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March 01, 2012

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narciso

You know even if you bought it for her, Warren would never get a clue

Ignatz

It's unfortunate that the premise that the Federal government has the power to tell insurance companies what they must cover is an accepted fact of life.

NK

The Modern Dem party is a criminal conspiracy of lies deceit and fraud. Outlandish as that sounds... it's true. I believe the Blunt Amendment is the identical language as the conscience exemption in 1994 HillaryCare.

Ig-- actually the Congress does have the power under the commerce clause to regulate health policy coverage provisions... good idea? that's a completely different question.

Ignatz

--Ig-- actually the Congress does have the power under the commerce clause to regulate health policy coverage provisions... good idea?--

Well, we're back to the question of what the law was designed for and what it has become.
It was designed to prevent states from impeding commerce between themselves.
It has become a gigantic power grab in which congress has been given powers by the court never intended for it.
That is what is unfortunate.

Rick Ballard

"To Be Blunt, This Is Deceptive And Misleading"

Nice pun. It's 'dog bites man' on the whole though. The NYT and the rest of the maintrickle media exist to deceive and mislead and they move ever closer to disproving the "no one ever went broke underestimating the intelligence of the average American" adage.

The 'truth' printed by Times would fit on a small post card.

AliceH

Any one know about the Congressional Review Act? David McIntosh, a former Indiana Congressman, writes in NRO that the Act can be used to nullify the mandate in a more expedited manner than introducing new legislation. From the article LUN:

The Congressional Review Act (CRA), which I authored while serving in Congress, gives legislators 60 days to introduce Resolutions of Disapproval to nullify a rule after it has been published. The Resolutions of Disapproval enjoy expedited procedures and therefore serve as the perfect tool for Congress to move expeditiously to make Team Obama’s unconstitutional rule history. The law allows 30 senators to discharge any committee action and bring it to the Senate floor, where it can be passed with a majority vote after no more than five hours of debate.

bgates

Under the Supreme Court's interpretation of the Constitution, Congress has the power under the commerce clause to dictate health insurance particulars; there's a case to be made that the only restriction on Congress' power under the commerce clause is it can't erect a cross on public land.

Under a less strained interpretation, Congress has the power to break up trading blocs and boycotts among the several states, and that's about it. It's the old question of normative v descriptive.

Jim,MtnViewCA,USA

Wait...Eliz Warren would need a subscription to get google search services?
Man, I get mine for free! I guess the government must be paying for it? Oh wait, it's provided by free enterprise. That must be why Warren and the NYTimes don't use it. They don't want to be responsible for Capitalism's success...

Ignatz

I see bgates and I are on the same wavelength.
He should probably be worried.

Jim Ryan

If you read the chapter on the Commerce Clause in The Dirty Dozen, you have no idea why the SCOTUS would deem the Obamacare mandate unconstitutional if the issue turns on Commerce Clause grounds. Precedent has it that the feds can regulate anything at all if doing so would have an effect on interstate commerce. The SCOTUS has decided that the feds can stop you from growing wheat for personal consumption. The SCOTUS has decided that they can stop you from growing marijuana for personal consumption. Therefore they can certainly require you to buy health insurance. There is no relevant difference between the three cases.

If the justices wish only to be consistent with case law, the decision should be unanimous that the mandate does not exceed the Commerce Clause's scope. If the justices wish only to stick to the Constitution, they should find the mandate exceeds that scope.

That's my layman's view anyway. Can any of you legal eagles correct me on this?

NK

JimR-- you misstate the mandate constitutional issues. read up on the current consolidated appeals regarding the mandate and the Commerce Clause and taxing powers.

Not Sara

Blunt amendment just defeated in the Senate.

Jim Ryan

Thanks, NK.

Rick Ballard

AliceH,

I didn't know about it. How would you see it playing out politically? It appears that oral argument begins March 26. The maintrickle news will be jammed full of misinformation on Obamacare from March 20 forward. The shock and horror over next Friday's employment report will fill a lot of column inches beginning on the 9th and Super Tuesday is on tap from now until the 8th.

I don't believe Boehner/McConnell will touch bringing that act into play. What would they achieve?

NK

RickB-- February BLS Payroll/Household reports? I don't think they'll be dramatic either way-- Jobless claims have settled in at 355K rather than 390K during the Fall 2011 -- not good, but not worsening unemployment, and the BLS 'birth-death' model will probably add several hundred thousand phantom jobs to keep the unemployment rate at or below 8.5%. If you think 'Bam re-election is skewing the results, the place to look is the worker participation rate continues to decline, then you can make a case 'Bam is fudging the rate. Starting in July the BLS 'seasonal' adjustments will start to go negative-- IF 'Bam isn't fudging numbers.

Frau Trauer

And as if things could not get worse, Andrew McCarthy reports that Obama may release the Blind Sheikh in a prisoner exchange for our citizens being held in Egypt. WTFrack?
LUN

AliceH

RickB: I have no idea. I've got a serious mental block on this whole thing. I've given great effort to trying to understand the justification for the mandate, but I have failed. I cannot fathom how the mandate could be seen by anyone as being consistent with existing laws and jurisprudence (not just 1st amendment, but also the Religious Freedom Restoration Act of 1993), so it's difficult to figure out what counter-move might be most efficacious. How does one defeat a fantasy?

