A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?

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A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?


Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

....


More at the link.
 
People, obamacare is a tyranny to match all tyrannies. Those involved should be tried and put in prison if not forced to pay the ultimate price, but this isn't a fight we'll win. Even an eventual SCOTUS show down is no guarantee, as a matter of fact, it's probably a death sentence and window of opportunity for future tyrants like Obama and his henchmen. I don't have a good feeling about this.
 
Education
B.S.E., Princeton University; M.S., Stanford University; J.D., Harvard University
Biographical Sketch
Professor Kerr teaches criminal law, criminal procedure, and computer crime law. His articles have appeared in the Harvard Law Review, Yale Law Journal, Stanford Law Review, Columbia Law Review, University of Chicago Law Review, Michigan Law Review, Virginia Law Review, New York University Law Review, Georgetown Law Journal, Northwestern University Law Review, Texas Law Review, and many other journals. According to the most recent Leiter Rankings, Professor Kerr ranks #7 among criminal law scholars in the United States for citations in academic journals. Kerr’s scholarly articles also have been cited by most of the U.S. Courts of Appeals and over two dozen federal district courts.

Before joining the faculty in 2001, Professor Kerr was an honors program trial attorney in the Computer Crime and Intellectual Property Section of the Criminal Division at the U.S. Department of Justice as well as a special assistant U.S. attorney for the Eastern District of Virginia. He also is a former law clerk for Justice Anthony M. Kennedy of the United States Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit. In the summer of 2009 and 2010, he served as special counsel for Supreme Court nominations to Senator John Cornyn on the Senate Judiciary Committee. In 2006, Kerr was a visiting professor at the University of Chicago Law School. In the Spring 2011 semester, he will be a visiting professor at the University of Pennsylvania Law School.

Professor Kerr is a co-author of the leading casebook in criminal procedure with Yale Kamisar, Wayne LaFave, Jerold Israel, and Nancy King, now in its 12th Edition. He is also a co-author of the leading treatise in criminal procedure (with LaFave, Israel, and King) and is the author of a law school casebook on computer crime law. Kerr is frequently interviewed by major media outlets, and his scholarship and advocacy have been profiled in the New York Times and National Public Radio.

The GW Law Class of 2009 voted to award Professor Kerr the Distinguished Faculty Service Award, the Law School’s teaching award. Kerr has also represented criminal defendants in criminal cases. He recently briefed and argued a criminal appeal in the Sixth Circuit, and he represented Lori Drew pro bono against federal criminal charges brought in Los Angeles.

Before attending law school, Kerr earned undergraduate and graduate degrees in mechanical engineering. Kerr posts regularly at the popular blog “The Volokh Conspiracy,” available at The Volokh Conspiracy. He is a member of the American Law Institute, and he was recently elected to the steering committee of the Criminal Law and Individual Rights Section of the District of Columbia Bar.

Professor Kerr will be on leave for the 2011 Spring semester.


...




He's a far-Right law professor.
 
A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?


Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

....


More at the link.

You do not need to consider the Necessary and Proper clause if the underlying action is unconstitutional, it only comes into play if the action is constitutional. Kerr seems to assume it works the other way around, it doesn't.
 
Education
B.S.E., Princeton University; M.S., Stanford University; J.D., Harvard University
Biographical Sketch
Professor Kerr teaches criminal law, criminal procedure, and computer crime law. His articles have appeared in the Harvard Law Review, Yale Law Journal, Stanford Law Review, Columbia Law Review, University of Chicago Law Review, Michigan Law Review, Virginia Law Review, New York University Law Review, Georgetown Law Journal, Northwestern University Law Review, Texas Law Review, and many other journals. According to the most recent Leiter Rankings, Professor Kerr ranks #7 among criminal law scholars in the United States for citations in academic journals. Kerr’s scholarly articles also have been cited by most of the U.S. Courts of Appeals and over two dozen federal district courts.

Before joining the faculty in 2001, Professor Kerr was an honors program trial attorney in the Computer Crime and Intellectual Property Section of the Criminal Division at the U.S. Department of Justice as well as a special assistant U.S. attorney for the Eastern District of Virginia. He also is a former law clerk for Justice Anthony M. Kennedy of the United States Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit. In the summer of 2009 and 2010, he served as special counsel for Supreme Court nominations to Senator John Cornyn on the Senate Judiciary Committee. In 2006, Kerr was a visiting professor at the University of Chicago Law School. In the Spring 2011 semester, he will be a visiting professor at the University of Pennsylvania Law School.

Professor Kerr is a co-author of the leading casebook in criminal procedure with Yale Kamisar, Wayne LaFave, Jerold Israel, and Nancy King, now in its 12th Edition. He is also a co-author of the leading treatise in criminal procedure (with LaFave, Israel, and King) and is the author of a law school casebook on computer crime law. Kerr is frequently interviewed by major media outlets, and his scholarship and advocacy have been profiled in the New York Times and National Public Radio.

