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So Much For the Commerce Clause Challenge to Individual Mandate Being “Frivolous”
The Volokh Conspiracy ^ | 7/18/10 | Randy Barnett

Posted on 07/18/2010 10:57:58 AM PDT by BCrago66

Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as “frivolous”? Well, as Jonathan notes below, the administration is now apparently telling the New York Times that the individual insurance “requirement” and “penalty” is really an exercise of the Tax Power of Congress.

"Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations."

Let that sink in for a moment. If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory? Maybe the administration lawyers confronted the inconvenient fact that the Commerce Clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a “penalty” enforced by the IRS. So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.

(Excerpt) Read more at volokh.com ...


TOPICS: Constitution/Conservatism; Front Page News; Politics/Elections
KEYWORDS: commerceclause; constitution; healthcare; obama; obamacare; romney; romneycare; socializedmedicine

1 posted on 07/18/2010 10:58:01 AM PDT by BCrago66
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To: BCrago66
the individual insurance “requirement” and “penalty” is really an exercise of the Tax Power of Congress.

As I once heard a judge say to a quibbling lawyer: 'No matter how thin you slice it, it's still baloney."

2 posted on 07/18/2010 11:01:16 AM PDT by BenLurkin (Will must be the harder, courage the bolder, spirit must be the more, as our might lessens.)
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To: BCrago66

What kind of tax is it? If you have no income nor property what can they possibly base the tax on? Life itself? Maybe one has no right to live unless one is paid up on his life tax.


3 posted on 07/18/2010 11:06:47 AM PDT by badgerlandjim (Hillary Clinton is to politics as Helen Thomas is to beauty.)
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To: BCrago66
Reversing course and calling it a tax attests to the scorn with which the fascisti in Washington hold the Constitution. They may avoid getting beat by the Commerce Clause story, but they're going to run straight into the "equal protection" clause in the Bill of Rights.
4 posted on 07/18/2010 11:07:37 AM PDT by hinckley buzzard
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To: BCrago66

Here’s a site containing links to the health-care lawsuit complaints and US Motions to Dismiss:

http://acalitigationblog.blogspot.com/

And here’s a US Motion to Dismiss in the Virginia suit, arguing that both Congress’ Taxing power and the Commerce Clause ground the individual mandate:

http://www.oag.state.va.us/PRESS_RELEASES/Cuccinelli/22%20Virginia%20-%20memo%20in%20support%20of%20motion%20to%20dismiss.pdf

The tax argument is pursuant to the Constitution’s General Welfare Clause:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

U.S. CONST., art. I, § 8, cl. 1.


5 posted on 07/18/2010 11:13:01 AM PDT by BCrago66
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To: BCrago66
judicially unprecedented

(gasp)The "U" word....

6 posted on 07/18/2010 11:13:13 AM PDT by EGPWS (Trust in God, question everyone else)
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To: BCrago66
But the argument is far from over.

That for the most part is by design.

It's an intentional camels nose to strike an argument only to gray up what is already set in stone in the first place.

7 posted on 07/18/2010 11:17:53 AM PDT by EGPWS (Trust in God, question everyone else)
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To: badgerlandjim
If you have no income nor property what can they possibly base the tax on? Life itself?

Well, soon we will be paying a tax on exhaling....

8 posted on 07/18/2010 11:19:49 AM PDT by EGPWS (Trust in God, question everyone else)
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To: EGPWS

After reading the entire post, I got to thinking that the GOP better be on guard that the Dems don’t try to ram through - either in the next few weeks or in the lame duck session - an Amendment to ObamaCare adding “findings” that the mandate is justified by the Taxing Power, or changing some of its features to make it look like a tax.

If the Dems try this, it won’t be a stand-alone bill. They’ll add it to some “save the children” or unemployment extension bill, or slip it into some omnibus 2500-pager that no Congressman reads.


9 posted on 07/18/2010 11:27:20 AM PDT by BCrago66
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To: BCrago66

I wrote this in another thread but going through the DOJ’s arguments, they’ve based their case upon those precedents that must stand in order for them to continue their agenda. If the courts go for this, it will be another precedent that will eventually lead to more mandates. If the DOJ’s arguments fail, the court may decide to overturn a previous precedent and the basis for many federal laws could be left hanging.

