Is There Any Limit To The Power Of Congress?

Ezra Klein, who is nobody's go-to guy on questions of Constitutional law, explains that the newly signed health care reform will probably survive challenges to the individual mandate.

Law prof Richard Esenberg is not so sure:

Still, the individual mandate may be different. Professor Barnett writes that "[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company." It's one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It's quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.

Some scholars and lawyers prefer to emphasize Congress' authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate "easy." For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. "The government can make you pay taxes," he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.

Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is, the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress' ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person's income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?

Since the topic is health, suppose the government legislated that all of us must submit to semi-annual weigh-ins, with testing for nicotine use and illegal drugs, subject to an income tax penalty for declining the test.  Suppose the Congress also mandated that we must sign a "Consent to Search" form allowing the Food Police to conduct snap inspections of our kitchens, in a zealous quest for excess butter and ice cream.  (As a sop to civil libertarians, information gathered by means of these drug tests and spot inspections can be used only for counseling, not criminal prosecution.)

So, my question to libs who love the mandate - would those logical, health oriented extensions of the mandate idea be constitutional?  If not, why in the world not?

Prof. Esenberg makes the same point but without my rhetorical overkill:

It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save some other constitutional restriction - it cannot require you to do - or prohibit you from doing.

I appreciate that many people - including most of my colleagues in the legal academy - see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won't.

Interesting - we are moving to a world where the only limit on Congress is its own sense of political expediency.

Comments

[peter]

It truly is amazing how the Constitution is in crisis, and most people have no idea. We took a wrong turn when we failed to elect Alf Landon, and failed to repeal Social Security.

[daddy]

"Is There Any Limit To The Power Of Congress?"

Only when its controlled by Republicans.

[Steve C.]

While I generally agree with Mr. Eisenberg, we've already seen with BRAC (McCain-Feingold) that the First Amendment of the Bill of Rights is not a bar to federal regulation of speech. So I don't hold out much hope of the remaining amendments being a restraint on federal power.

However, I do think even the Supremes might be reluctant to acede to this power grab. If the Congress can punish inaction, then what limits is there to federal power?

[Joe Y]

I think that when, "to promote the general welfare," the Congess:

- bans abortion

- outlaws pornography

- greatly expands the government's domestic powers in fighting terrorism and crime

there's a chance the Democrats will grasp their interpretation of the clause might be a bit broad.

[MayBee]

That is the question I keep asking.
If Congress can require to purchase 1 thing, what can it *not* require you to purchase?

[MayBee]

And IIRC, John Edwards proposed mandating yearly checkups.

[MayBee]

Yes, I do recall correctly.

[RichatUF]

Maybe the Obama Administration can issue food and drink ration cards to go with out healthcare and (coming soon) air ration card. Works in Cuba.

[Patrick R. Sullivan]

we are moving to a world where the only limit on Congress is its own sense of political expediency.

Oh, we've been there for decades. Which is why the idea of states' AGs initiating this constitutional challenge will backfire. It'll be easy for Anthony Kennedy to side with the four libs and say this is just one political faction bitching that they lost a political battle.

What would have a better chance is if millions of American citizens--who all have standing since all are subject to the mandate in this law--filed a challenge, under the guidance of a top flight constitutional lawyer such as Ted Olsen. That would be much harder to characterize as mere;y a political dispute.

[pagar]

Sen Cornyn says we're not going to fight for full Repeal. Which means, IMO, that the race toward bankruptcy of our nation continues.

[Extraneus]

At least we know what's next.

Climate Change Presents A Burr For Coffee Growers

The effects of climate change may be coming to your coffee cup.

The plants that produce coffee beans are notoriously sensitive, and small changes in temperature and precipitation can have big impacts on coffee quality and quantity. It may cause connoisseurs to cringe, but a warmer climate will encourage more coffee farmers to plant the heartier robusta varieties, which are caffeine-rich but bitter, instead of the mild, tasty Arabica coffees that Americans prefer.

Apparently they didn't all read about ClimateGate.

[Danube of Thought]

This legislation isn't based on the "general welfare" clause, which is not an independent grant of power apart from those that are enumerated (no case has ever held otherwise). This would of course be news to John Conyers, who seemed to be groping for this clause when he replied "the good and welfare clause" to a question about the source of the congress's power to do this.

I think--and have thought for thirty years or so--that the answer to the topic question is no, there is no limit unless it transgresses against one of the rights specified in the first ten amendments or some other specific constitutional provision. (It couldn't, for instance, exercise any of the powers reserved to the president or the judiciary.)

This shredding of the notion of enumerated powers through constant stretching of the commerce clause has taken place gradually, but the movement has been all in one direction.

I think the SCt case law supports the notion that congress now has this power, but regardless of that there will be extreme reluctance on the part of the Court to overthrow a statute of this scope and importance. It very rarely does so, and it hasn't done so in a long time. It is a truly sorry state of affairs--one that very well may never have been envisioned by the justices who chipped away at congressional limitations over the years.

[Jane says obamasucks]

That's a mistake on Cornyn's part - he's cowered by the democrats screaming "victory" and once again the inside the beltway people are clueless.

