Balkinization: Broccoli vs. The Plague

Comments:

3 AND 1.

3 because, really, somebody thinking something is a good idea doesn't magically cause the Constitution to change so as to make it constitutional. The Constitution is a real world document, as such it's short of perfection.

1, because the states mostly would.

"This lack of authority in the face of a terrible disease scares me far more than having to buy broccoli when I don't want to."

What's the problem here? You don't think states are real, or something? They're just figments of our imagination? Why isn't it sufficient to assuage your fears, to note that the authority does exist, at the state level?

I really would like an answer to that, it's a serious question. I encounter so many people on the 'liberal' end of the spectrum, who act as though, if something doesn't happen at the federal level, it doesn't happen at all.

Don't you guys believe states exist?

# posted by

Brett : 10:21 PM

Not really. Even Randy Barnett would concede that Congress can either (1) conscript everyone into the military and then impose vaccination on members of the military, or (2) levy a tax -- explicitly called a "tax" -- that can be waived if people take vaccination. Both options would resolve your nightmare.

Now you might respond that this takes some force out of the broccoli hypothetical in that all we are talking about is whether Congress explicitly calls something conscription and calls something a tax. But as I understand Randy's argument, the point is that there is incredibly strong political aversion to open conscription and calling something a tax, so this kind of explicit statement rule will have real constraining effect on Congress's power.

# posted by

tjchiang : 10:34 PM

In your hypothetical, what Congress really needs is the power to make people take the vaccine, not to buy it. So therefore Congress must have the power to make people eat broccoli. And go to the doctor. And exercise. And have babies (we need more workers to generate the taxes needed to fund Social Security and Medicare).

# posted by

mls : 10:36 PM

The issue of whether Congress can make you take a vaccine (or eat broccoli) against your will strikes me as a Due Process question rather than a Commerce Clause issue, though that is debatable. And I agree that you can support the activity/inactivity distinction if you answer #1 to the disease hypo, but only if you drop the broccoli argument.

Finally, I do think states are real. I live in one. Our state bird in the cardinal.

# posted by

Gerard N. Magliocca : 11:03 PM

I very much believe in states. I also believe none of them have ever passed a broccoli mandate or anything like it, despite the terrifying power to do so. Yet people worry about such things.

# posted by

Steve M : 11:55 PM

3) A document need not be perfect. But it should empower the government to handle an emergency that threatens the society's existence. An interpretation of the document that would deny the government the authority to handle such an emergency (or force it to jump through hurdles to enact legislation) thus becomes problematic.

1) No one is denying that states are real. But states suffer from collective-action problems--they don't all act, or they don't all act consistently, or they act in self-interested ways that provide competitive advantage over other states. That the states "mostly would" order mandatory vaccines does not mean all would or that all would in a way that addresses the problem. The Framers' purpose in having a federal government was to act in those areas where there is a collective-action problem and where only singular action can address a national problem at the national level (even if that problem also could be addressed by the states).

# posted by

Howard Wasserman : 7:26 AM

If states are real, why can't you admit they're part of "the government"? If states have a power, "the government" has it. Period.

"The Framers' purpose in having a federal government was to act in those areas where there is a collective-action problem"

I have observed before that this is a standard technique for circumventing the constitution we actually have:

1. Extract a high level principle from the text. (Ignore any other principles you find that might muddy the picture.)

2. Apply that principle in a way which violates what the text actually says.

Indeed, the founders wanted the federal government to solve collective action problems. They didn't, however, write a constitution with the following clause: "Congress shall have power to solve collective action problems." Rather, they gave Congress specific powers which they thought covered such problems, while constraining those powers because they thought too much power in the hands of Congress would cause other problems.

Indeed, giving Congress the power to do pretty much anything it pleases will empower Congress to solve some problems which it might otherwise find beyond it, or have to leave to the states. (Who might solve the problem imperfectly, but is Congress perfect?)

But giving Congress the power to do pretty much anything it pleases will empower Congress to cause problems, as well. There should be an optima someplace here between the Articles of Confederation and Hobbs Leviathan. I won't pretend the Constitution hit it perfectly, but I will contend this:

If we ignore the limitations on federal power in the Constitution, we won't have a better constitution for doing so. We'll simply be pretending to have a better constitution, by violating the one we have.

And if you set up a mechanism to systematically violate the highest law of the land by pretending it means something other than what it says, that mechanism is not going to be employed only when the result is an improvement. It's going to be employed whenever politicians find the highest law of the land inconvenient.

