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Again, good point.
But a few questions:
Can you cite examples of how SCOTUS has put limitations on "General Welfare"?
Are these limitations/mergings for this case alone? Or preceding?
It's been my understanding that United States vs Butler, 1936, in which SCOTUS struck down portions of FDRs New Deal, gave Congress the discretion to define "General Welfare".
And if Congress alone has that power, then, it seems to me, a non lawyer, making that argument seems rather important to the case for the mandate being Constitutional.
Thoughts?
I am currently writing a book on this very subject! To answer that question you need to know the step by step history of that clause starting with the ideological origins of the constitution to the Articles, to Federalist 41 and then to the first debate on the subject in Hamiltons "Constitutionality of the National Bank" which must be read about 5 times to truly appreciate the beauty and far reaching fallacy of Hamiltons reasoning. In short, the General Welfare "clause" has always been a limitation and merged in with the enumerated powers even after Hamiltons theory has been far expanded by those not content with constitutionally limited governance.
The law is not general in nature like Social Security but specific. Therefore, it does not apply and the government concedes this point. There are more cases in the 80s that limit the general welfare clause. They are complicated and I do not wish to explain it for that reason. All you need to know now is that the Obama Administration is not arguing it for that very purpose. It does not apply. And trust me, if they thought it would add merit to their argument they would have used it. But they arent. They wouldnt throw away a tool that could perhaps secure themselves victory. They are, however, arguing the taxing power.
So are you more in line with Madison then as opposed to Hamilton? ( though there seems to be a debate on Madison's true opinion - See Crosskeys Politics and the Constitution in the History of the United States )
- That "General Welfare" is synonymous with the enumerated powers detailed in the Constitution and nothing more?
I am currently writing a book on this very subject! To answer that question you need to know the step by step history of that clause starting with the ideological origins of the constitution to the Articles, to Federalist 41 and then to the first debate on the subject in Hamiltons "Constitutionality of the National Bank" which must be read about 5 times to truly appreciate the beauty and far reaching fallacy of Hamiltons reasoning. In short, the General Welfare "clause" has always been a limitation and merged in with the enumerated powers even after Hamiltons theory has been far expanded by those not content with constitutionally limited governance.
The law is not general in nature like Social Security but specific. Therefore, it does not apply and the government concedes this point. There are more cases in the 80s that limit the general welfare clause. They are complicated and I do not wish to explain it for that reason. All you need to know now is that the Obama Administration is not arguing it for that very purpose. It does not apply. And trust me, if they thought it would add merit to their argument they would have used it. But they arent. They wouldnt throw away a tool that could perhaps secure themselves victory. They are, however, arguing the taxing power.
So are you more in line with Madison then as opposed to Hamilton? ( though there seems to be a debate on Madison's true opinion - See Crosskeys Politics and the Constitution in the History of the United States )
- That "General Welfare" is synonymous with the enumerated powers detailed in the Constitution and nothing more?
I have discovered new historical evidence, as if there needed to be more, that Madison was absolutely correct in the last 4 paragraphs in Federalist 41. I'm not ready to publish it yet but I'm certainly keeping it a secret until I have a copyright.
I don't agree. If you're employed and receive Health Insurance though your employer, you've already purchased and therefore the mandate forces nothing on you. ( you being used in the general sense, not specifically you )
That being said however, the mandate does place an incredible burden in the cracks, like the midde class self employed.
The 80-85% payout is, in theory, supposed to drive costs down ( my wife's company is already planning a premium decrease for next year because of it ) but in MOST cases, in the best case scenario, that payout will take three to five years to force the majority of premiums down, which leaves several years where it would be cheaper for some to simply pay the fine.
Sounds like you dont agree its a tax. Everything else you stated has nothing to do with the constitutionality of the law. However, if that is the case, the Obama Admin changed their minds and now calls it a tax for legal purposes of course. FDR did the same thing, however, now we refer to Social Security as a tax to falsely get around the fact that it's actually an un-enumerated power exercised by congress. As I said before, providing for the general welfare is not a plenary power. If it were there would be no use for the other enumerated powers.
Yes, I was speaking of the tax...sorry I should have been qualified that. My bad. It's late. Hehe
It's not going to be overturned.
49 states force drivers to purchase auto insurance ( New Hampshire being the lone exception ).
If that is Constitutional, then so is the health insurance mandate.
It's not going to be overturned.
49 states force drivers to purchase auto insurance ( New Hampshire being the lone exception ).
If that is Constitutional, then so is the health insurance mandate.