[Extraneus]

What is Cornyn thinking? Is he in a vulnerable seat?

[Danube of Thought]

What would have a better chance is if millions of American citizens--who all have standing since all are subject to the mandate in this law--filed a challenge

I wish I could believe it were true. But the courts ought not, and almost certainly would not, be swayed by the number of plaintiffs. In any event the individual mandate does not kick in until 2014, and up until then there may well be a standing issue.

I believe I just saw a Gallup poll saying that by 49%-40% the public now thinks the bill that just passed is a "good thing."

It's another country, not our own.

[daddy]

Look on the bright side:

Sure we'll all be sitting around in hospitals waiting forever for mediocre to terrible Health Care. But now we'll be able to do it in style!

Breaking fashion news from England: ">http://www.dailymail.co.uk/femail/article-1260023/New-designer-hospital-gowns-set-save-patients-embarrassment-undignified-backless-garment.html"> Designer Hospital Gowns!

"Operation Dignity: From a top designer, the hospital gown that leaves you less exposed."

No longer will your hiney be embarrassingly exposed as you wander down drafty corridors in Hospital Wards looking for a Doctor (Excuse me---looking for a Health Care Practitioner).
Now you'll be decked out in a garment so comfortable and elegant, you could even wear it while standing in line at the Oakland DMV awaiting similar prompt service and courteous treatment.

If I was any more excited about this development I'd poop. (But of course if I was wearing my new Hospital gown, I'd have to remember to lift it over my head before crapping, because unlike the old version, there's no split up the back any more, so the tail ends would fall in the toilet if I forgot. And yes, that is a tad bit of an inconvenient downside, but overall I think the benefit of looking snazzy in a Trauma ward makes it well worth it, don't you?

Now if we could only get them to change the overhead TV screens in those waiting rooms from CNN...Why that'd be icing on the cake!

[OldTimer]

The word is spreading that Republicans shouldn't have immediately cried for repeal after the vote, because too many people agree with its upfront provisions. The Dem's have already begun to pillory those mean Republicans as wanting to hurt innocent people by taking away Uncle Obama's generous healthcare candy.

I would like to see more Conservative assaults on the 16,500 IRS enforcers and the utter disregard for our private medical history in the hands of faceless, nosy bureaucrats. Where's the ACLU? Phony poseurs. Just think of the blackmail potential for people in the public eye, or running for office. No wonder the Dem's exempted themselves from this filthy bill. They have ship loads of material ripe for blackmail.

[Danube of Thought]

The complaint in the AGs' case is here. There's also a running discussion on the legal issues and the likelihood of success at that site (Volokh).

The complaint alleges that a) the mandates exceed the constitution's grant of powers to the congress by requiring individual purchases, and b) are a direct tax in violation of Article 1, Sections 2 and 9, and c) the entire scheme violates the Tenth Amendment.

I know without looking that the Tenth Amendment means next to nothing, and has zero chance. Not sure about the direct taxation issue.

[Rob Crawford]

The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress.

Really? He thinks they'd let that stop them?

[Rob Crawford]

What is Cornyn thinking?

He's not. He's a Beltway native.

[Danube of Thought]

On a very quick glance, the mandates would seem to violate Sections 2 and 9 if they are deemed to be an exercise of the power to tax. But I don't think they will be held to be such an exercise, but instead will be considered fines. I really don't know.

[pagar]

"What would have a better chance is if millions of American citizens--who all have standing since all are subject to the mandate in this law-"

All were subject to being ruled by Obama, who can't even find his birth certificate, yet court after court said American Citizens had no standing.

IMO, what would have a better chance would be for each state to file charges against their representatives who accepted the bribes, etc. Once a few dozen of them were charged, I think there would be some serious change of heart and votes.

[scott]

Apparently the law the bamster just signed allows no provision for the IRS to collect the penalties. LUN (hat tip Marc Levine)

Hopefully as more and more of this stuff is uncovered in the spaghettii of 2,000 pages that nobody read the whole law will collapse on it's own weight. The senate bill is a cluster***k that was never meant to become law.

I think it to be unenforceable. This one point leads me further in that direction. I feel better already.

[LouP]

Maybe the best long-term strategy is to embrace the monstrosity, raise expectations sky-high and boost them some more, and wait for average Joes and Janes to catch on that they have been had. It shouldn't take that long if the Dems can no longer paint blame on the Republicans, and use that as a distraction for what surely will be a real disaster.

[Yusef Chamberlin]

"It's one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It's quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure,"

Desperate measures seem to inspire acts of desperation.

'Forcing' people to buy health insurance
has the same principle as forcing people to buy automobile insurance. There are always
irresponsible types who fail to take measures to protect themselves, much less strangers.

Constitutional issues are always mitigated by those who think 'freedom' means freedom from responsibility.

Technically, the Vehicle Code requires those cited with violations to prove their innocence before the Court of jurisdiction,
thereby making a mockery of due process.

But I don't see that argument being propounded here. Maybe it's just political rhetoric that ensnares you.