Obama is leading with his chin.


10 posted on 07/18/2010 11:44:15 AM PDT by MontaniSemperLiberi
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To: badgerlandjim
"what can they possibly base the tax on? Life itself?"

Listen up CO2 generator....

Let me make this clear....

Your CO2 co-mingles with all the other peon's CO2 and can easily make it across state boarders....

So you are subject too and taxed upon your interstate commerce in C02....cache

11 posted on 07/18/2010 11:59:44 AM PDT by spokeshave (mess + 0bama = quagmire recession)
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To: badgerlandjim
"what can they possibly base the tax on? Life itself?"

Listen up Mr. CO2 generator....

Let me make this clear....

Your CO2 co-mingles with all the other peon's CO2 and can easily make it across state boarders....

So you are subject too and taxed upon your interstate commerce in C02....OK?

12 posted on 07/18/2010 12:01:09 PM PDT by spokeshave (mess + 0bama = quagmire recession)
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To: spokeshave

...and don’t forget the double post tax.


13 posted on 07/18/2010 12:02:20 PM PDT by spokeshave (mess + 0bama = quagmire recession)
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To: BCrago66

I guess if you go to Harvard Law, like Mitt( RomneyCare ) and Obama, you learn a different Constitution.


14 posted on 07/18/2010 12:19:04 PM PDT by Leisler ("Over time they create a legal system that plunders and a moral code that glorifies it." F. Bastiat)
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To: BCrago66

Do I get to punch the first person who calls this crap a tax credit for people who acquire health care insurance?


15 posted on 07/18/2010 12:32:19 PM PDT by Darth Reardon (Im running for the US Senate for a simple reason, I want to win a Nobel Peace Prize - Rubio)
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To: MontaniSemperLiberi

Lets hope the Judges Remember the State Of the Union Moment by Obama when they hear the Case


16 posted on 07/18/2010 12:36:41 PM PDT by ballplayer
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To: BCrago66; All
Obamacare Class Action Lawsuit (www.obamacareclassaction.com)

"The purpose of this lawsuit is to reverse Supreme Court precedent related to the Commerce clause and thereby overturn Obamacare. The Supreme Court has historically erred in its interpretation of the Constitutional role of the Federal Government. Recent Supreme Court rulings hint that they may be willing to take another look at Commerce clause precedent. Obamacare is so over reaching and so onerous, that it must either be repealed in Congress or struck down in the courts. We must fight this on both fronts. This is our historic opportunity to reverse America’s trend toward Socialism by overturning this unconstitutional precedent.

If you are a US citizen and agree with the goal of this lawsuit, please join us. If you have concerns about joining, please review the FAQs for more information. Every person we add strengthens the voice of "We the People".


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17 posted on 07/19/2010 7:57:30 AM PDT by EdReform (Stop Obamacare - Join the Obamacare Class Action Suit: www.obamacareclassaction.com)
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To: BCrago66
So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.

Not unprecedented: people who do not have insurance children pay a a tax penalty as compared to those who do have insurance children.

Watch, they'll restructure it as a "tax credit for approved health insurance" after increasing total tax rates, instead of a "penalty" on current tax rates, and it will go through with flying colors.

18 posted on 07/19/2010 8:04:21 AM PDT by mvpel (Michael Pelletier)
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To: EGPWS

That would be the Individual Carbon Tax.


19 posted on 07/19/2010 9:27:41 AM PDT by massgopguy (I owe everything to George Bailey)
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To: BCrago66
"the administration is now apparently telling the New York Times that the individual insurance “requirement” and “penalty” is really an exercise of the Tax Power of Congress."

That's how they got the unconstitutional Social Security "tax" passed. Along with the threat of stacking the Supreme Court.

20 posted on 07/19/2010 9:28:38 AM PDT by avacado
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To: mvpel

It’s not unprecedented. In Reynolds vs United States, the SCOTUS ruled that coercing an individual to enter into a contract violated the “wheel of servitude” as defined by the 13th amendment.


21 posted on 07/19/2010 9:29:53 AM PDT by massgopguy (I owe everything to George Bailey)
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