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

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.

Regressives make me want to vomit.

What happens to the people that can pay the fine? The eventually go to jail for theft.

All hail the regressive dictatorship!

This will set up the precidence that goverment can do anything it wants "for our own good"

All hail the regressive dictatorship!


Are you aware that we fought against an all powerfull government to get away from shit like this?

All hail the regressive dictatorship!
I hate Regressives, too. That's why I always vote for the Progressive.
 
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.

This is exactly what Kerr did to Judge Hudson. You are right, Kerr seems arrogant to do such a thing.
The difference being Kerr has the standing in the legal community. Q.Windbag, not so much.
 
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.

Regressives make me want to vomit.

What happens to the people that can pay the fine? The eventually go to jail for theft.

All hail the regressive dictatorship!

This will set up the precidence that goverment can do anything it wants "for our own good"

All hail the regressive dictatorship!


Are you aware that we fought against an all powerfull government to get away from shit like this?

All hail the regressive dictatorship!
I hate Regressives, too. That's why I always vote for the Progressive.

That's funny!

The funny part is that some people actually think progressive means progress. :cuckoo:

When what they really want to do is regress back to a point where the government has total controll. Like in the times before The Revolution.
 
This is exactly what Kerr did to Judge Hudson. You are right, Kerr seems arrogant to do such a thing.

Actually, he was referring to the pretend constitutionalists. Nice try.

Yes, I know who he was referring to. However, I see the argument as a comparison between Kerr and Hudson. I think Hudson is someone who is more qualified to interpret the Constitution than Kerr.
 
This whole issue Kerr raised is important for one compelling reason.

He is full of shit and relying on a completely bizarre extension of the Necessary and proper clause.

But IF this should happen to be upheld by the SC they have to rule on the limitations of the commerce clause or the N & P clause. If it isn't upheld then new latitude will be preserved for one or the other or both of those clauses.

We don't need any expansion of the powers afforded the feds via the commerce clause, and we really don't need any open ended clauses that allow the feds to invent powers from thin air.

This should be a slam dunk at the SC.
 
It amazes me how people can read plain English and say it means something other than it days.

That's the foundation of our civil law system where diverse legal interpretations are presented and judged on the merits of a specific case in a specific dynamic. While inefficient, it's better than a code law system due to the theoretically diminished capability for the innocent to be punished.

If that is the basis of our system how do you explain mandatory sentencing?
 
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.

This is exactly what Kerr did to Judge Hudson. You are right, Kerr seems arrogant to do such a thing.
The difference being Kerr has the standing in the legal community. Q.Windbag, not so much.

How do you know I do not have that standing? For all you know I could be a coblogger on Volokh Conspiracy.

By the way, I do comment there occasionally, and Kerr has never acted like my opinion is worthless simply because he disagrees with it.
 
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This is exactly what Kerr did to Judge Hudson. You are right, Kerr seems arrogant to do such a thing.
The difference being Kerr has the standing in the legal community. Q.Windbag, not so much.

How do you know I do not have that standing? For all you know I could be a coblogger on Volokh Conspiracy.

By the way, I do comment there occasionally, and Kerr has never acted like my opinion is worthless simply because he disagrees with it.
I haven't said your opinion is worthless. Just that Kerr's is credentialed.

I think a conservative law professor criticizing a ruling by a conservative judge is newsworthy and noteworthy. Especially at that level of jurisprudence.
 
The difference being Kerr has the standing in the legal community. Q.Windbag, not so much.

How do you know I do not have that standing? For all you know I could be a coblogger on Volokh Conspiracy.

By the way, I do comment there occasionally, and Kerr has never acted like my opinion is worthless simply because he disagrees with it.
I haven't said your opinion is worthless. Just that Kerr's is credentialed.

I think a conservative law professor criticizing a ruling by a conservative judge is newsworthy and noteworthy. Especially at that level of jurisprudence.

Conservatives often criticize each other. That is because, unlike liberals, conservatives are capable of thought. Besides, this guy is a blogger, and not at any level of jurisprudence.
 
The difference being Kerr has the standing in the legal community. Q.Windbag, not so much.

How do you know I do not have that standing? For all you know I could be a coblogger on Volokh Conspiracy.

By the way, I do comment there occasionally, and Kerr has never acted like my opinion is worthless simply because he disagrees with it.
I haven't said your opinion is worthless. Just that Kerr's is credentialed.

I think a conservative law professor criticizing a ruling by a conservative judge is newsworthy and noteworthy. Especially at that level of jurisprudence.

Dr. Ass, a noted Doctor of Proctology, disputes the findings of the Centers for Disease Control on the risk of mutation in the Avian Flu Virus. You know, at that level of medicine, it would be just wrong for a less famous doctor (a microbiologist specializing in genetic mutation and disease transmission) to discuss, critically, the medical analysis by Dr. Ass.

Uhm. No. That wouldn't be wrong at all, frankly.

Kerr might be a kick-ass legal analyst in matters of criminal law. He may even have a fair working knowledge of Constitutional Law. But that doesn't mean he is anywhere nearly as well qualified to discuss Constitutional Law as he would be to discuss criminal law. And if someone with legal training considers Kerr's analysis of the Constitutional grounding of Judge Hudson's decision to be misguided, there's nothing wrong or arrogant in critically discussing the analysis that leads to that conclusion.
 
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.

Sounds like the liberal judges who voted against the lawsuit are the morons.
 
The difference being Kerr has the standing in the legal community. Q.Windbag, not so much.

How do you know I do not have that standing? For all you know I could be a coblogger on Volokh Conspiracy.

By the way, I do comment there occasionally, and Kerr has never acted like my opinion is worthless simply because he disagrees with it.
I haven't said your opinion is worthless. Just that Kerr's is credentialed.

I think a conservative law professor criticizing a ruling by a conservative judge is newsworthy and noteworthy. Especially at that level of jurisprudence.

By your own measure that means you shouldn't have criticized Bush's economic policies, after all he was credentialed.
 
Kerr makes a pair of huge blunders himself.

If the Necessary and Proper Clause can be used to do anything, there is no need for a constitution, and no state would have signed on to unchecked federal power.

Secondly, the constitution specifically limits the federal government by the Enumerated Powers clause stating flatly that unless they are permitted by the constitution to do something, they cannot, and that right is given to the states.

Therefore, Kerr's legal reasoning fails on 2 fronts.
 
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.

Regressives make me want to vomit.

What happens to the people that can pay the fine? The eventually go to jail for theft.

All hail the regressive dictatorship!

This will set up the precidence that goverment can do anything it wants "for our own good"

All hail the regressive dictatorship!


Are you aware that we fought against an all powerfull government to get away from shit like this?

All hail the regressive dictatorship!
I hate Regressives, too. That's why I always vote for the Progressive.
Lemmings have progress too. Right off a cliff and to their own destruction. An apt analogy I believe.
 

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