[Porchlight]

I believe I just saw a Gallup poll saying that by 49%-40% the public now thinks the bill that just passed is a "good thing."

Jay Cost re-weighted it with more accurate party ID split and came up 46-42. Not much difference, but some. It mostly reflects triumph on the part of Dem voters, same as the slight Ras bounce. From the Gallup link:

Although much of the public debate over healthcare reform has been heated, barely a third of rank-and-file citizens express either enthusiasm (15%) or anger (19%) about the bill’s passage. However, only Democrats show greater enthusiasm than anger. Independents are twice as likely to be angry as enthusiastic, and Republicans 10 times as likely.

He was bound to get a bump from Dems. Repubs hate it of course. It's about 50-50 with independents and will presumably go downhill from here. And if that's all the traction he can expect from them, he hasn't achieved much, polling-wise.

[Extraneus]

I have to agree with squaredance in terms of the lack of stomach on our side vs. how things would be if it were the other way around.

The tea party protesters have been put in a box, where the least impertinent comment is played as some sort of extremism. Sure, it looks like November will be bad for Dems (of course, there's plenty of stimulus money left, and we'll likely be thrown a bone or two in the meantime), but if this Marques of Queensbury system isn't upended, we'll all be Cornyns, attempting to improve fascism on the margins.

Have we ever had a national strike in this country?

[Porchlight]

and wait for average Joes and Janes to catch on that they have been had.

That's what I think, too. I don't know about "embracing the monstrosity," but constant pointing out of the nagging details the Dems conveniently hid - a steady drip drip drip of bad news - might be effective. People have to learn first hand how much it blows before they'll believe Repubs that it needs to be repealed/replaced, but in the meantime we can prime the pump.

Imagine the sticker shock to come. Most people aren't following closely, think they're getting freebies and have no idea what's about to hit them.

[Jane says obamasucks]

Is anyone else watching the senate debate. Slick Dick Durbin just went on and on about the greatness of the bill, specifically the student loan take over and then launched into complaints about the republicans offering amendments that had nothing to do with health care.

I am waiting for the democrats to vote against the amendment that prohibits viagra for sex offenders. Kerry's opponant can run on that.

[Holly]

It appears Yusef is as knowleagable as BOzo about car insurance. I can't help but wonder --is there a place in the US that requires folks who don't own an automobile to buy not only liability but full coverage? *boggle* I'm glad I live in Texas.

[Yusef Chamberlin]

We're all glad you live in Texas. That's a good place for you.

[Holly]

*knowledgeable* -- there, better

[Eric]

This is exactly why the Federal Gov't cannot issue driver's licenses. States issue them because they've tested you within the laws of that state. Once you have a license, and buy, or borrow, a car, the STATE insists you pay for insurance. All legal under STATES RIGHTS.

The Federal Gov't long ago renounced its claim on health insurance regulations, leaving that in the hands of the states. This is why we cannot buy insurance from a state outside of the one in which we live. For them to NOW insist that it's a FEDERAL RIGHT flies in the face of everything which has passed before. It doesn't matter what they claim now, this has been, and should remain a state right because it is NOT expressly delegated to the Federal Gov't.

This is why the STATES are passing laws exempting their citizens from health insurance mandates. If they have laws on the books before the "mandate tax/penalty" kicks in, as they are sovereign within their states as far as health insurance laws, even the Federal Court system should find for the states.

Barring that, only 34 State Legislatures are needed to approve a change to the Constitution. Perhaps it's high time for an update which specifically limits some of the power of the Federal Gov't?

[Rob Crawford]

Constitutional issues are always mitigated by those who think 'freedom' means freedom from responsibility.

Let them suffer from their lack of responsibility, serving as an example for others. Those with more charitable impulses can help them out of their own free will.

[Yusef Chamberlin]

I want to buy insurance in another zone, perhaps Texas, where the insurance is cheap. It shouldn't matter where I live, nor should it matter if I have DUI's and a glove compartment full of unpaid citations. That should be the Law

[daddy]

"Climate Change Presents A Burr For Coffee Growers"

Extraneous,

Obviously the answer is a different Burr up the Arse of Coffee Growers.

">http://heavytable.com/animal-processed-coffee-in-minnesota/"> Monkey Parchment Coffee beans, run thru the rectums of south Indian Rhesus Monkeys, sell for $320 a pound, and are one of the few success stories these last few years from that troubled land.

This new problem with Guatemala beans being overly sensitive to Climate Change appears at first glance like a problem, but is actually simply a lack of vision, because besides sensitive coffee-beans what else does Guatemala have in spades you might ask?

Why Howler Monkey's--Shitloads of 'em. Pouring thru the jungles like ants. Seriously, all an entrepreneur'd have to do would be to run a couple bucketfulls of beans through the anus of ">http://www.flickr.com/photos/khosla/3263470009/"> this guy, and sensitive beans or no, the cash flow will be going gangbusters, and no way will Janet any longer be doing Hex signs at her computer each morning over Decaf.

You know what? All joking aside, it's probably a doable idea.

