Constitutional ignorance on display

[Ravi]

It's entirely possible that the USSC could rule that the federal government does not have the authority to impose a mandate that everyone must purchase health insurance, and therefore Obamacare is unconstitutional. This would not automatically mean that states cannot impose such a mandate.

I thought that was obvious.

I think you are incorrect. If SCOTUS said that the feds couldn't outlaw weed then the states couldn't either.

depends on why the scotus said so, if the scotus said the feds couldn't outlaw it because it is a states right issue....

sigh...but then we come full circle...the state can't make unconstitutional a federally protected right.

 

[Yurt]

Yes and marriage laws are statutes.

Do yo want the full sidetrack into marriage and exactly what DOMA does as opposed to what the State does and why? It's a long explanation. You might prefer to read Yurt's brief.

Yurt wears briefs? Do they have polka dots?

if i don't wear briefs, would you still read me?

 

[Valerie]

I think it comes down to this statement by goldcatt and what it means.


"There are some things the states can do that are reserved to them and them alone. The Feds aren't empowered to do it."



Yes, there are some things the states can do that are reserved for them and them alone and the feds are not empowered to do it...Such as in Marriage law...BUT this does not necessarily translate to health care mandate being federally unconstitutional.

 

[Yurt]

I think you are incorrect. If SCOTUS said that the feds couldn't outlaw weed then the states couldn't either.

depends on why the scotus said so, if the scotus said the feds couldn't outlaw it because it is a states right issue....

sigh...but then we come full circle...the state can't make unconstitutional a federally protected right.

thats true, but your statement that failfold quoted, wasn't stated as explicit as that

if right is protected by the US constitution, the states cannot make that right unprotected by virtue of their laws or constitution

 

[Ravi]

Do yo want the full sidetrack into marriage and exactly what DOMA does as opposed to what the State does and why? It's a long explanation. You might prefer to read Yurt's brief.

Yurt wears briefs? Do they have polka dots?

if i don't wear briefs, would you still read me?

How would I know?

 

[Yurt]

Yurt wears briefs? Do they have polka dots?

if i don't wear briefs, would you still read me?

How would I know?

because i told you i don't wear briefs

i wear boxer briefs, whitey tighties are for wimps with small......................

 

[goldcatt]

I think it comes down to this statement by goldcatt and what it means.


"There are some things the states can do that are reserved to them and them alone. The Feds aren't empowered to do it."



Yes, there are some things the states can do that are reserved for them and them alone and the feds are not empowered to do it...Such as in Marriage law...BUT this does not necessarily translate to health care mandate being federally unconstitutional.

Right.

The grounds the District Court used to find the mandate unconstitutional were grounds that don't apply to the States, it's roughly a question of whether Congress has the power under the commerce clause to force individuals to make a purchase and levy a penalty for not doing so.

The fact that it's health insurance rather than, say, toothpaste or horseshoes is irrelevant. It's the verb that's the issue not the noun.

It's already well-established the Feds can regulate health insurance in general under the commerce clause. But they've only had cases where the Feds outlawed the purchase of something, not forced the purchase of something.

So....the Feds are arguing they can do this. The State of VA is arguing, among other things, that they can't. The trial court held in favor of VA and it's shooting up to the Circuit Court of Appeals next.

But if this were a strictly State mandate, the commerce clause (which only applies to Congress and the agencies to which it delegates its authority) wouldn't be at issue. It doesn't apply to the states. The issues would be different because Congress would not be involved.

Make more sense?

 

[Valerie]

I think it comes down to this statement by goldcatt and what it means.


"There are some things the states can do that are reserved to them and them alone. The Feds aren't empowered to do it."



Yes, there are some things the states can do that are reserved for them and them alone and the feds are not empowered to do it...Such as in Marriage law...BUT this does not necessarily translate to health care mandate being federally unconstitutional.

Right.

The grounds the District Court used to find the mandate unconstitutional were grounds that don't apply to the States, it's roughly a question of whether Congress has the power under the commerce clause to force individuals to make a purchase and levy a penalty for not doing so.

The fact that it's health insurance rather than, say, toothpaste or horseshoes is irrelevant. It's the verb that's the issue not the noun.

It's already well-established the Feds can regulate health insurance in general under the commerce clause. But they've only had cases where the Feds outlawed the purchase of something, not forced the purchase of something.

So....the Feds are arguing they can do this. The State of VA is arguing, among other things, that they can't. The trial court held in favor of VA and it's shooting up to the Circuit Court of Appeals next.

But if this were a strictly State mandate, the commerce clause (which only applies to Congress and the agencies to which it delegates its authority) wouldn't be at issue. It doesn't apply to the states. The issues would be different because Congress would not be involved.

Make more sense?