# posted by

Brett : 7:53 AM

We're going to be talking past one another very soon. I would just say that I don't see that this is doing anything beyond "what the text actually says" or treating the Constitution as meaning "something other than what it says." The text speaks of regulating commerce among the several States, not a precise term and surely a contested one. The text also doesn't say anything about an activity/inactivity distinction.

So everyone is interpreting terms. And, at least in my view, an interpretation that allows Congress to operate effectively is better than one that prevents it from acting effectively.

# posted by

Howard Wasserman : 8:05 AM

Gerard's introductory premise:

"The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases."

fails to pass the constitutional smell test. I can imagine at oral argument Justice Scalia explaining the difference between broccoli and broccoli rabe and how to best to avoid their cooking odors from crossing state lines and why anybody would not want to buy either, as they are delicious when properly cooked, including with Italian sausage.

# posted by

Shag from Brookline : 8:23 AM

“The issue of whether Congress can make you take a vaccine (or eat broccoli) against your will strikes me as a Due Process question rather than a Commerce Clause issue, though that is debatable.”

But before it can be a Due Process question, it first has to be a Commerce Clause issue, because Congress has to get the power to order people to take their medicine (or eat their broccoli) from somewhere. And it seems a little illogical that we would construe the Commerce Clause broadly to allow the government to deal with the hypothetical plague, and then construe the Due Process Clause broadly to prevent it from doing so.

In the case of the health care mandate, the theory is that the mandate is necessary so that Congress’s regulation of the interstate health insurance market is economically viable. This strikes me as different than that the issue in the vaccine hypothetical, which isn’t trying to regulate the vaccine market, but attempting to achieve a health-related goal, ostensibly because it impacts interstate commerce. The latter seems more like a Lopez-type case. OTOH, so does the broccoli hypothetical so you might be better off arguing that both broccoli and vaccines are distinguishable from the health care mandate.

# posted by

mls : 10:10 AM

And it seems a little illogical that we would construe the Commerce Clause broadly to allow the government to deal with the hypothetical plague, and then construe the Due Process Clause broadly to prevent it from doing so.

I'm not sure why this would follow. We do this all the time. States, for example, have broad power to regulate crime, but they can't forcibly pump my stomach. The federal government has broad power to tax, but can't seize my property without due process.

The whole point of the BoR is to restrict the scope of the granted powers under Sec. 8, including the N&P clause. The analysis will always proceed in two steps.

# posted by

Mark Field : 10:59 AM

The SC already has a special docket page for the PPACA cases. Prepare for the broccoli. I like it on garlic bread myself.

I think the real concern of people is that they will be forced to eat the stuff. That's surely the concern (ask Michele Bachman or Jenny McCarthy) vaccines bring. If you don't have to use the stuff, it is more like a corporate benefit or something.

#1 States in fact have mixed rules on vaccines for dangerous diseases now, concerning many experts. Issues like D.C. etc. also arise. Regardless, the Constitution gives the feds power over this area, interstate commerce etc., even if they didn't need to address it.

#2 I guess but I'd be curious and curious how one or more of them couldn't be somehow applied to the PPACA. After all, federal funding of education as far back as the 1870s was justified to educate future jurors and voters. Why not health for the militia et. al.?

#3 sure, but what if it was something else, like brussel sprouts or something?

#4 right, few things are absolute, even free speech, but outlawing child porn is not in the same league as outlawing partisan magazines. Even strong pro-lifers make exceptions in rare cases. I don't think such literalness is totally fair.

# posted by

Joe : 1:47 PM

So, tjchiang, the idea is that babies can be conscripted into the military? Seems a questionable path to take given a more reasonable alternative is present.

The tax solution is also weak. Some people can't afford taxes. What do you do with them? The tax would also have to be pretty high to work, wouldn't it? The PPACA exempts many from the infamous requirement based on inability to pay. That would be risky here.

The idea that simon says "tax" is much of a political restraint -- even though that isn't how it has worked (the rule is that it has to act like one, not be literally called a "tax" -- Prof. Akhil Amar notes the Constitution itself has various words for "tax") -- is also unconvincing.

We have lots of "taxes," many quite dubious in nature. The people were aware that the result of the provision is that some w/o insurance would have to pay money to the government. A majority supported it anyways or wanted MORE government power (e.g., a public option run by it) anyways.

# posted by

Joe : 1:58 PM

The plague hypothetical should be a non-issue because Congress would have at least two effective ways of securing the needed vaccines for everyone even without the power to impose economic mandates. First, Congress could provide a refundable tax credit for the purchase of the needed vaccine. Second, Congress could purchase and distribute the vaccine to all Americans. Both of these options would of course be funded through increased taxes down the road. Thus, these options are also more progressive than economic mandates because most taxes are paid by the rich.