The GW Law Class of 2009 voted to award Professor Kerr the Distinguished Faculty Service Award, the Law School’s teaching award. Kerr has also represented criminal defendants in criminal cases. He recently briefed and argued a criminal appeal in the Sixth Circuit, and he represented Lori Drew pro bono against federal criminal charges brought in Los Angeles.

Before attending law school, Kerr earned undergraduate and graduate degrees in mechanical engineering. Kerr posts regularly at the popular blog “The Volokh Conspiracy,” available at The Volokh Conspiracy. He is a member of the American Law Institute, and he was recently elected to the steering committee of the Criminal Law and Individual Rights Section of the District of Columbia Bar.

Professor Kerr will be on leave for the 2011 Spring semester.


...




He's a far-Right law professor.

No he isn't. He is a law professer, and is generally right of center politically, but he is a far cry from being far-right. Regardless of his credentials, he is human, and occasionally wrong.

In fact, he admits he wants to be wrong about the post you quoted in the OP, but he is just applying the current doctrine as he understands it. Since his actual area of expertise lies in privacy and cybercrime his opinion on the Necessary and Proper clause as applied to the Commerce Clause is, at best, the opinion of an expert in other areas.
 
A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?


Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

....


More at the link.

You do not need to consider the Necessary and Proper clause if the underlying action is unconstitutional, it only comes into play if the action is constitutional. Kerr seems to assume it works the other way around, it doesn't.
Wow. How arrogant does one have to be to tell a guy with his standing in the legal world that you know the Constitution better than he does?

Pretty fucking arrogant.
 
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution.
This is incorrect. The Elastic Clause operates only in conjunction with powers specifially granted to the government by the Constitution. It says so itself.
 
A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?


Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

....


More at the link.

You do not need to consider the Necessary and Proper clause if the underlying action is unconstitutional, it only comes into play if the action is constitutional. Kerr seems to assume it works the other way around, it doesn't.
Wow. How arrogant does one have to be to tell a guy with his standing in the legal world that you know the Constitution better than he does?

Pretty fucking arrogant.

Funny how the incompetent always mistake confidence for arrogance.

His standing in the legal world? Do you think he is Blackstone or something? He is just a professor at a school and a blogger. His area of expertise does not apply to this, and he is quite capable of being wrong.
 
It would help to look at the full text of Article 1, Section 8:

rticle I, section 8 of the US Constitution

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [Altered by Amendment XVI "Income tax".]

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

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;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.



Unless the Obama Administration is going to argue that we will get our health care via the Post Office or some such nonsense, the Necessary & Proper clause is in support of and dependent upon the validity of ObamaCare being covered by the Commerce Clause.
 
Unless the Obama Administration is going to argue that we will get our health care via the Post Office or some such nonsense, the Necessary & Proper clause is in support of and dependent upon the validity of ObamaCare being covered by the Commerce Clause.
This is absolutely correct.
There's no sound argument that the power to regulate commerce includes the power to force people, as a requirement for living here, to purchase a specific commodity or service.
 
A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?


Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

....


More at the link.

You do not need to consider the Necessary and Proper clause if the underlying action is unconstitutional, it only comes into play if the action is constitutional. Kerr seems to assume it works the other way around, it doesn't.
Wow. How arrogant does one have to be to tell a guy with his standing in the legal world that you know the Constitution better than he does?

Pretty fucking arrogant.


The clause id question is below. I tseems pretty clear that the framers were referring to the powers enumerated above this clause. I don't see any other way to read it.

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

If the action does not concern the "foregoing powers" or the "other powers vested by this constitution", it's obviously not allowed in this clause.

This doesn't require legal expertise. Just the ability to read.
 
A 'Fairly Obvious' Error in Judge's Ruling on Health Care Reform?


Supporters of President Obama's health care reform are seizing on an analysis by The Volokh Conspiracy's Orin Kerr, who says the judge who found the insurance law unconstitutional made a "fairly obvious and quite significant error."

Kerr, a law professor at George Washington University, points to this passage in the ruling of Judge Henry Hudson:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
Kerr writes, "Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect." The Necessary and Proper clause gives Congress the power to do stuff not otherwise listed in the Constitution. Saying "that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause," means the Necessary and Proper clause is meaningless, Kerr says. The Supreme Court has not interpreted the clause that way, which means case law gives the federal government a "fairly straightfoward argument" in defending the health care law under the Necessary and Proper clause. Kerr continues: "Judge Hudson's error leads him to assume away as a matter of 'logic' what is the major question in the case. That is unfortunate, I think."

....


More at the link.

I find it interesting how the rightwingnuts are so enamoured of this decision that they are ignoring the fact that it flies in the face of the other district courts which have addressed the issue. Is it an error on Judge Hudson's part? Well, it is if the Circuit Court and Supreme Court say it is. On the other hand, if every one of the circuit courts rules the same way, then the supreme court has no reason to take the case unless it truly wants to and i'm not sure it would.

The logical fallacy of the pretend constitutionalists is that they read the words of the constitution but are ignorant as to what constitutional construction is and how is is done. They ignore hundreds of years of caselaw.
 
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