[Holly]

"That's a good place for you."

No, darlin', it's a GREAT place for me. I'm allergic to serfdom.

[Porchlight]

Hey, remember pre-climate change when Rainforest Devastation was the favorite bugbear of the environmental folks? We were going to destroy all the future miracle drugs because we were eliminating rare species one by one.

No one much cares about miracle drugs now.

[Jim Rhoads a/k/a vjnjagvet]

Patrick;

Class actions under 42 USC Section 1983 seeking prospective injunctive relief for violations of the Constitution or federal statutory law are fairly common and well litigated. There is plenty of precedent for them both in civil rights litigation and cases involving medical care, especially under medicaid.

Under 1983, the prevailing party is entitled to reasonable attorney fees, computed on the Lodestar procedure. For this reason, there are many attorneys who will take such cases on a pro bono basis because in addition to the publicity, there is the opportunity for compensation.

Here are some examples of cases filed against TennCare, the Tennessee medicaid program:

Rosen v. Goetz

Newberry v. Goetz

While these complaints allege TennCare is administered contrary to the Medicaid statute, there is no reason they they cannot be tailored to allege that the HCR violates the US Constitution in the particulars we have noted over the past several days.

BTW, bothl of these cases resulted in consent decrees and attorneys fees for the plaintiffs' attorneys.

[Jane says obamasucks]

Some call them "zones" others call them states.

If you are inclined this senate debate is quite good. They have 5 guys - Enzi(accountant), Judd Greg, the Dr from Wyoming, McCain and the senator for Florida having this discussion among themselves about the true costs of the bill. It's understandable and dare I say interesting.

[jimmyk]

many people agree with its upfront provisions.

That's because our wonderful media depicts them as free lunches. No denial of insurance for sick children. Who could argue with that? But if people were told that their premiums would have to go up in order to pay for parents who were irresponsible and waited till their children got sick to try to get insurance, it might be a different story.

[Jane says obamasucks]

John Barrasso just proposed an amendment that says if health insurance premiums go up, the law it automatically repealed - cause that is what teh president promised.

It's quite spectacular.

[Janet]

LUN The Good and Welfare Clause....Oh my goodness. Coffee beans aren't the only thing that could be improved by running them through a monkey's digestive system.

[Danube of Thought]

I want to buy insurance in another zone, perhaps Texas, where the insurance is cheap. It shouldn't matter where I live, nor should it matter if I have DUI's and a glove compartment full of unpaid citations. That should be the Law

Spoken like a true fan of Obamacare, i.e. a dunce. I live in California; I am not required to have auto insurance unless I drive. I do drive, so I buy insurance--from a company in Texas. If I have DUI's and unpaid citations, I must pay more because I pose a greater risk of causing claims to be paid out than do others in the risk pool. That is what insurance is, and that's the way it works--unless you require by federal law that pre-existing conditions (like DUI's) not be taken into consideration by the insurer.

There are people who actually believe that way, as we have seen. None of them has ever had a fiduciary responsibility to the members of an insurance risk pool.

If morons like Sylvia and this latest dolt didn't exist, we would have to invent them to demonstrate what kind of electorate we are dealing with.

[squaredance]

Cornyn is just another apparatchik. His mincing is just are vile as that of Stupak. It is all just for show. He might as well be a Democrat. These people have no honor. They have no guts. They are perfumed idiots.
They would betray their nation merely to avoid "bad press". Hardly a man in the lot, and the one that are there are tolerated just for the distraction they provide to the peanut gallery (that would be us).

What filthy and immoral cowards and traitors.

120 years ago they would have been shot in the streets.

Yes, the GOP has to be overhauled, and people like Cornyn keelhauled. But that is merely pro forma.

We must understand that soon our Cold Civil War will get much warmer. It will get worse and worse.
Bogus polls, bogus scandals, agiprop, direct action all will lead, but this will not be the end of it.

I hope the tea party folks have the guts for it for the slanders have just begun, and this will be far from the worst of it--the cudgel will come. The knock on the door will come.

Until we tear down the imperial Federal Government then this will go on an on. Until the vast and corrupt leftist Nomenklatura is pulled done and its members actually punished for their treason, immorality and criminality--each and every one of them--there can be no salvation. And that goes for their RINO enablers too. Yes, we have to fight at the primary level, but this is not merely a political struggle. The GOP will not save us. This matter is as concrete as morality gets. We now sit at a crossroad that is at the very essence of being and being in the world. It is a struggle at the very core of us, our hearts, our bodies, our minds--our souls.

We are just a handful of years away from the fate of Brazil or the UK. Once this is reached there will be no return.

If Americans do not stop it now, and I mean right now, it will be too late. National strike? It might require 20 million ocnverging on Washington. It might require standing up to troops. It might require taking a bullet.

I do not see it. The weakness of the spirit of this nation produces Obama and Pelosi, not the other way around.

We have to see what the game is about here.

This truly bizarre, illiterate and ahistorical parsing of the general welfare clause, that is "general" welfare, not personal welfare, as any idiot should be able to see. This merely empowers the federal government to build things such as lighthouses. Basic infrastructure.

