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To interpret the Elastic Clause as noted in the OP - that it "gives Congress the power to do stuff not otherwise listed in the Constitution" - negates any need for anything else in the constitution, say nothing of the other 17 clauses in Article I Section 8.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.
Rather than make an appeal to popularity and then rant on about things you know nothing about, why don't you illustrate the error(s) in the decision.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.
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.
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.
Rather than make an appeal to popularity and then rant on about things you know nothing about, why don't you illustrate the error(s) in the decision.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.
They did not write this stuff in Hindu. It's all pretty clear. Why the question?
Rather than make an appeal to popularity and then rant on about things you know nothing about, why don't you illustrate the error(s) in the decision.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.
that *I* don't know about? lol
you rightwingnuts are so funny.
my point was that there are two other courts that disagree with this judge. the happy dance that the right is doing is kind of weird in light of that.
a bit of reality for the uniformed like you: the district court is only the trial level court for each of these decisions. they then go to their respective circuit courts. IF there is a disparity in what the circuit courts do, the matter will go to the supreme court who would, in the case of such disparity, have to resolve the issue.
sorry if the process confuses you.
as for the decision, you already saw what was addressed in the O/P. Why would I elaborate on that?
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?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.
Pretty fucking arrogant.
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.
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.
Some of you seem to be missing the point of this thread. See this bit from the actual decision:
The Commonwealth does not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce. Its lens is narrowly focused on the enforcement mechanism to which it is hinged, the Minimum Essential Coverage Provision.
The Commonwealth argues that the Necessary and Proper Clause cannot be employed as a vehicle to enforce an unconstitutional excercise of Commerce Clause power, no matter how well intentioned.
In other words, the regulatory aspects of the ACA are all right because they do in fact apply to something that in the aggregate has an impact on interstate commerce; Virginia focused like a laser on the mandate and, in doing so, essentially granted this point.
The error here is the logical disconnect between the two paragraphs there. If the guaranteed issue provision is in fact a constitutional exercise of the Commerce Clause and the mandate is accepted as its "enforcement mechanism," then the second paragraph is inapplicable. The argument that the Necessary and Proper Clause "cannot be employed as a vehicle to enforce an unconstitutional excercise of Commerce Clause power" is irrelevant when you've already granted that the regulation it's enforcing is constitutionally valid.
So let me try and break this down:
- The N&P clause allows for the exercise of powers not specifically enumerated if those powers are "necessary and proper" for exercising a power that is enumerated and they don't specifically conflict with something else in the Constitution.
- Virginia accepts that the non-mandate parts of the insurance regulatory apparatus set up in the ACA are a valid exercise of constitutional authority.
- Virginia (and this judge, apparently) then do a little backflip and suggest the mandate is enforcing an unconstitutional exercise of Congressional power. Even though they've already granted that the provisions it's enforcing are a constitutional exercise of Congressional power.
Do you see why this is logically incoherent?
You don't get it. If an otherwise Constitutionally valid law is to be enforced in some unContitutional manner, then it is the enforcement that must be enjoined -- as a violation of the Constitution.
What ENUMERATED power permits Congress to tell me that I am obliged to buy ANY insurance?
Yes - that -you- don't know about, as you continue to make very clear.that *I* don't know about? lolRather than make an appeal to popularity and then rant on about things you know nothing about, why don't you illustrate the error(s) in the decision.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.
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.
Some of you seem to be missing the point of this thread. See this bit from the actual decision:
The Commonwealth does not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce. Its lens is narrowly focused on the enforcement mechanism to which it is hinged, the Minimum Essential Coverage Provision.In other words, the regulatory aspects of the ACA are all right because they do in fact apply to something that in the aggregate has an impact on interstate commerce; Virginia focused like a laser on the mandate and, in doing so, essentially granted this point.
The Commonwealth argues that the Necessary and Proper Clause cannot be employed as a vehicle to enforce an unconstitutional excercise of Commerce Clause power, no matter how well intentioned.
The error here is the logical disconnect between the two paragraphs there. If the guaranteed issue provision is in fact a constitutional exercise of the Commerce Clause and the mandate is accepted as its "enforcement mechanism," then the second paragraph is inapplicable. The argument that the Necessary and Proper Clause "cannot be employed as a vehicle to enforce an unconstitutional excercise of Commerce Clause power" is irrelevant when you've already granted that the regulation it's enforcing is constitutionally valid.
So let me try and break this down:
- The N&P clause allows for the exercise of powers not specifically enumerated if those powers are "necessary and proper" for exercising a power that is enumerated and they don't specifically conflict with something else in the Constitution.
- Virginia accepts that the non-mandate parts of the insurance regulatory apparatus set up in the ACA are a valid exercise of constitutional authority.
- Virginia (and this judge, apparently) then do a little backflip and suggest the mandate is enforcing an unconstitutional exercise of Congressional power. Even though they've already granted that the provisions it's enforcing are a constitutional exercise of Congressional power.
Do you see why this is logically incoherent?
You don't get it. If an otherwise Constitutionally valid law is to be enforced in some unContitutional manner, then it is the enforcement that must be enjoined -- as a violation of the Constitution.
If by "unconstitutional" you mean "not explicitly mentioned in the Constitution" then this is a bizarre argument, precisely because the Necessary and Proper Clause is the bit that gives Congress the power to enforce laws made in pursuance of other enumerated powers. Perhaps you could lay out for us what you consider to be Constitutional enforcement mechanisms? (As the Marshall Court noted so many years ago, if you read the Constitution the way you're apparently reading it, the federal government can't actually punish people for breaking most of its laws, aside from the few areas in which punishment is explicitly mentioned in the Constitution, like in cases of counterfeiting and crimes on the high seas--do you really not believe that the federal government can legitimately punish you for stealing mail?)
Regardless, this argument was considered and settled over two centuries ago. Or as Madison noted in the Federalist papers:
Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.They didn't write 'em down, but they're there.
The argument being made by the government in this suit is that the power to mandate coverage is necessary and proper for carrying out its (unchallenged, even by Virginia in this case) power to regulate health insurance under the Commerce Clause.What ENUMERATED power permits Congress to tell me that I am obliged to buy ANY insurance?
The argument that N&C doesn't apply because the power that the mandate is being instituted to carry out is unconstitutional simply fails, since everyone in this case was in agreement that the insurance market regulations are Constitutional.
Yes - that -you- don't know about, as you continue to make very clear.that *I* don't know about? lolRather than make an appeal to popularity and then rant on about things you know nothing about, why don't you illustrate the error(s) in the decision.
Now...why don't you illustrate the error(s) in the decision?
It amazes me how people can read plain English and say it means something other than it days.
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.
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?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.
Pretty fucking arrogant.
