery Act as beyond Congess’s power to regulate commerce among the states. Again emphasizing propriety restraints (i.e. enumerated powers) the Court noted the act went far beyond the fostering of cooperation among members of industry, rather (emphases added),
The Court’s ruling per se, in this case, is not obviously applicable – however, responding directly to the argument that the “grave national crisis” necessitated the act, the Court stated, to underscore the propriety requirement of legislative action (emphasis added),
“… the Progressive Era Supreme Court began to require proof that both federal and state legislatures restricting the retained liberties of the people were actually pursuing a legitimate purpose rather than merely purporting to do so. At the state level, an act must be within the police powers of a state, while at the national level it must be within an enumerated power. As Madison had urged, they began requiring of legislation a showing of actual means-end fit, rather than merely deferring to legislative judgment …” R. Barnett (op. cit.)
March 25, 2010, 9:15 pmAnonsters says:
Really? You’re citing Schechter?
And you want to be taken seriously?
March 25, 2010, 9:34 pmDougInSanDiego says:
uhhhhhhhhhhh hhhhhhhhhhhhhhhhh
It at times gets pretty darn tedious seeing Anonsters and rpt spout meaningless fringe snide remarks, while at no time balancing them with any actual constructive comments. Clearly these two gain some odd pleasure in being rude – maybe some over-compensation sort of thing – but it might be better if the two tried to distinguish themselves by addng value instead of simply being antisocial.
At least – that’s the view from where i sit.
Cute puppy, though ………
March 25, 2010, 9:38 pmAnonsters says:
Do you think Schechter is good law?
I know, right!
March 25, 2010, 9:50 pmMichael B says:
The necessity (means-end) requirement of legislative action was underscored by the USSC in Railroad Retirement Board et al. v. Alton R. Co. (1935) (emphasis added):
“Arbitrary and unreasonable and bear no proper relation,” such as the Louisiana purchase – along with other “purchases”? (In this case, the Court ruled the necessity requirement was not met.)
As to the propriety requirement again, the Court distinguished between “constitutional power” and “social desirability,” concluding the rationales of the statute were not in proper accordance with the regulation of commerce but, rather, they were directed to the social welfare of (workers) beyond their voluntary terms of employment (emphasis added):
Indeed, while the status of an employee before her employer is not the same as that of a citizen (or even non-citizens!) or a state before federal legislation and coercive authority, the interest of propriety necessarily comes to the fore. What exactly is to prohibit federal legislatures from exercising coercive power on behalf of such items as clothing, food, housing and “a hundred other matters”?
Underscoring all of this, the historical evidence, as alluded to in an earlier comment, strongly supports a narrow original meaning of Congress’s power to regulate interstate commerce.
Disregarding (even disdainful of) this fact, the New Deal and subsequent Courts (with some more recent attenuations) have allowed Congress to regulate any activity if, in the aggregate, it merely affects commerce between states.
Wickard v. Filburn (1942) is a particularly notorious case in this vein, one whose rationale is overdue to be redressed. In Wickard the distinction between intrastate and interstate commerce was not merely blurred, it was destroyed, it was annihilated. The rationale of Wickard and subsequent rulings is very often justified on the basis of an interconnected natl. economy, one unforeseen, or so it goes, by the founders. But the founders very much did foresee such an interconnected economy. James Madison, responding to Justice Marshall’s construction in McCulloch v. Maryland (1819) (emphases added):
Similarly, and with equally potent import, the founders distinguished between commerce per se vs. activities that more simply (or not so simply) affect or are benefited by commerce.
Off Topic, but btw, has the DL/LEM (dominant left/liberal establishment media) become courtesans and courtiers to the Left/Dems and the current administration, or what? Pathetic and, more than pathetic, a rank revulsion.
March 25, 2010, 10:02 pmMichael B says:
“Good law”???? Schechter? Lochner, on a surface level, isn’t “good law” because it seems to run against the grain of “reasonable” social policy. (Congress, simply doing what seems “reasonable,” now there’s a few volumes worth of material!) But one of the reasons Lochner, at least in substantial parts, was “good law” nonetheless was because it unduly singled out bakeries. I could do a brief excursus on Lochner as well, but something tells me Torquemada here would sniff at that as well, intimating his sniff suffices for probative analysis.
Besides, I was making some points via reference to some excerpts from Schechter, not arguing Schechter in the main.