Nothing more is here than the feckless moral self-deception of the thief in the night. It very essence of collectivism and as ancient as mankind itself. It is the basest of of unwindings.

To speak out now at such parsings is woefully generations late. Yes, the constitution is now out the window now. It is not being "chipped away" it has been discarded. We no longer live in a Constitutional Republic in any real sense of the phrase. Our government is a wholly illegitimate tyranny now, but it was wholly illegitimate the very first day of the New Deal.

We are now in a world were the judgment of the State over what it considers the objective utilitarian value of an individual is the paramount and over-riding principle of our lives. We have stood the universe on end. It is complete reversal of the the whole moral, political, spiritual and intellectual canon of Western Civilization.

So it is when Christianity is abandoned. So it is when the great struggle of the West with all of it glorious triumphs are cast aside like so many used toys.

Gleefully licking our lips, chattering like baboons, we slink towards an a vile, grimy and bloody ancient paganism.

All within a generation.

[Danube of Thought]

I should add that the only reason I couldn't, as a Californian, buy my health insurance from a Texas company is because the congress prevented me from doing so in 1945. But the congress always knows what's best for us, doesn't it?

[MayBee]

That's because our wonderful media depicts them as free lunches.

True! I keep hearing reporters talk about what this bill "gives" people. No more pre-existing conditions! Kids up to 26 insured! No more lifetime caps!

[Janet]

squaaredance - your post reminds me of the Kipling poem, "The Gods of the Copybook Headings"
LUN at Wolf Pangloss great intro & comment -

To all of this, the God who inspired the copybook headings is the answer. Believe if you can believe. Keep trying if you can’t. Chin up old bean. Never give up. Never give in.

[peter]

Shut up and stop your whining. LUN

[Danube of Thought]

Technically, the Vehicle Code requires those cited with violations to prove their innocence before the Court of jurisdiction,
thereby making a mockery of due process.

That is because neither the constitution nor common sense provides that due process is required in the matter of civil citations.

How's that for a bit of ensnaring political rhetoric?

[peter]

No one mentioned Medicaid. LUN

[Danube of Thought]

It's always been my understanding that the 16,000 IRS agents were not, indeed, provided for in the law that was signed today. It is part of the reconciliation package.

[JM Hanes]

DoT:

"I know without looking that the Tenth Amendment means next to nothing, and has zero chance."

Discussions seem to center on the question of mandates, and while I think there may well be a case to made there, most people seem to be arguing from general principles.

It seems to me there is a far more compelling problem with the Federal Government requiring states to expand and fund their Medicare rolls, when state governments will be forced either to borrow money or substantially hike state taxes in order to comply.

I wonder if there would not also be some question over whether the Federal government can invoke the commerce clause, without first forcing/allowing the states to actually engage in interstate insurance commerce which they do not presently do, which they do not, in fact, want to do, and which current law does not allow them to do.

[pagar]

The Election Projection site is saying we gave a house seat back to the Democrats because no credible Republican filed for the seat in the Nov election.

Meanwhile the rate increases for Health Insurance have already Started according to this report.

[Jane says obamasucks]

I wonder if there would not also be some question over whether the Federal government can invoke the commerce clause, without first forcing/allowing the states to actually engage in interstate insurance commerce which they do not presently do, which they do not, in fact, want to do, and which current law does not allow them to do.

How they will regret ignoring portability.
Altho the commenrce clause has been invoked far too easily and often. I think if the public stays engaged in this matter it could encourage the courts. Otherwise - toast.

[bgates]

The Election Projection site is saying we gave a house seat back to the Democrats because no credible Republican filed

What makes somebody not "credible"? Being impeached as a federal judge? Having a "roommate" run a brothel out of the house? Sending people dead fish through the mail to demonstrate you're a tough guy? Dodging taxes on Caribbean or Irish property? Getting roaring drunk and mauling waitresses a quarter your age? Having a wife sent to federal prison? Collaborating with enemy nations during wartime?

What?

[Rick Ballard]

Republican, bgates. Wearing white after Labor Day is sufficient. Which reminds me - what was the First Lardy up to today? Did they cinch her too tight and cut off oxygen to that pea brain again?

[narciso]

I know you're all surprised about this, in the LUN

[Melinda Romanoff]

Michael Barone puts some Illinois politics into perspective in his latest and it's not looking good ( I know, I know, it's Illinois and it's early.) but it should be, by default way, way better at this point in time.

[Jim Ryan]

Is this real?

My family rates are going up $200/month ... $2400/year per employee effective April 1st.

Could the effects take place so soon? Or is that coincidence?

[Melinda Romanoff]

Jim-

Some insurers might need to get a jump on things before politically correct profit levels are installed.

Or taxes. Kinda tough to tell.

I'm sure they mean well, and will surely keep you as a customer if you complain.

I'm going to try and sleep again. It hasn't worked for the last two nights, but I'm going to gamely try again.

G'night all.

