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White House Shifts Legal Gears as ObamaCare Heads to Supreme Court
New American ^ | 3/20/12 | Bob Adelmann

Posted on 03/20/2012 7:58:08 AM PDT by Mikey_1962

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To: cuban leaf
I almost laughed out loud at that one. Preventing someone from doing something and FORCING someone to do something are two completely different things.

Two appeals court justices, both friends of Scalia, cited his opinion in Raich to uphold Obamacare:

Both Silberman and Sutton cited Scalia’s opinion in 2005 upholding strict federal regulation of marijuana in the case of Angel Raich, a Californian who used home-grown marijuana to relieve her pain. “If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption,” Sutton wrote, “it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”

http://mobile.latimes.com/p.p?a=rp&m=b&postId=1165037.

21 posted on 03/20/2012 8:58:54 AM PDT by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
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To: cuban leaf

“I really can’t believe a single judge could side with Obama on this if they have a shred of respect for the spirit of the Constitution of the US.”

You have identified the problem, four of them don’t, and the others waiver. On top of that, they view The Law as an entity in and of itself, rather than a vehicle for ordering the country’s processes. I never cease to be amazed at how willing they are to continue to sidestep dealing with the critical issues of our time. You just have to wonder how long they can fail to deal with the 2A head on. They are all less than adequate.


22 posted on 03/20/2012 9:00:49 AM PDT by vette6387
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To: cuban leaf

“I really can’t believe a single judge could side with Obama on this if they have a shred of respect for the spirit of the Constitution of the US.”

You have identified the problem, four of them don’t, and the others waiver. On top of that, they view The Law as an entity in and of itself, rather than a vehicle for ordering the country’s processes. I never cease to be amazed at how willing they are to continue to sidestep dealing with the critical issues of our time. You just have to wonder how long they can fail to deal with the 2A head on. They are all less than adequate.


23 posted on 03/20/2012 9:02:45 AM PDT by vette6387
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To: Beagle8U
Gonzales vs. Raich applies to ANY product or service. It has nothing to do with how great the chances are that a given product or service has of being involved in interstate commerce. It effectively establishes that any product or service is "never more than one step away from interstate commerce".

There is no chance that lack of health Ins will.

Wrong, there is EVERY chance that lack of Health Insurance will end up in Interstate Commerce! (At least that is what the adminsitration will argue!)

The Adminstration is arguing that your NOT purchasing insurance adversely affects the price paid by everyone else in the country and therefore the compulsary clauses are necessary and proper to fulfill the government's duties under the commerce clause.

24 posted on 03/20/2012 9:02:55 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Beagle8U
Still very different. There is a very very good chance that medical pot will, and does, end up in interstate commerce. There is no chance that lack of health Ins will.

So? According to Scalia:

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

Scalia concurring in Raich

25 posted on 03/20/2012 9:06:36 AM PDT by Ken H (Austerity is the irresistible force. Entitlements are the immovable object.)
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To: AtlasStalled

They won’t address 0bama’s eligibility because of their fear of social unrest.

Perhaps we need to be a little more “unrestful” about this.


26 posted on 03/20/2012 9:06:36 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: An.American.Expatriate

Madison said it before ratification, that if, in his case, the General Welfare clause was interpreted to justify anything, then the rest of the constitution was moot.

Now we have, in addition to the General Welfare clause, the Commerce Clause, and now the “Necessary and Proper” clause being used to circumvent the very essence of the Constitution - that of limited general government.


27 posted on 03/20/2012 9:10:28 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: MrB
Now ...

Now? That boat left port a very long time ago ...

28 posted on 03/20/2012 9:18:59 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Mikey_1962
Jefferson, Patrick Henry, and other Anti-Federalists saw this coming: I hope our courts will never countenance the sweeping pretensions which have been set up under the words “general defence and public welfare”. These words only express the motives which induced the Convention to give to the ordinary legislature certain specified powers which they enumerate, and which they thought might be trusted to the ordinary legislature, and not to give them the unspecified also; or why any specification? They could not be so awkward in language as to mean, as we say, “all and some”. And should this construction prevail, all limits to the Federal Government are done away. This opinion, formed on the first rise of the question, I have never seen reason to change, whether in or out of power; but, on the contrary, find it strengthened and confirmed by five and twenty years of additional reflection and experience: and any countenance given to it by any regular organ of the government, I should consider more ominous than anything which has yet occurred. ~ Thomas Jefferson; letter to Spencer Roane, 1815.
29 posted on 03/20/2012 9:34:46 AM PDT by Spartan79 (I view great cities as pestilential to the morals, the health, and the liberties of man.)
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To: An.American.Expatriate

—Really? If you absolutely need tomatoes and the government prevents you from growing them yourself, are you not forced to purchase them? —

No. You have the right to go without them. Likewise with health insurance. I actually know someone that has no health insurance because they are so well off they can cover any health expense as you or I would cover an oil change or a new set of tires. Should they be required to purchase health insurance.