March 25, 2010, 10:13 pmConstantin says:
You guys all are forgetting the integral importance of the “Good & Welfare Clause,” confidently identified by Judiciary Cmte Chairman John Conyers as the source of the law’s constitutionality. Since there’s no way a person lacking any modicum of legal (or, perhaps, even actual) literacy could ascend to such a position, all concerned should defer to Conyers and his profound interpretation.
In all seriousness, if you want a good laugh you should call the Conyers D.C. office and ask about this. Your query will be addressed by an indecipherable young man who will insist that such a clause exists, that the attention paid to Conyers’s observation is racist, and that you, in fact, are a racist for calling to ask. Try it yourself if you have a few minutes.
March 25, 2010, 10:15 pmAnonsters says:
Yes, it’s a stock phrase for whether a case still has precedential value, or whether it’s been overturned, restricted to its facts, distinguished into nonexistence, or otherwise questioned.
Lochner, for example, is uncontroversially not good law anymore, whatever you may happen to think about whether it should be or not. See Nebbia v. New York and West Coast Hotel.
March 25, 2010, 10:27 pmGregory Gelfond says:
Couldn’t one argue that the bill is “discriminatory” in and of itself? Using the standard of disparate impact the tax on tanning salons disproportionately affects white people and as a consequence is illegal?
March 25, 2010, 10:29 pmMichael B says:
Anonsters, it’s a stock phrase, who’d a thought it? But I was referencing it for both meanings, not a single meaning only. Too, you seemingly completely misconceive what I’m doing here, I’m plumbing some fundamental Constitutional principles in addition to and via reference to some soundly argued case law at the level of the Supreme Court.
Here’s a big, big clue for you to fathom, Mr. Chin-Puller:
We disagree about some very basic issues, about absolutely fundamental, foundational issues. Got that one, Einstein? This is a debate, a discussion, an exchange of ideas, some notable aspects of which are in fact fundamental as applied to the Court and the republic at large.
March 25, 2010, 10:46 pmAnonsters says:
Oh, I see, so when I respond in a neutral, non-aggressive way, explaining only what I meant by a phrase you appended four question marks to, and you respond by being a dick, well, that’s just you trying to have an exchange of ideas.
But everything I say makes me a partisan hack who is worthy of nothing but contempt.
Right. I’m done with you.
March 25, 2010, 11:05 pmDKH says:
Michael B,
Thanks for pointing to a case at the Supreme Court level that has some commentary relevant to this issue.
Anonsters,
Are you actually going to contribute anything here? Namely, why it is true that this Schechter case is no longer valid as precedent or not “good law” for whatever other reason? And why that invalidates its commentary that is otherwise interesting? I have no legal training, so your disputing Michael’s point, but notably having a complete lack of argument, isn’t very persuasive to me if it requires a legal background.
March 25, 2010, 11:35 pmleo marvin says:
You’re coming to a conclusion I reached some time ago. But see jukeboxgrad’s persuasive counter-argument.
March 25, 2010, 11:49 pmAnonsters says:
Because a switch in time saves nine.
Schechter was one of the pre-1937 Supreme Court’s decision striking down New Deal legislation. Schechter struck down certain parts of the National Industrial Recovery Act on the grounds that it impermissibly delegated unconstrained lawmaking power to the executive and that it was outside the scope of Congress’ Commerce Clause powers.
The entire edifice of Schechter was reversed in 1937 and thereafter. Cases like West Coast Hotel and Jones & Laughlin mark the shift in the Court’s jurisprudence, to a more permissive attitude to (among other things, but in particular) Congress’ Commerce Clause power. Then you get cases like Wickard v. Filburn, a favorite horse for libertarians to beat, in which the Court upholds Congress’ power to regulate the growing of wheat on a person’s farm, when the person only intended it for personal consumption (and wasn’t going to market it).
Because to imagine that those cases, or the propositions for which they stand, are relevant to today’s decisions, for example for purposes of considering the constitutionality of the HCR bill, is to imagine that the Court is going to go back to the days of striking down economic legislation a la pre-1937.
So Michael B. is throwing out quotes from these cases as though they contain the Court’s settled understanding of Congress’ legislative powers, when in fact they contain propositions whose time has long-since come and gone. It’s disingenuous in the extreme, and he knows it is. That’s why he wants to characterize it as merely an “exchange of ideas,” because he knows that as a matter of application, he’s already lost the fight. So he quotes long-repudiated Supreme Court decisions and says, “See, these are fundamental constitutional principles,” and when someone has the temerity to boggle at such an astonishing (because ridiculous) tactic, he claims it’s just a philosophical discussion, it has nothing to do with what’s actually good law, with what would actually apply today, and you’re a clueless idiot if you don’t see that. Well, I guess I’m a clueless idiot, then.