# posted by

CG : 9:15 PM

It seems to me the OP misses the point of the broccoli argument.

It's generally recognized (outside the Tea Party, anyway) that the schema of the Constitution and its delegated powers imply other powers. They also imply limits to Congress's power, however, and that isn't as generally acknowledged.

The commerce clause is actually the interstate and foreign commerce clause. It was written that way for a reason. Through implication and the changing nature of the nation's and world's economies, that's meant Congress has been able to regulate more and more commerce which seems more intrastate or local than international, but it's still the interstate and foreign commerce clause.

The Framers did not see fit to grant Congress a general police power, and the individual mandate and any hypothetical broccoli mandate are exercises of a general police power. The argument that a necessity has been created by Congress's choices in regulating an industry is not persuasive: if Congress can ratchet its powers by enacting regulation, then the whole point of a Constitution creating a divided schema of government is obviated. That some desired regulation is not possible doesn't change that.

# posted by

bacchys : 9:17 AM

In this case the argument isn't even that the desired regulation is impossible. The argument is that the desired regulation will create some serious negative consequences without the mandate.

So, if you wanted a vaccine analogy, suppose that the federal government mandated, through the commerce clause, that food traveling in interstate commerce had to be contaminated with E. Coli? Anticipating that this would cause widespread illness, they added a clause to the regulation requiring people to be vaccinated against E. Coli.

Basically it's an argument that the federal government can use it's delegated powers to cause problems, and is then entitled to otherwise undelegated powers to solve the problems it creates.

# posted by

Brett : 9:39 AM

Brett's characterization:

"Basically it's an argument that the federal government can use it's delegated powers to cause problems, and is then entitled to otherwise undelegated powers to solve the problems it creates."

seems a tad like Vietnam's "destroy the village to save the village" which has been discredited. The basic argument for the mandate will not destroy the Constitution - or broccoli if properly cooked.

# posted by

Shag from Brookline : 9:49 AM

It's not so much that your comments pass over my head, that they're completely orthogonal to anything comprehensible. Are you sure that you're not just a chat bot, or some such? It would explain a lot.

# posted by

Brett : 10:12 AM

I had thought I was serving as a balm for Brett's chronic case of "Wick-Burn." Perhaps "Conservative, Heal Thyself" may be more appropriate; and properly cooked broccoli, if actually eaten, may be helpful (George H. W. Bush, to the contrary).

# posted by

Shag from Brookline : 11:38 AM

The insurance requirement is tied to a national economic and commercial issue that covers 1/5 of our economy.

This is not a "general police power" (such as a general murder law) issue and is a federal matter specifically found in the Constitution. Furthermore, specific constitutional provisions limit its scope. For instance, forcing people to have specific health procedures like an abortion.

As to Brett, the hypo is a serious problem that the federal Constitution provides a specific means for the federal government to regulate. Brett might oppose it on policy, but he repeatedly says that isn't the ultimate issue. It is what the Constitution allows.

The original post speaks of things he is horrified at happening, which is a bit off, since bad things happen. But, this bad thing can be addressed by the federal enumerated powers.

# posted by

Joe : 2:06 PM

There was some news of the vaccine imperative during the 2001 anthrax letters aftermath. I forget the specifics; however, I think US government and private hospitals began researching ways to source the commonly available antidote from offshore pharmaceutical companies.

However, before traveling too far into the congruencies of the pestilential argument, I think the focus needs to be re-set to reviewing the insurance industry's economics and social safety concerns of the modern congress. Having halted negotiations far short of single payer, congress selected the next-best version, one entrenched industry interests' lobbyists advised was a workable compromise. Given that businesslike comportment by congress, I foresee only mild disinterest from the US Supreme Court in these cases, atavistic political characterizations notwithstanding. It all feels like the Republican version of a tax; nothing more. Absolutely innocuous in net impact.

And some research has shown antineoplastic compounds in broccoli, cooked crisp, steamed.

# posted by

JohnLopresti : 2:20 PM

Variation of 3.

The Commerce Clause does not empower Congress to compel the purchase of anything - period.

Congress can offer vaccination to the citizenry and, if we are facing a truly dangerous pandemic, then people as rational beings will get the vaccinations of their own volition. Fools who decline to do so are also unlikely to follow government orders to get vaccinated.

In any case, being compelled to purchase Obamacare is hardly analogous and shows the desperation of the proponents of the individual mandate.

# posted by

Bart DePalma : 4:29 PM

bacchys: if Congress can ratchet its powers by enacting regulation, then the whole point of a Constitution creating a divided schema of government is obviated.