Yes. But in no case would a state ever being doing anything that could be considered federally unconstitutional, correct?

 

[goldcatt]

I think it comes down to this statement by goldcatt and what it means.


"There are some things the states can do that are reserved to them and them alone. The Feds aren't empowered to do it."



Yes, there are some things the states can do that are reserved for them and them alone and the feds are not empowered to do it...Such as in Marriage law...BUT this does not necessarily translate to health care mandate being federally unconstitutional.

Right.

The grounds the District Court used to find the mandate unconstitutional were grounds that don't apply to the States, it's roughly a question of whether Congress has the power under the commerce clause to force individuals to make a purchase and levy a penalty for not doing so.

The fact that it's health insurance rather than, say, toothpaste or horseshoes is irrelevant. It's the verb that's the issue not the noun.

It's already well-established the Feds can regulate health insurance in general under the commerce clause. But they've only had cases where the Feds outlawed the purchase of something, not forced the purchase of something.

So....the Feds are arguing they can do this. The State of VA is arguing, among other things, that they can't. The trial court held in favor of VA and it's shooting up to the Circuit Court of Appeals next.

But if this were a strictly State mandate, the commerce clause (which only applies to Congress and the agencies to which it delegates its authority) wouldn't be at issue. It doesn't apply to the states. The issues would be different because Congress would not be involved.

Make more sense?

Yes. But in no case would a state ever being doing anything that could be considered federally unconstitutional, correct?

It depends on the grounds. Not all of the constitution applies to the states.

For anything that applies to the States, no. A state cannot do things that the Feds cant do. So if the issue is speech, or press, or search and seizure, or reading Miranda rights, or equal protection....no, if the States can't do it the Feds can't do it and vice versa.

But for something like the 7th Amendment guarantee of a jury trial for civil cases at law? That has never been incorporated to the States, so the States can have bench trials where the judge acts as the jury on cases where the Feds cannot. For the Feds, it would be unconstitutional. But that right isn't extended to the States and the States don't have to protect it.

 

[Yurt]

Right.

The grounds the District Court used to find the mandate unconstitutional were grounds that don't apply to the States, it's roughly a question of whether Congress has the power under the commerce clause to force individuals to make a purchase and levy a penalty for not doing so.

The fact that it's health insurance rather than, say, toothpaste or horseshoes is irrelevant. It's the verb that's the issue not the noun.

It's already well-established the Feds can regulate health insurance in general under the commerce clause. But they've only had cases where the Feds outlawed the purchase of something, not forced the purchase of something.

So....the Feds are arguing they can do this. The State of VA is arguing, among other things, that they can't. The trial court held in favor of VA and it's shooting up to the Circuit Court of Appeals next.

But if this were a strictly State mandate, the commerce clause (which only applies to Congress and the agencies to which it delegates its authority) wouldn't be at issue. It doesn't apply to the states. The issues would be different because Congress would not be involved.

Make more sense?

Yes. But in no case would a state ever being doing anything that could be considered federally unconstitutional, correct?

It depends on the grounds. Not all of the constitution applies to the states.

For anything that applies to the States, no. A state cannot do things that the Feds cant do. So if the issue is speech, or press, or search and seizure, or reading Miranda rights, or equal protection....no, if the States can't do it the Feds can't do it and vice versa.

But for something like the 7th Amendment guarantee of a jury trial for civil cases at law? That has never been incorporated to the States, so the States can have bench trials where the judge acts as the jury on cases where the Feds cannot. For the Feds, it would be unconstitutional. But that right isn't extended to the States and the States don't have to protect it.

brilliant analysis....this is also why the second amendment is such a hot topic issue today, because it has not been applied to the states like the 14th etc....

 

[Dont Taz Me Bro]

There are some things that are reserved to the States, and the Feds can't touch them.

Health insurance isn't one of them.

It will be after the SCOTUS says it is.

 

[Dont Taz Me Bro]

There is NOTHING the state can do that is unconstitutional at a federal level.

My point to manipoo was pretty simple. He claimed masscare was constitutional at the state level but not at the federal level. That is impossible.

Not entirely true. There are some things the states can do that are reserved to them and them alone. The Feds aren't empowered to do it. One example would be marriage and family law (questions of DOMA constitutionality aside). Federal courts are barred from hearing things like custody and divorce cases.

There are also parts of the Bill of Rights that aren't incorporated to the States, like the 7th.

But you're right about health insurance in general. The question on constitutionality that's a case of first impression is enforcing the mandate with a tax/penalty, it's a commerce clause issue not a 10th Amendment issue.

I'm not totally getting what you are saying, can you give me a concrete example? Just because the feds can't hear divorce cases doesn't mean the state can deny someone's civil rights in a divorce case.