Let me give you an analogy.
It would be a little like me quoting at length from Plessy v. Ferguson in order to provide (merely for interesting discussion, for a fundamental philosophical debate about what the Constitution says or means, really!) illumination about what the Equal Protection Clause means.
That would be ridiculous. And I would deserve whatever scorn was thrown my way if I tried to do it.
March 26, 2010, 12:13 amArizona Attorney General Won't Challenge Obamacare | KEYTLaw says:
[...] about Obamacare’s requirement that American’s must purchase health insurance: “The constitutionality of the individual mandate. In my view, Congress doesn’t have the power to en….” See also Randy E. Barnett’s article in the Washington Post called “Is [...]
March 26, 2010, 12:30 amDKH says:
Anonsters,
Ok, thanks.
March 26, 2010, 12:52 amADS says:
A couple posts have touched on the subject but then were derailed by animosity towards other posters. United States v. Lopez and the subsequent decisions should be controlling on whether the individual mandate is within the bounds of the commerce clause. If individuals were allowed to purchase health insurance across state lines, there would be no issue. As it stands, we can have an argument, but the individual mandate is constitutional.
The result of Lopez is that Congress cannot enact legislation that only has tangential interstate commerce aspects, like the Gun Free School Zones Act. However, the insurance mandate substantially affects interstate commerce because it creates an activity that substantially affects interstate commerce. This may not have been the intended result of Lopez, but it is in line with the rule that was articulated. The Supreme Court would have to clarify Lopez in order to rule the insurance mandate unconstitutional.
March 26, 2010, 12:58 amThe Volokh Conspiracy » Blog Archive » Lawsuits Against the Health … | Health Blog says:
[...] more from the original source: The Volokh Conspiracy » Blog Archive » Lawsuits Against the Health … a-helpful-post, against-the-obama, health, helpful-post, lawsuits-recently, nformation-on-the, [...]
March 26, 2010, 4:39 amTweets that mention The Volokh Conspiracy » Blog Archive » Lawsuits Against the Health Care Bill -- Topsy.com says:
[...] This post was mentioned on Twitter by Cheryl Jones, Jenny Smith, Kate Fullcot, Peter Jackson, BabeinNY and others. BabeinNY said: http://711go.com The Volokh Conspiracy » Blog Archive » Lawsuits Against the Health … http://bit.ly/bw4oS7 [...]
March 26, 2010, 6:05 amsmitty says:
I’m no lawyer, but, as a person possessed of common sense, the notion that I have to wait for the mugging to occur for some ‘ripeness’ requirement to be met seems absurd.
March 26, 2010, 6:43 amIn International Law, countries retain the right of self-defense. How is it that individuals should await calamity before taking action?
Augo Knoke says:
Despite my blog on townhall, I’m no conservative and probably much more of a “libertarian socialist” if such a homunculus could exist. I like to be challenged by other outlooks and I like to challenge them myself. Furthermore, to end my full disclosure, I’m neither a lawyer nor a U.S. citizen.
I just found on Salon a piece by Joe Conason that I find intriguing and very much in the vein of my predilection to poke on conservative, libertarian, liberal or socialist internal inconsistencies:
So George Washington was a socialist, too!.
Basically, Conason refers to the fact that the 1792 Militia Act mandates
The source he cites and I excerpted from is provided by non other than a distinguished professor from UCLA Law School, one Eugene Volokh – thus at least on that one I should be on firm territory.
March 26, 2010, 6:53 amOn what judicial grounds would this have or not have any relevance to the ongoing discussion on the individuale mandate?
Anonsters says:
The picture of GW alone is worth clicking through.
March 26, 2010, 8:33 amFriday Highlights | Pseudo-Polymath says:
[...] Those Healthcare lawsuits. [...]
March 26, 2010, 9:40 amStones Cry Out - If they keep silent… » Things Heard: e111v5 says:
[...] Those Healthcare lawsuits. [...]
March 26, 2010, 9:44 amMark Field says:
Courts have a number of rules to prevent people from bringing hypothetical lawsuits. Among those are doctrines like ripeness and standing. The basic idea is that courts should only resolve actual “cases and controversies” (the words used in Art. III).
Without getting too far into the technical thicket, there are sometimes ways around some of these doctrines (e.g., actions for declaratory judgment). Whether any of those apply would take up too much space to discuss and wouldn’t be very helpful anyway because they’re dependent on the specific facts.
March 26, 2010, 10:56 amAugo Knoke says:
Anonsters
That’s definitely a convincing legal argument. Or shall I call it evading the issue?