I think the Republicans are playing PR right now, and hoping for a favorable ruling from the SC in addition to regaining the Senate and Presidency. That is, the Blunt amendment was not expected to fly, but they had to do it to stake out a clear position. Why they couldn't - or won't - try the CRA approach... beats me. I'm no pundit, that's for sure.

Danube of Thought

There is no relevant difference between the three cases.

The difference being claimed by the opponents is the difference between stopping you from doing something and making you enter into a contract. We'll see whether the Court buys it. But it is clear that the power has never been used for the latter purpose.

Jim Ryan

DoT, I see the difference but I don't see how it is a relevant one. The SCOTUS was in effect forcing the wheat farmer to buy wheat instead of growing his own. Same for the marijuana case (although with spectacular inconsistency in that it would have been illegal to buy the marijuana.) Sure, it is not the same as forcing them to buy wheat or pot, but the relevance of the difference is vanishingly obscure if it exists at all.

bgates

Obama may release the Blind Sheikh in a prisoner exchange for our citizens being held in Egypt.

That's strange. Why would the mild-mannered Facebook employees who I was told form the backbone of the Egyptian government want anything to do with a convicted terrorist?

AliceH

JimR: The wheat farmer and the marijuana grower are not required to buy anything - they can still choose to opt out without government imposed penalty.

AliceH

In my own, humble, IANAL opinion... "...in effect... has got to be one of the grayest of all gray phrases in interpreting the law.

Threadkiller

Apology not accepted:

(CBS News) KABUL - Two U.S. troops have (sic) were shot dead by three Afghan gunmen Thursday at their base in the southern Kandahar province, and two of the three shooters were Afghan National Army soldiers - another blow to a U.S. strategy pinned on direct partnership with Afghan forces.

The two Afghan troops who opened fire were killed by U.S. troops, and a third shooter, a teacher at the joint U.S.-Afghan base, was wounded.

SNIP

From last night:

(AP) -- President Barack Obama says his apology to Afghan President Hamid Karzai (HAH'-mihd KAHR'-zeye) after U.S. forces accidentally burned Muslim Qurans has "calmed things down."

But Obama tells ABC News that "we're not out of the woods yet."

http://www.freerepublic.com/focus/f-news/2852999/posts

Frau Pfadfinderin

...But Obama tells ABC News that "we're not out of the woods yet."

Since he was never a Boy Scout, chances are he does not have the skills.

Ignatz

--Apology not accepted:--

But think how many more would have been killed had he not grovelled.
He may have saved as many as 3 million.
He can save lives but I don't think they have quite got to the point where they claim he can create them yet.

Captain Hate

And as if things could not get worse, Andrew McCarthy reports that Obama may release the Blind Sheikh in a prisoner exchange for our citizens being held in Egypt.

To Hell with that. The "citizens" are Ray LaHood's punk kid and his fellow deadbeat "activists" who were making pests of themselves. They weren't there representing you, me or any other taxpayer and if LaHood wants to do something on his own for failing to teach a reasonable sense of responsibility to his kid, have at it. If they want they could send the blind POS's severed head, but I doubt that would happen. But it might prevent future problems.

Dave (in MA)

Citizens being held in Egypt, you say? Surely you're mistaken. I haven't heard anything about this in the MSM.

Jim Ryan

Alice, touche; "in effect" is slippery-speak. However:

The wheat farmer and the marijuana grower are not required to buy anything - they can still choose to opt out without government imposed penalty.

Yes, that is the difference. But why is it relevant? The reasoning behind the wheat and pot decisions was that the government gets to do whatever is necessary to achieve its regulatory goals. On that reasoning, the difference is not relevant. The SCOTUS didn't discover a Constitutional right to grow wheat or pot. It won't discover a Constitutional right to refrain from buying health insurance. So, there is no relevant difference with respect to the text of the Constitution. Is there a relevant difference in some other respect?

Dave (in MA)

Apparently 7 of them were just released.

clarice feldman

Jim, go to Volokh and read Andy Barnett on the subject. He's the best.

PCachu

Ignatz @ 2:09pm: So, this would be using the Obama "Lives Saved Or De-Endangered" metric?

Jim Ryan

Thanks, Clarice. You're the best. (She means Randy, folks.)

AliceH

The reasoning behind the wheat and pot decisions was that the government gets to do whatever is necessary to achieve its regulatory goals.

Both the above are premised on a party having chosen to acquire a commodity, and from that point forward, the SC determined that regulations on how, when, where, etc. applied, and further that those regulations prohibited self-supply.

Obamacare is different because a party does not initiate anything beyond being born. If one is born, one must acquire health insurance or face a penalty. That is not a small distinction. There is no precedent for interpreting the commerce clause to apply to involuntary -- coerced -- transactions.

But really I should just say ditto to what Clarice said -- read those Volokh guys. They actually went to school for this.

Greg Q

"More than 20 national organizations weighed in on Tuesday against Mr. Blunt’s proposal. The groups include the March of Dimes, Easter Seals"

Good to know. So I'll never give another penny to the March of Dimes or Easter Seals.

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