[Pofarmer]

Tell ya what folks. I'm just about in despair tonight. Going between despair and pissed off, but I've had some really good rants that I wish were recorded. I feel like while America was watching American idol we lost our country. My wife says nobody where she works has any clue what is in this bill. Hell, she wouldn't either if I didn't tell her. I called several friends, neighbors, family today that I knew had either high deductible or HSA plans and asked them if they knew that their coverage had been made illegal this morning. Not one of them did. We have become blind and stupid and unconcerned as a society. I don't know how we wake this up. I don't know how we undo it. I start tommorrow calling my U.S. House Rep. Then the Attorney General of the State. Then, maybe, a bus company. Will we still be allowed around the capital on 9/12?

[Pofarmer]

Is this real?

My family rates are going up $200/month ... $2400/year per employee effective April 1st.

Could the effects take place so soon? Or is that coincidence?

Anecdotal, but I'm told at least one local employer cut wages $2/hour across the board today.

[Pofarmer]

Sarah Palin event in Independence, 7000 seats, apparently sold out in a day. The only available tickets are with reception for $260. Worth it?

[windansea]

The Republicans should introduce an amendment to the reconciliation bill making all members of congress and their staff NON exempt from Obamacare.

forget the Viagra sillyness, forcing the exemption out in public is the best way to embarrass the Dems

[Pofarmer]

Oh, yeah, with reception.

[PDinDetroit]

Po - right there with ya bud. Here was my port from last night:

I believe that everyone who voted YEA on this HCR Bill, and especially The One who signs this into Law, have willfully violated their oath to Protect and Uphold the Constitution Of The United States. They are Traitors and Guilty of Treason.

I am ready for a call to arms. I hunt, butcher and eat what I hunt, and will no longer take this carp from the Government.

[JeanD]

Po,

I agree in all particulars, and said almost the same to my sister earlier today. I don't know if you are familiar with the civic literacy test (civicliteracy.org), but it paints a brutal picture of the problem.

33 questions, and a whopping 49% overall average score in response to them. When I was a student, 49% was F-. Apparently, now, its the "new normal."

Instead of throwing more money at schools, maybe we should make everyone answer a substantive access question to gain access to itunes or TMZ. And change the question every hour of every day...

[daddy]

"The Election Projection site is saying we gave a house seat back to the Democrats because no credible Republican filed for the seat in the Nov election."

Why should that make a difference? Remember Torricelli/Lautenberg? Remember Carnahan/Carnahan? Remember replacing any candidate at any time regardless of the rules simply in order to win?

So why not nominate somebody credible tomorrow and say we're using the Lautenberg/Carnahan clause, which is right up there in the Constitution next to The Good and Welfare Clause? Might even be fun to see the Media and the Left start hollering in the midst of all this about something being "Un-Constitutional." What have we got to lose?

[Pofarmer]

I just love the way this is worded.

For 2015

Promoting Individual Responsibility. Requires most individuals to obtain acceptable health insurance coverage or pay a penalty of $95 for 2014, $325 for 2015, $695 for 2016 (or, up to 2.5 percent of income in 2016), up to a cap of the national average bronze plan premium. Families will pay half the amount for children, up to a cap of up to a cap of $2,250 per family. After 2016, dollar amounts are indexed.

Yeah, do it, or we'll sic the IRS on ya.

[JM Hanes]

O/T:

The latest Patrick Fitzgerald news caught my eye, but Isikoff's last paragraph below is the mind bender:

Attorney General Eric Holder Jr. has tapped the Justice Department's most feared prosecutor, Patrick Fitzgerald, to lead a sensitive investigation into whether defense lawyers at Guantánamo Bay compromised the identities of covert CIA officers. The probe was triggered by the discovery last year of about 20 color photographs of CIA officials in the cell of Mustafa Ahmed al-Hawsawi, an alleged financier of the 9/11 attacks, say three current and former government officials who asked not to be identified talking about an ongoing case.
[.....]
Lawyers in Justice's National Security Division--the same unit charged with prosecuting the 9/11 defendants--were running the probe initially. To avoid any conflict (and to fend off GOP attacks of his counterterrorism policy), Holder recently turned to Fitzgerald, the U.S. attorney in Chicago, who has undisputed expertise in the law governing the exposure of undercover intelligence officers: three years ago, he won his most celebrated case, securing the conviction of I. Lewis "Scooter" Libby, Dick Cheney's former chief of staff, for lying about the outing of CIA agent Valerie Plame.

Clarice did a much better job of summing up Fitzgerald's "expertise" in her complaint letter to the OPR.

[Neo]

The US Constitution provides in Article 1 Section 8 –
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
...
and the 16th Amendment (among other places)
...
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Funny .. I can’t find the part about providing health care … must be in the 28th Amendment.

[Pofarmer]

this bill is schizophrenic.

SEC. 1251. PRESERVATION OF RIGHT TO MAINTAIN EXISTING COVERAGE.

(a) No Changes to Existing Coverage-

(1) IN GENERAL- Nothing in this Act (or an amendment made by this Act) shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of this Act.

