Day Two: Is the Mandate Constitutional?

Townhall.com ^ | March 27, 2012 | Kate Hicks

[wayoverontheright]

Wouldn’t a simpler, more powerful argument take advantage of the fact that the act’s administrators have seen fit to give exemptions to certain favored entities, and that the rest of us thus incur injury under equal protection statutes?

It certainly gives any of us standing to go before the court, and the exemptions themselves essentially refute the government’s arguments for establishing the mandate in the first place.

By arguing under equal protection the government would be forced to decide between NOT exempting the favored constituencies, or ditching the mandate. If the favored ones’ exemptions were rescinded, an unpopular law would become even more unpopular.

Maybe this should be our back-up plan if the mandate is upheld.

[USS Alaska]

Roscoe Filburn was a wheat farmer, whose farm exceeded a production quota set by the government during the Great Depression.

The whole thing fell apart when the gummint "set a production quota for wheat".

[relictele]

the government hasn’t been able to name a single limiting principle to this power when it’s been put on the spot

Sadly, this is true of every law, agency and enforcement action. Even more sad, most laws don't get this kind of scrutiny.

[Pollster1]

If the Supremes rule that, "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" gives Congress the power to compel United States citizens to purchase a product they do not want, then the United States of America is dead, and we should refer to ourselves as "subjects" of a tyrannical government, not as "citizens" of a government of the people, by the people, and for the people. We either have the rule of law or we are facing the rule of force. I'm not sure that limp-wristed liberals want to try to challenge real Americans with force.

We will lose if we base our argument on common law and federal codes that duress makes a contract invalid. The laws on duress specifically refer to "unlawful" actions that compel another to enter into a contract. Since ObamaCare is the law of the land, its threats that compel citizens to enter into a contract against their will are not technically duress. Under common law, one can be forced to enter into a harmful contract if the government uses a law as compulsion, and that government action does not qualify as duress that would void the contract. The real question is whether this legal compulsion is constitutional, and the answer is very clearly that this is far outside the proper scope of federal action authorized by the Commerce Clause.

Note: RomneyCare is constitutional within one state, since it is a state action rather than a federal action, and the MA constitution permits such actions. I will never again live in MA, both because of RomneyCare and because of their gun laws, but they have the right to pass a health insurance mandate if they so choose (their gun laws are a violation of the Second Amendment, but that's another discussion).

[Victor]

"...I would like them to rule that my mandate to participate in social security is unconstitutional too.."

Alas, this is the part that bothers me the most. There is precedent, the SCOTUS ruled way back that SS mandate was OK.

I am worried even about our *conservative* justices seeing this, and deciding that Obamacare is OK, too...

[andyk]

The defense against this point is, of course, that healthcare is "different,"

Yes, and that defense just grates on me. The constitution is not written to know about healthcare vs the carriage industry - it knows about power and jurisdiction. The fedguv either has jurisdiction to reach into our private lives and control our personal decisions, or it does not. I vote with the latter, but those days are long gone.

[Little Ray]

In a rational nation, food, shelter, education, and health care are NOT rights. No one has ANY right to ANYTHING for which someone else must pay.

[MNJohnnie]

Interstate commerce clause grants

Another example of the stupidity of the supporters of this law. Health Insurance is IN STATE commerce. You cannot buy it across state lines. You must buy it from a state approved Health insurance plan

[MNJohnnie]

compelling national interest against the potential for abuse of power

Really, really pathetic that supposed "Conservatives" are buying this Leftist BS.

There is NO compelling national interest in favor of Obama-care.

That claim is manufactured PR hype without a shred of rational, factual accuracy. The notion that Obama care is an attempt to "Control Heath care costs" is pure nonsense. It a manufacture lie being pushed to sell an unnecessary, blatant usurpation of individual liberty by the power mad progressive fascists in the political class.

[onyx]

Listening now from my comfy couch

[redgolum]

I think your right, but I am not sure. Striking the mandate down will open up an interesting can of worms.

[Georgia Girl 2]

The mandate pushes the commerce clause way beyond anything it was ever intended for. Striking it down should be a no brainer. If the government can force you to purchase health insurance it can force you to buy a Chevy Volt. There would be no end to it.

[hinckley buzzard]

Well, lets hope so. The individual mandate is crucial for funding reasons. Without it, the rest of the scheme can't be paid for without drastic politically suicidal measures. I have read too that the justices will have had their research done by now, and in oral argument they seek only to help clarify and write their opinions.