March 26, 2010, 11:15 amAnonsters says:
You can call it, “I was amused by the picture of GW, to the extent that I have saved it to my hard drive, and so I posted that it was worth clicking through to the link just to see the picture of GW.”
March 26, 2010, 11:55 amTracy Johnson says:
You should run a series on each of the 13+1 lawsuits. Once a week. That should provide at least 14 weeks of blog entries.
March 26, 2010, 12:57 pmMark Hall says:
My analysis is here:
http://oneillhealthreform.wordpress.com/2010/03/26/are-the-attorneys-general’s-constitutional-claims-bogus/
March 26, 2010, 2:45 pmAre The Attorneys General’s Constitutional Claims Bogus? « Legal Issues in Health Reform says:
[...] there are procedural problems. States probably have no standing to enforce arguments about violation of individual rights [...]
March 26, 2010, 2:48 pmMichael B says:
“So Michael B. is throwing out quotes from these cases as though they contain the Court’s settled understanding of Congress’ legislative powers …” Anonsters
No, I was not doing so in that matter, in fact I stated as much, Einstein.
March 26, 2010, 5:00 pmMichael B says:
“It would be a little like me quoting at length from Plessy v. Ferguson in order to provide (merely for interesting discussion, for a fundamental philosophical debate about what the Constitution says or means, really!) illumination about what the Equal Protection Clause means.” Anonsters
Not remotely so. To analogize Plessy (racial segregation) with what I was forwarding (at base, a natural law / natural rights legal and philosophical basis), is, once again, nothing more than an arrogation and a sneer. And yes, I realize your not forwarding Plessy in general, but rather are alluding to the Equal Protection Clause – in support of the codification of racial segregation, but you still widely miss the mark with that additional sniff.
Likewise, I did not state I was forwarding “merely” an “interesting discussion” in some abstract sense.
March 26, 2010, 5:16 pmAre The Attorneys General’s Constitutional Claims Bogus? : HEALTH REFORM WATCH says:
[...] there are procedural problems. States probably have no standing to enforce arguments about violation of individual rights [...]
March 26, 2010, 6:23 pmBill V says:
Could the Healthcare Mandate be ruled unconstitutional based on the 13th amendment language of involutary servitude or more specfically US Code Title 18 section 1584 Involuntary Servitude and 1589 Forced Labor? In the health care mandate the federal government requires an individual to work a set of hours for wages to be spent for a private agency service (Health Insurance) failure to do so will result in fines and legal action. Is this not the threat that the Forced Labor section speaks of? Is there any case law to support this?
March 26, 2010, 7:58 pmADS says:
Bill V,
No, an individual mandate requiring the purchase of goods and services is not involuntary servitude. There are too many steps in the logic for it to be a valid legal claim.
March 27, 2010, 2:04 pmBill V says:
ADS,
How can the FED require that an individual purchase anything from a private enterprize? Even in the Wickard v. Filburn 1942, the farmer was participating in commerce by growing his own wheat thus the decision based on interstate commerce. In the healthcare mandate an individual is being forced to participate if that individual does not have the Gov approved healthcare. How is this not forced labor under the threat of law and enforced by the IRS. This is essentially having individuals work for wages and requiring them to spend part of thier wages in the “company store”. As the Fed sets up healthcare exchanges and requires a minimum standard in regards of coverage, essentially making these insurance companies a contractor for the government. Looks like the serf/company store model to me. If the government can require an individual to participate in commerce against their will for a private agency’s benefit, then where does it stop? I am sure that the founders never envisoned this type of Federal action and would have put a stop to it if they knew.
As Merle Travis wrote about the company store:
You load sixteen tons . . . what do you get?
March 28, 2010, 8:21 amAnother day older and deeper in debt
Saint Peter don’t you call me ’cause I can’t go
I owe my soul to the company store
Michael B says:
Bill V,
In fact, your reasoning, via analogy and via the same type of reasoning applied to Wickard, is impeccable. (I.e. it’s not formally impeccable, indeed in formal terms it is wrong, but it is no more wrong than is the Constitutional construction in Wickard.)
