Posts
by Smitty
John Hinderaker at the splendid PowerLine seems to think that there is a dilemma for the Democrats between what they have to say to win primaries and what they need to say to keep their constituents from speaking to them in ALL CAPS.
Nonsense. What the Progressives need to do is start at square one, which is the Constitution. The apparent dilemma derives from an attempt to legislate around protections incorporated in a prescient manner by the wise fellows that wrote the document.
The Framers had just fought their way out from under one tyranny. It is both a discredit to the American education system, and a credit to the masterpiece of patient deconstruction that has been the Progressive project, that almost no one even questions the Constitutionality of the Healthcare Abatement Act.
Question to the lawyers who read this blog: what are the chances of a class-action lawsuit against the foul legislative product, should that steaming loaf ever achieve final floater-hood?
Term limits now! Texas 81 year old RINO Kay Granger, missing for six months
found in a nursing home
-
How many more of these geriatric geezers are around in the House and
Senate? Now we have Kay Granger, a
The post Term limits now! Texas 81 year old RINO ...
9 hours ago
You're right, I think, but the Jonah Goldberg wrote before the election about how, as institutions, the legislative and executive branches have stopped even trying to determine whether a legislation is constitutional before enacting it. They simply vote up or down, then hope for the best in the courts.
ReplyDeleteOne compelling piece of data offered by Goldberg:"Indeed, before the Civil War, only two acts of Congress were found unconstitutional by the Supreme Court."
The Constitution has been dead for a long time. The globalist bankers killed it and they're firmly in control of both parties. Time to move on.
ReplyDelete@Anne,
ReplyDeleteIf what you say is true, then all of this hue and cry about, well, anything the congress/administration are doing is just so much flatus.
Zero. Do you understand the meaning of the phrase "class action lawsuit"? Class actions are useful when there are a large number of plaintiffs who have been injured by an action. It's useful for things like product liability where the number of people injured by, say, a manufacturing defect are diffuse. For there to be a class action lawsuit against the legislation, it would first have to pass, then there would have to be a large number of plantiffs injured by the new legislation who would be better served by one consolidated action than a bunch of independent actions.
ReplyDeleteBut it sounds like what you're really after is a Constitutional challenge to the legislation. If that's what you're after, you don't need a plaintiff class to be certified, you only need one plaintiff who can show that he has been injured as a result of the legislation. But then you'd run into the problem of having to actually specify what provision of the Constitution this plan would violate. And for all your harumphing about how the American people don't know enough about the Constitution, it doesn't seem like you have a very good idea which "constitutional protection" is relevant here. In fact, none of them are. I would guess, from what I know of conservative politics, that you're suggesting this bill would not be justified by the interstate commerce clause and therefore would be prohibited by the 10th amendment. Under current jurisprudence, this argument would be laughed out of federal court. Current commerce clause analysis allows federal regulation of anything that affects interstate commerce, which this clearly does. Indeed, the commerce clause analysis of this bill would be exactly the same as the commerce clause analysis of Medicare (or thousands of other federal programs).
I do agree with you that it is regrettable that more people in this country are not educated about the Constitution. Maybe you should start curing that problem with educating yourself a little more.
I suspect that it should be attacked, piecemeal, as McCain Feingold is being attacked.
ReplyDelete@Satya,
ReplyDeleteCurrent commerce clause analysis allows federal regulation of anything that affects interstate commerce, which this clearly does.
The circumstances under which my personal health can be considered "interstate commerce", while I'm alive, anyway, escape me.
This seems some legal version of transubstantiation:
I'm not going to comment upon what other people think on the point, but, I for one, just don't get it. And I would like to enjoy 'not getting it' in a way that respects my health and wallet.
Your personal health isn't "interstate commerce". Your health CARE is a market good that is purchased and sold within the stream of commerce, just as you buy food and electronics and inflatable sex toys. For example, drugs are produced in one state and shipped to another state where they are sold. Your insurance provider pays for those drugs and is thus obviously an actor in interstate commerce. The founders of this country recognized that state governments do not have the ability to regulate stuff that operates within interstate commerce, because that could lead to companies having an impossible time negotiating with different levels of state regulations, and could spark trading wars between states. Thus, they placed the power to regulate interstate commerce exclusively within the power of the Federal government. The FDA, for example, regulates all drugs produced within the country because they are sold in interstate commerce. Regulation of drugs produced in interstate commerce has been recognized since the days of Roosevelt - and I'm talking about Teddy, not Franklin.
ReplyDeleteIt is true that the interstate commerce clause now covers a variety of federal actions that would never have been envisioned by the founders. That is because as America industrialized, what was necessary to effectively regulate interstate commerce became more complex. I think it's valid to say that the interstate commerce clause went too far, such as justifying laws prohibiting violence against women. But the regulation of health insurance is not a close call. You're suggesting an interpretation of the Constitution that would take us all the way back to the 19th century.
Which, you know, you're free to believe if you want, just understand that you have zero chance of success at a interstate commerce attack on health care reform and you should know that.
Your health CARE is a market good that is purchased and sold within the stream of commerce, just as you buy food and electronics and inflatable sex toys. For example, drugs are produced in one state and shipped to another state where they are sold. Your insurance provider pays for those drugs and is thus obviously an actor in interstate commerce.
ReplyDeleteDrugs, as a tangible product with possibly lethal side-effects at every stage from production to disposal, are easier to understand from a tight regulation standpoint.
Insurance companies, not so much. Insurance is information. Whereas the need for economies of scale 'back in the day' was apparent, the case for centralizing everything isn't as clear.
The founders of this country recognized that state governments do not have the ability to regulate stuff that operates within interstate commerce, because that could lead to companies having an impossible time negotiating with different levels of state regulations, and could spark trading wars between states.
The federal government can very easily legislate minimum standards, and provide data formats to keep things tidy. This seems reasonable. What doesn't seem reasonable is the bypassing of the state governments to interact with citizens. Letting the states take care of their people to their peoples' taste seems a better route to both supporting experimentation with different systems, and reserving to the federal government an oversight role.
Thus, they placed the power to regulate interstate commerce exclusively within the power of the Federal government. The FDA, for example, regulates all drugs produced within the country because they are sold in interstate commerce. Regulation of drugs produced in interstate commerce has been recognized since the days of Roosevelt - and I'm talking about Teddy, not Franklin.
Sure, drugs could make your head 'splode, and we wouldn't want to put their costs through the roof by forcing duplication of testing effort. My wife works in pharmaceuticals, actually, so I understand these points at a deeper level.
What of the moral hazards associated with putting everything at the federal level? Quis custodiet ipsos custodes? I'm deeply concerned, low-intensity terrified, in fact, by the very shape of the debate. Health care is but the girder breaking the camel's back: the Constitutional crisis of 2009 is really about individual freedom of Americans. We're either 50 States United, or A United State. There isn't any need for ad hominem against anyone in office right now. You need to know that the tyranny to come (in some unknown number of years) is predicated upon the collapse of political power into DC today.
Federal involvement in health care may prove a cure worse than the disease. We should strive for less, not more of this centralization.
I do sincerely thank you for your time and thoughtful replies.