Why ObamaCare's Individual Mandate is Unconstitutional (Jones v. United States, 529 U.S. 848)

3/27/2010 | Brices Crossroads

[Brices Crossroads]

Without the individual mandate, it can neither raise the money, nor control the market. It can be defunded, in favor of restoring the cuts to medicare, and left to die on the vine.

When Palin becomes President, real health care reform (tort reform, portability and market based solutions) can begin, and a phase out of medicare can be launched in which people under 40 can opt out of it in favor of buying their own health insurance for 65+. This mess Obama created can be fixed, but the Court must do its part and teh electorate must do so as well. Seniors have got to wake up and sweep out these creeps.

[ForGod'sSake]

From a layman's point of view a clearer definition of "interstate commerce" would seem in order. For example, if I go to the hardware store and buy a widget that has been "imported" from another state or another country, am I engaging in interstate commerce? If not, is it because I'm a private citizen, or the end user?

What if I choose to build my own widgets for personal use? Would it make any difference if the materials I used were obtained locally or out of state? Now let's say I make such wonderful widgets that some of my neighbors have asked me to build widgets for them, and are willing to compensate me for my efforts. Do I come under interstate commerce yet? If I just happen to live near a state line and some of my neighbors actually live in an adjacent state. What then?

I suppose this actually points to the larger question, what exactly did the Founders have in mind when they spoke of interstate commerce. Because it seems to me the expansive interpretation by latter day courts is that sometimes virtually any commerce could be construed as interstate commerce. Something I haven't researched, but somebody no doubt has.

[ForGod'sSake]

I might add, that shyster dimocrats(but I repeat myself), by choosing sympathetic jurists have for decades been laying down a trail of precedent crumbs they presume to be followed by later courts. Bad business, but that’s their stock in trade.

[Stentor]

At that point, how am I not in a position of involuntary servitude?

I agree. The United States government alleges that it now owns our asses.

[Brices Crossroads]

“if I go to the hardware store and buy a widget that has been “imported” from another state or another country, am I engaging in interstate commerce? If not, is it because I’m a private citizen, or the end user?”

The short answer is yes. The transit of widgets from state to state can be regulated. Ditto the other hypos.

“What if I choose to build my own widgets for personal use?”

The answer is maybe. Wickard v. Filburn allowed a regulation prohibiting a farmer from growing wheat although he claimed it was for personal use, becasue there was no way to guarantee or verify that wheat, a fungible commodity, would not find its way into interstate commerce. This is basically the rationale of Gonzales which dealt with the “private” cultivation of marijuana for medicinal use.

The bottom line: The commerce clause is broad, which is why the health care legislation is not constitutionally DOA. But no Congress has sought, and no Court has yet approved, as a condition of citizenship, the power to REQUIRE an unwilling individual to engage in commercial activity. No court has ever held, and the definition of commerce does not contemplate, that inaction by an individual amounts to commerce, nor does it affect commerce. Commerce is voluntary activity, not voluntary inactivity. It is really as simple as that, and it is why I believe the Mandate is toast.

[rintense]

That’s another winner with this farce of a bill. Equal protection and no official state religion. By exempting two religions, he’s ‘endorsing’ them.

[Brices Crossroads]

“I might add, that shyster dimocrats(but I repeat myself), by choosing sympathetic jurists have for decades been laying down a trail of precedent crumbs they presume to be followed by later courts.”

Which is why Obama’s Supreme Court nominees must be opposed. If they are radicals (and they will be), they should be filibustered, delayed and blocked by all means. When the GOP retakes the Senate in January, the Majority Leader can and should refuse to bring them to the floor. If Stevens retires, the GOP should give Obama a list of GOP nominees from which he can choose (since Stevens was a GOP appointee) taken from the most conservative Circuit (the 5th). If he chooses one of them, then the nominee will be confirmed. If not, no vote. Don’t give him an inch. Total war.

[nathanbedford]

Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.

My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.

Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.

One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.

My point is that the likes of Justice Ginsburg takes a gun to a gunfight. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.

Thank you for inviting me to participate on a thread initiated with such a thoughtful essay.

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair. I fear that we can analyze a thread of Supreme Court cases on the commerce clause and we are but to be pitied like a neurotic housewife for trying to predict the future from the stars. To grope for another analogy, I fear conservatives on entering the Supreme Court are taking a knife to a gunfight.