As to the Fed’s requirement of citizens to purchase anything, that poses what may very well be the most trenchant and the most critical legal question. It is why both Anonsters and Mark Hall above are wrong (who may even be the same person). The legal question applied to forcing virtually ALL CITIZENS – to force them to purchase a product, has perhaps NEVER been answered in the courts. Hence when Anonsters and Mark Hall suggest their side has already, or virtually already won, due to case law precedent, stare decisis, they are 100% wrong. (Not that that fact per se means they are wrong in terms of their ultimate prediction, but the basis or their reasoning is wrong, is certainly exaggerated. Not that Anonsters above uses “reasoning,” he uses sophistries and brute force forms of contempt, but that’s a different story, relating to tactics, relating to rhetoric and not legal reasoning per se. And obviously, stare decisis is not some simple, narrowly conceived ratiocination applied to prior case law. If it were, we’d still be enforcing and variously interpreting Dred Scott, Plessy, etc. in some type of simplistic, deductively applied fashion.)
March 28, 2010, 6:08 pmBill V says:
I wonder how the commerce clause became so misinterpretated. The main reason for the commerce clause was to prevent interstate war due to unregulated commercial warfare, States after the American revolution passed laws that directly interfered with commerce such as taxes, trade laws and port fees, now that they lost the major trading partner England.
As Hamilton argued “The unbridled spirit of enterprise would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and war”
March 28, 2010, 8:24 pmThe Commerce Clause was only drafted to grant Congress the power to craft a coherent national trade policy. It was only intended to be used to restore and maintain viable trade among the States, and to prevent interstate war. way of preventing an interference with interstate and foreign commerce by the States. Most people conclude that commerce means an exchnage of one item for another in fact Professor Randy Barnett search the Federalist papers and could only find commerce defined as exchange or trade.
How could recent interpretations of the word commerce be twisted into all things under the sun labor, industry, agriculture and now health insurance? I suppose the framers should have taken Madison suggestion and used the word “trade” instead of “commerce”
In fact there is case law where the States rights were upheld against the commerce clause such as “Wilson v. Black Bird Creek Marsh Company” 27 U.S. 245
“we should feel not much difficulty in saying that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware is placed entirely on its repugnancy to the law to regulate commerce with foreign nations and among the several States, a power which has not been exceeded as to affect this question.”
and again in “New York v. Miln” where the court decided”
“We shall not enter into any examination of the question whether the power to regulate commerce be or be not exclusive of the states, because the opinion which we have formed renders it unnecessary: in other words, we are of opinion that the act is not a regulation of commerce, but of police; and that being thus considered, it was passed in the exercise of a power which rightfully belonged to the states”
Future in McCulloch v. Maryland
Justice Marshall read on the Necessary and Proper Clause
“Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution… [or] pass laws for the accomplishment of objects not entrusted to the government,” the Court also said that such laws would be struck down.
Taking all the earlier rulings in mind and why the commerce clause was needed in the first place to regulate the commercial rivaly between and among the states. Would one not conclude that the Wickard case is based on bad law that expanded the meaning of the word commerce? Under the Wickard test then what rights do states have to pass thier own flavors of Health Care reform?
Michael B says:
Wickard, I believe, is based upon fatally flawed reasoning as such – a certain type of rationalized juridical cum social/political power grab – more than any fatally flawed stare decisis rationale as such.
My purpose in articulating specific and even narrow aspects of cases above, such as United States v. Lopez (1995), Schecher Poultry Corp. v. United States (1935), Railroad Retirement Board et al. v. Alton R. Co. (1935) and McCulloch v. Maryland (1819) and one or two others was to line out some perfectly reasonable Constitutional constructions, as can be responsibly conceived from the point of view of original meaning. Similarly, Lochner was mentioned because it is the most egregious case in the current lineage of what has come to be accepted precedent.
(“I believe” meaning as I understand it, as a lay person.)
March 29, 2010, 5:54 pmHere Come the Lawyers, Part 2 says:
[...] Somin also had a helpful initial post on the lawsuits I referenced in my first [...]
March 30, 2010, 3:03 pmThe Volokh Conspiracy » Blog Archive » Standing and Ripeness Issues in the Lawsuits Against Obamacare says:
[...] is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the [...]
April 2, 2010, 2:15 amThe Volokh Conspiracy » Blog Archive » Standing and Ripeness Issues in the Lawsuits Against Obamacare says:
[...] is the first in my projected series of posts on issues likely to arise in the various lawsuits challenging the constitutionality of the Obama health care bill. To briefly recap, the lawsuits in question are one filed by 13 state governments challenging the [...]
April 2, 2010, 2:15 amPajamas Media » Is the Individual Mandate ‘Severable’ from the Rest of ObamaCare? says:
[...] general for the state of Virginia. The Thomas Moore Law Center (TMLC) has also filed suit on behalf of individuals who refuse to purchase health insurance. In the linked posting, Ilya Somin of the Volokh Conspiracy [...]
April 7, 2010, 2:46 am