Ravi, are you being serious?

 

[Dont Taz Me Bro]

I think they will, too...after all, income tax is constitutional no matter how people pretend that it isn't.

The income tax is legal because the Constitution was amended in 1913 to allow for it. It's the 16th Amendment. Prior to that, it was illegal. When you hear people today say it's illegal they are referring to a conspiracy theory that the 16th Amendment was never actually ratified by 2/3 of the states.

 

[goldcatt]

There are some things that are reserved to the States, and the Feds can't touch them.

Health insurance isn't one of them.

It will be after the SCOTUS says it is.

The State lost the 10th Amendment argument. It's preserved for appeal, but it's not going to fly there either.

The question will be decided on commerce clause grounds and, IMO, probably examine the scope of the necessary and proper clause.

Which BTW is the plum I'm not sure Scalia will be able to resist

 

[Dont Taz Me Bro]

The State lost the 10th Amendment argument. It's preserved for appeal, but it's not going to fly there either.

The question will be decided on commerce clause grounds and, IMO, probably examine the scope of the necessary and proper clause.

Which BTW is the plum I'm not sure Scalia will be able to resist

The Commerce Clause was not written so that the federal government can force people to buy something. I believe the five Republicans on the SCOTUS will come to that conclusion as well.

 

[goldcatt]

The State lost the 10th Amendment argument. It's preserved for appeal, but it's not going to fly there either.

The question will be decided on commerce clause grounds and, IMO, probably examine the scope of the necessary and proper clause.

Which BTW is the plum I'm not sure Scalia will be able to resist

The Commerce Clause was not written so that the federal government can force people to buy something. I believe the five Republicans on the SCOTUS will come to that conclusion as well.

It depends what the Circuit does and what else is on their docket to strike deals with. But really? If Scalia has a chance to take his theory on commerce from a concurring opinion in Gonzales to precedential in this one, I'm pretty sure he'll split off. That would narrow the commerce clause and split the necessary and proper clause into its own separate analysis - effectively broadening it, but only after the narrower commerce clause threshhold is reached.

But he'd have to concede the point on commerce to do it.

When you get to that level the players no longer matter, they play for principles.

 

[Ravi]

I think they will, too...after all, income tax is constitutional no matter how people pretend that it isn't.

The income tax is legal because the Constitution was amended in 1913 to allow for it. It's the 16th Amendment. Prior to that, it was illegal. When you hear people today say it's illegal they are referring to a conspiracy theory that the 16th Amendment was never actually ratified by 2/3 of the states.

I'm sleepy so I will think about what you've said. But just because an amendment is put forth and ratified doesn't mean that it was a needed amendment. For instance, I don't think you can limit anyone's right to vote because they are black or female but somehow we needed amendments to rectify a situation that was already unconstitutional.

 

[goldcatt]

I think they will, too...after all, income tax is constitutional no matter how people pretend that it isn't.

The income tax is legal because the Constitution was amended in 1913 to allow for it. It's the 16th Amendment. Prior to that, it was illegal. When you hear people today say it's illegal they are referring to a conspiracy theory that the 16th Amendment was never actually ratified by 2/3 of the states.

I'm sleepy so I will think about what you've said. But just because an amendment is put forth and ratified doesn't mean that it was a needed amendment. For instance, I don't think you can limit anyone's right to vote because they are black or female but somehow we needed amendments to rectify a situation that was already unconstitutional.

Some of the States and territories did choose to allow women and blacks to vote. But the Amendments meant they had to allow it. That's the difference.

It wasn't unconstitutional to exclude them prior to the 15th and 20th Amendments because of Section 2 of the 14th, which lays out a penalty for not allowing certain people to vote. And guess who had to be allowed to vote or the state would lose representation? Two guesses....

The voting amendments rectified that situation.

 

[jillian]

True, but at the state level mandatory insurance isn't unconstitutional.

If it isn't unconstitutional at the state level it can't be unconstitutional at the federal level.

She's saying if it is NOT UNconstitutional at the state level, meaning if it IS constitutional at the state level, then it can not be unconstitutional at the federal level...

actually something can be unconstitutional at the state level but not at the federal level because a state constitution can give greater protections than the federal constitution, but not less. i have to go back and look at the context of the initial statement, though.

 

[manifold]

Look, it's all academic until the USSC says it isn't.

And the fact remains that Obamacare is precedent setting in that it's the first federal mandate to purchase anything. And if the USSC rules that this is unconstitutional, not because it violates rights, but because it's not a power granted to the federal government by the Constitution, then it wouldn't strike down Romneycare. If on the other hand they say it's a violation of individual rights, then yes, that would also strike down Romneycare.

I wouldn't necessarily bet on either, both both are still academically reasonable and plausible.