Posted on 4/7/2010, 2:58:49 AM by mrreaganaut
Much has been made of several states suing the federal government over the passage of ObamaCare. The argument is, essentially, that the new law violates the 10th Amendment and infringes on the "commerce clause" of the Constitution. In this article, I will argue that this approach by the states will probably fail (in and of itself) -- but that the suits brought by the states could play a role in a more comprehensive strategy to challenge the constitutionality of ObamaCare.
(Excerpt) Read more at americanthinker.com ...
Legal analysis ping!
Hmmmm, I thought the RATS were saying this was Constitutional because of the Commerce clause. IMHO the Constitution trumps the Commerce clause. You can’t force people to buy something. I think the states are drawing a line in the sand and saying not more.
Not mention here is this act, passed during the Clinton administration where any unfunded mandate costing $50M or more ordered by congress for a state or business to follow must go through the CBO (congressional budget office) to be evaluated and monies set aside for its funding for approval by vote.
But UFMA has so many exceptions in it that it would take a constitutional lawyer capable of aruging before the Supreme Court, which is where this is going, to explain it.
Much of the Healthcare act has these mandates in it. When these birds drafted this bill they did take some of those exceptions into consideration. To get a gist of what the bill covers
http://www.freerepublic.com/focus/f-news/2481726/posts
note the comments from members that follow particularly by the respondents who are lawyers commenting about taking this thing into court when comparing it with the language of the Healthcare Reform Act. The current comments (past court rulings etc) are here
http://www.gao.gov/new.items/d04637.pdf
The Constitutional Initial Point is becoming popular....finally.
It is a sad state when the obvious enumeration clauses are violated yet the courts have consistently trumped enumeration with their radical interpretation of the commerce clause. Everything is a servant now to that one clause.
What would that be?? I am really interested.
The commerce clause is part of the Constitution (Article I, Section 8, Clause 3). “You can’t force people to buy something” only lasts until a federal judge finds that not buying insurance is an action that in the aggregate affects interstate commerce. This finding stands unless the judge is found by a higher court to have abused his discretion in making the finding. In its form, the commerce finding would be one of fact, to which higher courts normally defer.
The 10th Amendment is still part of the Constitution, though it has been generally neutered by commerce clause cases. The bright spot is that current Court members do remember the 10th, and have struck down laws as stretching the commerce clause too far.
Thank You for the update.
What would that be?? I am really interested.
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Yeah, counselor, enlighten us, please.
how about in English for the rest of us. LOL.
His hypothetical example is: “Large businesses are sued by their workers (and retired workers) because the business must violate existing contracts for medical services for its workers and retirees because of ObamaCare.”
As I said, he doesn’t explore it, but the idea is that ObamaCare violates the contracts clause (Article I, section 10, clause 1) prohibiting laws “Impairing the obligation of Contracts.” Hopefully, someone will write an article on this argument against ObamaCare, too.
I’m not familiar with ‘Constitutional Initial Point’ so I’ll go to ‘initialpoints.net’ as you recommend.
In googling ‘Constitutional Initial Point’; I found you were mentioned on DU yesterday. Congrats.
ping for later read.
Perhaps I should have mentioned that the courts have NEVER before found that NOT buying something affects interstate commerce. It would be an noteworthy (and vulnerable to challenge) expansion of legal precedent. The shock to the conscience of such a commerce clause claim is the heart of the 10th Amendment challenge, and I don’t dismiss it as readily as the author, Mr. Anderson.
thank you, my love. Miss you.
Wow! Thanks for the info!!!
I'm no legal expert, so maybe this doesn't (quite) count, but it's pretty darn close. I read Thomas Sowell's Intellectuals and Society recently, wherein he describes abuse of the Commerce Clause including an example where the court ruled that a guy growing his own wheat for his own consumption decreased the demand for wheat on the open market, hence the feds had the authority to regulate his production.
Dude, read the article, THEN comment.
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