30 posted on 03/20/2012 9:42:06 AM PDT by cuban leaf (Were doomed! Details at eleven.)
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To: Mikey_1962
“ABC News/Washington Post poll taken in January showed that most of those polled think that ObamaCare, if implemented, will cost jobs, hurt the economy, and cost more than projected.” But most democrats are still willing to support the bill to show their support for Obama.
31 posted on 03/20/2012 9:46:03 AM PDT by mikemoose (Pray for the Unborn)
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To: Ken H

“it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”

Key word: Regulate.

Also, Regulate is very different from “mandate the purchase of insurance”.

I think very specific things are being argued in this case. It is ALL about requiring people, by simple virtue of being American, to buy something, and at the federal level. That a single judge would even consider to rule in favor of it stinks to high heaven.


32 posted on 03/20/2012 9:47:02 AM PDT by cuban leaf (Were doomed! Details at eleven.)
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To: cuban leaf

Nice way to avoid the question and the issues involved.


33 posted on 03/20/2012 9:47:58 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate
... lack of Health Insurance will end up in Interstate Commerce

Since health insurance is regulated by the states and cannot be purchased from an out-of-state insurer, I'm curious to know how whether or not I purchase health insurance can affect interstate commerce. Currently there is no interstate health insurance market, is there?

34 posted on 03/20/2012 9:48:25 AM PDT by Gee Wally
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To: Ken H

“it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care.”

Also, it is just an opinion. One I disagree with.


35 posted on 03/20/2012 9:48:32 AM PDT by cuban leaf (Were doomed! Details at eleven.)
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To: cuban leaf
Key word: Regulate.

Exactly. Regulate: to control or direct by a rule, principle, method, etc.

Also, Regulate is very different from “mandate the purchase of insurance”.

In what way? A mandate to do something is a regulation of that activity.

I think very specific things are being argued in this case.

Agreed, but you are ignoring the arguments and the precedents.

The administration is arguing that by NOT purchasing the service, you make it more expensive for all others (smaller pool sharing the risk) and thus you are adversly affecting commerce. Therefore they have the "right" to regulate. IOW, they have moved the goalposts and have a good amount of precedent on thier side, Gonzales vs. Raich being one of them.

We can argue all we want about whether the arguments meet original intent, but that is moot as original intent no longer applies to anything regarding the commerce clause - the courts having eviscerated it long ago.

36 posted on 03/20/2012 9:59:09 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate; Beagle8U; MrB; Spartan79
You might find this FR post interesting.
37 posted on 03/20/2012 9:59:28 AM PDT by Jacquerie (No court will save us from ourselves.)
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To: Gee Wally
I'm curious to know how whether or not I purchase health insurance can affect interstate commerce.

... Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. Scalia in Gonzales vs. Raich.

Currently there is no interstate health insurance market, is there?

Under ObamaCare there is ....

38 posted on 03/20/2012 10:04:01 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: An.American.Expatriate

I get what you are saying, but my point is that it is the same kind of twisting of logic that allowed a college kid back in the early 70’s to write a term paper proving black is white.

You could use that line of thinking, twisting as you see fit, to allow literally anything.

Which, I confess, is what I fear and why this case is such a big deal to me. If they side with Obama, the US is officially finished and the constitution is LITERALLY (not “mostly) not worth the paper it’s written on.

At that point, it is every man for himself.


39 posted on 03/20/2012 10:19:12 AM PDT by cuban leaf (Were doomed! Details at eleven.)
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To: An.American.Expatriate
Please stop to focus on necessary and proper.

For instance, the Constitution of 1787 allowed for direct taxation. Congress could have passed a tax of $5 per person to pay the national debt at the time, for it was clearly necessary. Congress could NOT issue general warrants for federal tax collectors to enter each and every home in order to collect the tax because the IVth Amendment prohibits general warrants.

Even if Obamacare is necessary to implement an enumerated power (it isn't), it must be proper. That means it may not violate another portion of the Constitution, which it does, the Ninth Amendment.

It is a two fold test, both necessity and propriety are required.

Here is a thorough analysis of the necessary and proper clause by Randy Barnett.

40 posted on 03/20/2012 10:24:29 AM PDT by Jacquerie (No court will save us from ourselves.)
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