49 states do not require that you purchase car insurance as a condition of living. They require you purchase it in order to drive a car on state and federal roads AFTER you CHOSE to enter in to the automobile market. And remember, its the states that have the constitutional authority of the police power that require that you have insurance, not so much the federal government. Nonetheless, they dont require car insurance for driving on private property, nor do they require it for riding a bus, walking, riding a bike, etc... If youre justifying the healthcare law with car insurance you need to change your equivocation a bit. You need to concede that federal the government has the constitutional authority to force you to enter in to the car market, when you had no intention of doing so, so they can then tell you to buy car insurance to shift the cost from those poor souls with preexisting accidents, speeding tickets, and high insurance costs.
As it should.
I just can't imagine the SCOTUS not throwing it out.
1) That is a state, not the fed...It's not going to be overturned.
49 states force drivers to purchase auto insurance ( New Hampshire being the lone exception ).
If that is Constitutional, then so is the health insurance mandate.
As it should.
I just can't imagine the SCOTUS not throwing it out.
Given a precedent like Lopez it is clear the Court holds there are limits to federal power. This has to be one of them.
Lopez Holding: Possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.
Taxation withut representation is gay. It gets overturned.
.
I have to wonder if the arguments are academic anyway.
Don't we know how 8 of the judges are going to vote already, and that Kennedy is the swing vote? And if that's true (I'm sure as hell no judicial expert), isn't it reasonable to assume that Kennedy already has a pretty good idea of what he's gonna do?
.
Taxation withut representation is gay. It gets overturned.
Do you have a congressman? A senator?
You may not agree with their votes, but you're represented.
As it should.
I just can't imagine the SCOTUS not throwing it out.
Given a precedent like Lopez it is clear the Court holds there are limits to federal power. This has to be one of them.
It is clear? I think lawyers on both sides of the argument will concede that it is, in fact, not clear at all. While liberal blogs and SCOTUS commentators run to Lopez among many other basic commerce clause cases to justify forcing someone in to commerce, Lopez speaks of nothing with respect to the current argument. Lopez was a cheap and desperate attempt by the government to use the commerce clause to regulate individual carrying of guns. Sense the guns were not interstate commerce, nor did they effect interstate commerce, nor did they relate to interstate commerce as the government argued, the Government lost. Lopez has absolutely nothing to do with whether the government can force you in to commerce and the only limitation it placed on the commerce clause was that it had to be commerce. Which is not really a limitation at all unless youre a liberal and want to deem everything commerce, even though everything obviously isn't commerce, so you can regulate it through a back door congressional power that does not exist.
Lopez Holding: Possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.
Calling non commerce what it is, "not commerce," is hardly a limitation. It just means that the commerce clause only relates to commerce which is not only a "no f-ing duh statement but it also shows to the lengths that liberals will go through to evoke irrelevant clauses to make their case.
Given a precedent like Lopez it is clear the Court holds there are limits to federal power. This has to be one of them.
It is clear? I think lawyers on both sides of the argument will concede that it is, in fact, not clear at all. While liberal blogs and SCOTUS commentators run to Lopez among many other basic commerce clause cases to justify forcing someone in to commerce, Lopez speaks of nothing with respect to the current argument. Lopez was a cheap and desperate attempt by the government to use the commerce clause to regulate individual carrying of guns. Sense the guns were not interstate commerce, nor did they effect interstate commerce, nor did they relate to interstate commerce as the government argued, the Government lost. Lopez has absolutely nothing to do with whether the government can force you in to commerce and the only limitation it placed on the commerce clause was that it had to be commerce. Which is not really a limitation at all unless you’re a liberal and want to deem everything commerce, even though everything obviously isn't commerce, so you can regulate it through a back door congressional power that does not exist.
Lopez Holding: Possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.
Calling non commerce what it is, "not commerce," is hardly a limitation. It just means that the commerce clause only relates to commerce which is not only a "no f-ing duh” statement but it also shows to the lengths that liberals will go through to evoke irrelevant clauses to make their case.
Does Congress have the power to pass laws that protect one person from another person? Loss of life or abuse or fraud, specifically.
Taxation withut representation is gay. It gets overturned.
Do you have a congressman? A senator?
You may not agree with their votes, but you're represented.
Yeah.... I dont think he thought that trough.
The law is not general in nature like Social Security but specific. Therefore, it does not apply and the government concedes this point. There are more cases in the 80s that limit the general welfare clause. They are complicated and I do not wish to explain it for that reason. All you need to know now is that the Obama Administration is not arguing it for that very purpose. It does not apply. And trust me, if they thought it would add merit to their argument they would have used it. But they arent. They wouldnt throw away a tool that could perhaps secure themselves victory. They are, however, arguing the taxing power.
