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

[M14 Shooter]

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.

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 cited interpretation of the EC is, without question, as incorrect as incorrect can be.

 

[M14 Shooter]

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.

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.

 

[code1211]

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.

The commerce Clause:

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

In the past, each state had the right and the responsibility to regulate the health insurance industry. This is one reason why Health Insurance could not be sold across state lines. This is why every state has an office like an insurance commissioner.

The commerce clause is pretty specific. I don't see in any part a referance to individuals. There were other parts of the Constitution in which individuals are mentioned.

"Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Are we to assume that the framers were a bunch of boobs who really did not understand the language or perhaps did not understand the importance of including or excluding a particular word from a particular clause?

They saw the Constitution as a document to regulate actions at the Federal level and to referee issues between the states, other countries or the Indians. They did not write this stuff in Hindu. It's all pretty clear. Why the question?

 

[Synthaholic]

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.

Bingo! Thank you.

 

[boedicca]

Question for the Big Government Supporters: If The Constitution basically allows Congress to do whatever it feels like, why did the Founders bother writing it in the first place?

 

[jillian]

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.

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.

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?

 

[jillian]

They did not write this stuff in Hindu. It's all pretty clear. Why the question?

It's only "pretty clear" if you don't know anything about how the commerce clause has been construed over the last 200 plus years.

Constitutionalists argue over these things and can't come up with absolutes but you can?

think about that some.

 

[WillowTree]

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.

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.

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?

That's why we haz a supreme court innit honey bun?

 

[Liability]

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 ******* arrogant.

It takes zero arrogance to correctly state a principle of law. Your appeal to "authority" is fallacious. Kerr can be a scholar in criminal law and yet still be "off" with regard to Constitutional analysis.

People telling other experts that they're "wrong" is actually quite common in legal argument. You can call in the heavy hitters. The guys with hefty resumes and credentials coming outta their asses, and the better legal argument is supposed to prevail anyway.

As an aside, and out of curiosity, in what way does Kerr's academic expertise in Criminal Law make his assertions about the Necessary and Proper Clause all that persuasive?

 

[Quantum Windbag]

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.

Actually, it doesn't fly in the face of anything. The other cases were brought by individuals or groups, except for the one in Florida that is still being heard. Virginia challenged the law because it directly conflicted with a state law that prohibits the government from imposing mandates on individuals. The grounds used were different than the other district court decisions.

You are a lawyer, you know how it works. Besides, even if the other cases were decided on the same grounds, this case still holds sway in that District. All I have to do to avoid this whole mess is moved there and no one can force me to buy insurance, unless a higher court overturns it.

I would also like you to cite case law that gives Congress unlimited ability to make laws that have nothing to do with commerce. You could try using Lopez as a starting point, except that SCOTUS clearly said Congress cannot just claim that something affects commerce in oder to make a law about it.

 

[Greenbeard]

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:

1. 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.
2. Virginia accepts that the non-mandate parts of the insurance regulatory apparatus set up in the ACA are a valid exercise of constitutional authority.
3. 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?

 

[Liability]

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:

1. 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.
2. Virginia accepts that the non-mandate parts of the insurance regulatory apparatus set up in the ACA are a valid exercise of constitutional authority.
3. 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.

Secondly, there is no merit to the proposition that the Necessary and Proper Clause permits Congress to legislate outside the bounds of its enumerated powers. Yes, Congress may enact something within that realm of enumerated powers even if there is no explicit authority for that precise measure. It simply has to be necessary and proper WITHIN an enumerated power (and not be otherwise prohibited). But it still has to be within the ambit of a power that IS enumerated.

What ENUMERATED power permits Congress to tell me that I am obliged to buy ANY insurance?

 

[Greenbeard]

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.

What ENUMERATED power permits Congress to tell me that I am obliged to buy ANY insurance?

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.

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.

 

[M14 Shooter]

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.

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.

that *I* don't know about? lol

Yes - that -you- don't know about, as you continue to make very clear.

Now...why don't you illustrate the error(s) in the decision?

 

[Quantum Windbag]

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:

1. 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.
2. Virginia accepts that the non-mandate parts of the insurance regulatory apparatus set up in the ACA are a valid exercise of constitutional authority.
3. 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?

It amazes me how people can read plain English and say it means something other than it days.

This decision focuses on a single provision of the law, the mandates. Judge Hudson understands that the Necessary and Proper clause allows Congress to make laws to enforce its constitutional powers, and admits that the other provisions of this law are covered under that clause. The reason he was mentioning this is because the possibility exists that the mandate is not severable, and he does not know what impact finding the mandate unconstitutional will have on the entire law if that is the case.

He then points out he doesn't have the authority, or understand the facts well enough, to decide that issue. That, however, does not negate the fact that the mandate is unconstitutional. Nor does the mandate being unconstitutional make the rest of the law unconstitutional, because the rest of the law is clearly permissible under the Commerce Clause, and and regulations written as a result are permitted under the Necessary and Proper clause.

It is not the judge that is making a logical backflip here, it is you.

 

[Quantum Windbag]

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.

What ENUMERATED power permits Congress to tell me that I am obliged to buy ANY insurance?

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.

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.

The mandate is not an insurance regulation, it is an order to the citizens of this country to buy a product. You can sit there and twist the language until you are reading it backward, but it will not change the fact that the mandate itself is not covered by the Necessary and Proper clause.

 

[Quantum Windbag]

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.

that *I* don't know about? lol

Yes - that -you- don't know about, as you continue to make very clear.

Now...why don't you illustrate the error(s) in the decision?

Perhaps she does not want to illustrate the errors in the decision because she thinks it is right.

 

[asterism]

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.

 

[Two Thumbs]

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!

 

[Christopher]

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 ******* arrogant.

This is exactly what Kerr did to Judge Hudson. You are right, Kerr seems arrogant to do such a thing.