(2) CONTINUATION OF COVERAGE- With respect to a group health plan or health insurance coverage in which an individual was enrolled on the date of enactment of this Act, this subtitle and subtitle A (and the amendments made by such subtitles) shall not apply to such plan or coverage, regardless of whether the individual renews such coverage after such date of enactment.

(b) Allowance for Family Members To Join Current Coverag

SEC. 9005. LIMITATION ON HEALTH FLEXIBLE SPENDING ARRANGEMENTS UNDER CAFETERIA PLANS.
a) In General- Section 125 of the Internal Revenue Code of 1986 is amended--

(1) by redesignating subsections (i) and (j) as subsections (j) and (k), respectively, and

(2) by inserting after subsection (h) the following new subsection:

`(i) Limitation on Health Flexible Spending Arrangements- For purposes of this section, if a benefit is provided under a cafeteria plan through employer contributions to a health flexible spending arrangement, such benefit shall not be treated as a qualified benefit unless the cafeteria plan provides that an employee may not elect for any taxable year to have salary reduction contributions in excess of $2,500 made to such arrangement.'.

(b) Effective Date- The amendments made by this section shall apply to taxable years beginning after December 31, 2010.

[Pofarmer]

Wouldn't it be the most accurate to say that Libby was convicted of disagreeing with Tim Russert and having a better recollection of events than Matt Cooper?

[bgates]

Po, there's no schizophrenia, just mendacity in the service of evil. 1251, there's no requirement for termination of any coverage; 9005, there's a penalty for continuing certain kinds of coverage.

It's like what Reid said about the income tax - no requirement that you pay, just a penalty of several years in prison (plus fines) if you don't.

Once we take Congress back, I'd like a bill that says there's no requirement for anyone to quit any political organization, and a $10 billion fine for anyone participating in the Democrat Party, ACORN, SEIU, etc.

[bgates]

Wouldn't it be the most accurate to say that Libby was convicted of disagreeing with Tim Russert

It would be most accurate to say Libby was convicted of serving a Republican administration during the unpopular part of a war.

[Danube of Thought]

Funny .. I can’t find the part about providing health care …

What the claim will be--and unfortunately I'm sure it will prevail--is that regulating health care nationally is being done pursuant to the power to regulate interstate commerce (Article 1, Section 8 clause 3, granting congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;..."

The congressional enactments that have been held to be within this power are quite breathtaking.

[Pofarmer]

If that's the case D0T, then we are really and truly doomed. Health care, Cap and Trade, Immigration reform. We can't stop any of it, and any one of them by themselves could undo us.

All 3 together?

[Danube of Thought]

Here are a couple of Wikipedia paragraphs discussing commerce clause jurisprudence since 1937 (when the floodgates really opened). Wikipedia is not a reliable source for authoritative legal research, but the following stuff seems accurate to me:

The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated in Gibbons. Central to this theory was the belief that the democratic process was sufficient to confine the legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is. The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. The debate over Commerce Clause jurisprudence thus includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the Federal courts.

When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. Intrastate activities could fall within the scope of the Commerce Clause, if those activities would have any rational effect on Interstate Commerce. Finally, in United States v. Darby Lumber Co., 312 U.S. 100 (1941), the Court said the 10th Amendment "is but a truism" and was not considered to be an independent limitation on Congressional power.

[rse]

How many of you have local papers upset about cuts to education caused by decreased tax revenue?

The transfer to Medicaid rolls of so many more people under Obamacare will hit states finances hard.

Under Obamacare the cuts to local education are just beginning because education and Medicaid are the 2 largest components of most state budgets.

Do not let any opportunity go by to point that out.

[bgates]

When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce.

For instance, a parsonage might have a mortgage on it, so requiring church membership and tithing would be a valid exercise of Congressional power under the Commerce Clause.

Weddings are expensive, so the federal government has the power to arrange marriages and compel pairs of subjects to consummate their relationships under the Commerce Clause.

In the modern Knowledge Economy, there's nothing more economically valuable than thought; likewise, nothing that could be a more fit subject for federal regulation.

[daddy]

rse,

WE do . Local news tonight said the last of the stimulus funds were spent for Alaskan Education and had on our local head Teacher gal who said the hard cuts were now coming and that we needed to swap and get the revenue now from the State in order to fund blah, blah, blah etc.

It was then well orchestrated to show that local bonds would only cost each property owner @ 120 bucks more in Prop taxes to deal with the shortfall, but somehow thy neglected to mention how much any of this new HCR Legislation was going to hammer every single one of us on top of that $120. They know whats happening, but they are still providing cover for this massive rape of the taxpayers. I hate 'em all.

[rse]

LUN is the Fordham story on the irony of the advocacy of healthcare for all meaning less money for education.

They want to take over everything and keep coming after us for more revenue because "it's for the children."

It's the children who are particularly [insert verb of choice].

[Captain Hate]

What is Cornyn thinking?

He's not. He's a Beltway native.

He needs a primary challenger; you can't serve the country if you're that clueless. It's time for the Republicans to purge the party of Repukes. Voinovich is already leaving but Goober Graham should be strongly urged to do so as well. And Steele should be told to write books full-time.