My cynicism comes from a commonsense overview of the language of the Constitution. The founders, fearful of tyrannical government on the one hand (and equally fearful of its radical mob on the other hand) determined to establish a federal government with limited and divided powers and separated in power from powers which would belong to the states. So when the framers, aware of the self-defeating internecine commercial warfare between the former colonies of the government under the Articles of Confederation, wrote down those powers which would go to the federal government, they assigned commerce as they understood it to the federal government to manage.

Clearly, they never understood a farmer to be in interstate commerce and subject to congressional regulation who grew wheat purely for consumption on his own farm. That the Supreme Court could come to such a conclusion so obviously at variance with the idea of enumerated powers sets the whole Constitution at naught by the simple contrivance of inflating the notion of "commerce" among the states beyond all historical understanding and rational definition. Tack onto that the Necessary and Proper clause and you have intellectually come full circle to the place we are today where there is now virtually no limit to federal power.

One might well point to Justice Ginsburg, the archetypal statist whose brooding presence renders the idea of an impartial Supreme Court a mockery, and her opinion in which she seems to rein in the power of the federal government to control commerce. But consider that what she might well have done was to convert a probable 7 to 2 or 8 to 2 decision rendered on constitutional grounds undermining her leftist strategy to advance federal power through the commerce clause into a harmless 9 to 0 holding on statutory interpretation without constitutional significance. If that was what she accomplished, she acted in the best traditions of Abe Fortis who was sent to the court by Lyndon Johnson as an outrider to protect that flank.

My point is that the likes of Justice Ginsburg takes a gun to a legal debate. She is not open to honest intellectual debate about the true meaning of the commerce clause. She works backwards from a preconceived result and uses her immense intellectual capacity to rationalize that holding. There are at least five Justices who go into that courtroom willing to be persuaded to either side. But they are human, they might be persuaded against our vision and it only takes one of them to be so persuaded. Justice Kennedy, as history shows, is only too susceptible to that sort of persuasion. My point is that litigating in the Supreme Court is a little bit like waging a war against terrorists, we must get it right 100% of the time. We go in with an honest and open intellectual mindset which the other side sees only as naïve.

Of course we must fight the good fight and litigate the very best case we can but I am rapidly coming to the conclusion that the case is not won or lost on the briefs, or the facts, or the law, or even on the Constitution but on the nominating process. This is how we have come to the place where the Constitution means precisely the opposite of what the words say.A rational layperson would well look at this and say, if the federal government can control human behavior on this level why did the framers go to the trouble of enumerating powers and reserving the rest to the states and to the people? That ultimately is the question the Supreme Court should set itself to answer.

[ForGod'sSake]

Spot on. If conservatives are able to keep flame burning re the takeover of our market based ecomomy, and all that entails, even odds on taking over the senate.

Any thoughts on my questions in the previous post. Some legal eagles might fill a large gap in Freepers', or at least my understanding of the intent of the Founders concerning interstate commerce. Just a hunch but I doubt their intentions were as far reaching as some latter day "experts" have offered.

[eyedigress]

That is one concise post that points directly to the 10th amendment.

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.

[ForGod'sSake]

A rational layperson would well look at this and say, if the federal government can control human behavior on this level why did the framers go to the trouble of enumerating powers and reserving the rest to the states and to the people?

Indeed, count me in that number! To this layman, it begs the larger question, why bother with a Constitution at all if the feds can make it up as they go along?

[eyedigress]

I was ready to post something harsh. I will wait until everyone is ready to go.

[ForGod'sSake]

I suppose I’m as ready as I’ll ever be. I ain’t gettin any younger.

[eyedigress]

:>) It’s all about friends. Mine get new 2-ways this year.

[ForGod'sSake]

2-ways? Mirrors, whut???

[eyedigress]

Radios HR!

[ForGod'sSake]

DUH! ;^)

[eyedigress]

I’m an old tower climber as well. The IF can be disrupted like no-bodys tomorrow.

[ForGod'sSake]

Cool! Never cared much for heights myself. Seems like I get something akin vertigo when I get very more than about 15 - 20 feet off the ground. BTW, I’m sure you’ve seen the pic of the guys working on the antenna on top of the Empire State Building — camera aimed DOWN on them! I get the willies just looking at the pic!

[eyedigress]

I do too and need to have that framed large on my new wall. I had to tell the Army from time to time they were screwing my passages. They would switch gears and allow my work to continue. (BTW, You get credit for figuring out what goes on one of my blank walls, Thank You!)