[Captain Hate]

FromPolitico W.H. ASSURES AMA: DOC FIX COMING THIS SPRING: Inside Health Policy's Brett Coughlin reports: 'A board member of the American Medical Association has twice been assured personally that the White House will continue to push for a repeal of the Medicare physician payment formula this spring after health reform passes, according to a source who was on an AMA conference call Friday. According to the Congressional Budget Office, this means that the newly passed health-care overhaul would increase deficits by $139 billion from 2015 to 2019 alone, and by far more in subsequent years. And that's not even counting all of the other budgetary gimmicks in the bill, such as its rampant double-counting

Instead of making a fool out of himself, Cornyn should be getting ready to bring this garbage up when Harry Reid tries to pay off the AMA quislings for holding their tongues letting the congressional pricks lie their asses off about the cost of Commiecare. Make the AMA live by cuts that were in the bill and have to explain to their member doctors why they're getting screwed.

[Jane]

The Republicans should introduce an amendment to the reconciliation bill making all members of congress and their staff NON exempt from Obamacare.

Chuck Grassley did that last night. And Lisa Murkowski helped. She was actually quite affective altho I think I was the only person watching.

[narciso]

Carp, Sarah arranged for a swap with state funds for stimulus funds precisely to avoid this problem, she was right yet again,

[Porchlight]

It seems to me that premiums are going to start going up immediately in anticipation of the flood of people trying to get procedures done before their doctor retires or goes out of business thanks to this POS.

Also children with pre-existing conditions will be immediately covered, so that will help start the wave.

Lastly, those afraid of being laid off (partly due to this monstrosity) who will also be visiting the doctor in droves.

We won't have to wait long to see the effects.

[pagar]

" see the Media and the Left start hollering in the midst of all this about something being "Un-Constitutional." What have we got to Lose?"

IMO, We lose America, if we don't get decent people elected and correct the problems in our government.

The linked site does not project the Republicans even coming close to winning the House. We have a lot of work to do before election day.

[Jane]

Also children with pre-existing conditions will be immediately covered, so that will help start the wave.

Actually they can't seem to find that provision in the bill. It looks like they aren't covered until 2014.

Republicans should offer an amendment to change that.

[narciso]

As usual, one waits a day, and the truth is mentioned, but it never catches up with the lie, in the LUN

[Porchlight]

Ooh, that's interesting, Jane. I agree.

[Porchlight]

Jane,

More You Too related news:

Politico: Health bill may exempt top staffers

The health care reform bill signed into law by President Barack Obama Tuesday requires members of Congress and their office staffs to buy insurance through the state-run exchanges it creates – but it may exempt staffers who work for congressional committees or for party leaders in the House and Senate.

Members of Congress are required to participate? I must admit I didn't know that. Apparently that was Grassley's work too.

[Jane]

Porch,

I blogged that yesterday or maybe the day before. Grassley proposed an amendment to fix it.

I wrote to Judd Gregg about the children fix - and blogged about that too.

[pagar]

Is there a site that tells in plain language what the bill actually says. I know Madam Speaker said we could find out after the bill was passed, but the bill has been passed and all we seem to see is bits and pieces dribbling out.

[qrstuv]

Yusef says: "I want to buy insurance in another zone, perhaps Texas, where the insurance is cheap. It shouldn't matter where I live, nor should it matter if I have DUI's and a glove compartment full of unpaid citations. That should be the Law"

It should not be illegal for an insurer in another state to offer you insurance.

As a private actor, however, that insurer should also be free to charge as much as needed to cover your bad habits.

That's freedom. I know you're uncomfortable with it.

[Danube of Thought]

Mornin' all.

I'll see what I can find about cases involving unfunded mandates today, doing whatever legal research I can with Google. Going in, I'm quite sure that they have repeatedly passed constitutional muster.

The effect of this thing in bankrupt states like California is going to be fascinating to see. But one can bet that the usual women, poor and minorities will be hit a hell of a lot harder than the public employee unions will.

[Extraneus]

Well here's a summary of the student loan takeover, although it's by AP.

[Ranger]

Well, I'm a big believer in the idea that people don't learn until they suffer. To that end, the way to kill Obamacare and prevent something like it from happening again is to use it as a vehicle to pushing those you demanded it.

First, if the Republicans take the house in November, one of the first things they should do is request a new, CBO score, and then refuse to provide any funds for Obamacare's implentation until the cost is brought down to meet the projections used to pass it. Make Obama meet his promise of not increasing the deficit.

Second idea would be to raise the revenue for Obamacare cost over runs by declaring all compensation to Union members and Federal, State, and Local government employees (military service exempted) be treated as income for tax purposes. Then, create a gross income surtax on the incomes of all Union members and Federal, State, and Local government employees (and retirees from these jobs) to cover shortfalls in the funding of Obamacare. The actual size of this tax is to be determined by the previous year's cost over-run in Obamacare. Suddenly, Labor will be screaming to keep Obamacare's costs down, if not for outright repeal.

[Jane]

I think they should use the campaign chests of every elected official to pay for any overage.