Brett: Basically it's an argument that the federal government can use it's delegated powers to cause problems, and is then entitled to otherwise undelegated powers to solve the problems it creates.

In Comstock, Congress created the problem of no state being willing to commit a mentally ill, sexually dangerous former federal prisoner because the prison sentence broke any contact between the ex-prisoner and the state. Yet, the Court ruled Congress had the power to fix the problem it created by federally committing the person (even though such a stand-alone regulation is not within an enumerated power).

# posted by

just_looking : 6:19 PM

I would distinguish Comstock by noting the prisoners were in Federal custody up until the moment that prison officials could no longer incarcerate them for their crimes and the government sought to have them civilly committed.

I hope we're not to the point that we consider all citizens to be in Federal custody on the level of inmates.

Moreover, the Court considered it a safety valve (albeit a silly one) that the states were free to claim their authority over such a soon-to-be-released inmate. Comstock is less a serious decision than one conjured to deal with an icky situation.

# posted by

bacchys : 8:14 PM

I don't see how the fact that the prisoners were in federal custody prior to the end of their criminal confinement has any relevance to the principle I believe Comstock established: Congress can correct problems it creates.

As to your argument that Comstock should be treated as being limited to its facts of an "icky situation", only SCOTUS can do that.

# posted by

just_looking : 9:10 PM

How well I remember dining at Boston's Locke-Ober Restaurant with a side (usually to a steak) of broccoli with hollandaise sauce, the broccoli a bright green and with a crunch. It was very good for the constitution, preceded of course by a Bombay, or two, on the rocks wedged with lime. The bill of fare was the equivalent of the bill of rights. That was in my salad days of practicing law when my culinary creed was "Locke Uber Alles!"

# posted by

Shag from Brookline : 7:50 AM

Federal custody (often for breaking laws a more indirect matter of federal power than this one, only a handful of crimes directly enumerated) is the hook in Comstock.

Regulation of interstate commerce, including arising from matters the feds in some way caused (e.g., if the vaccines are a result of its own direct trade with a country), in part by the tax power, is another.

Those who don't like Comstock (which Roberts joined and gave to Breyer, who has a broad view of federal power, to write -- telling point) might wish to restrict it to its facts, but the SC has not yet supported such a hint that the precedent is distasteful or so close to the line that such a choice is required.

Two things about Bart. "Fools" is a pretty harsh thing to say about people who might honestly (and perhaps rightly in certain cases) think a vaccine is dangerous or not wish to use it for religious reasons. Second, we might decide to say that the CC doesn't give any power to require purchase (a step beyond the tax incentive applied to the people who actually would have to pay, again quite a few wouldn't be) but the actual words doesn't actually have such restrictive effect.

I say this not to Bart alone, but to others who share his sentiments. Happy Halloween.

# posted by

Joe : 9:29 AM

Joe:

Two things about Bart. "Fools" is a pretty harsh thing to say about people who might honestly (and perhaps rightly in certain cases) think a vaccine is dangerous or not wish to use it for religious reasons.

OK, in the less harsh spirit of Monty Python, they are silly people.

Second, we might decide to say that the CC doesn't give any power to require purchase (a step beyond the tax incentive applied to the people who actually would have to pay, again quite a few wouldn't be) but the actual words doesn't actually have such restrictive effect.

The CC states in pertinent part that Congress shall have power "To regulate Commerce...among the several States..."

To regulate is to adjust or direct through rule or restriction. In other words, the CC grants the Congress the negative power to adjust or direct existing commerce between the states. If words still have meaning, the provision does not grant Congress the affirmative power to compel Americans to engage in commerce.

# posted by

Bart DePalma : 11:23 AM

Gerard incorrectly dismisses the first response by relating to Congress never requiring broccoli purchases. The core issue relates to the powers granted to Congress and the fact that Congress does not have a general police power, whereas States do. Unless otherwise limited by the relevant State constitution or the Federal constitution (i.e. incorporated rights), States can require their citizens to do pretty much anything. Hence a mandate to purchase health insurance in Mass. is not an issue, but is problematic at the Federal level.

Indeed, States could require their citizens to purchase (and eat perhaps) broccoli. They have the police power, the Federal government does not. Therefore, it is entirely correct (and a consistent position) that States could order mandatory vaccinations, but the Congress cannot order someone to purchase broccoli.

# posted by

Adrian : 9:54 PM

Words do still have meaning. If you only use one of their definitions, however, you might be inclined towards a more narrow reading than is warranted. What if the regulation of commerce followed definition 2 rather than definition 1?

REG'ULATE, v.t.

1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.
3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.

# posted by

PMS_CC : 10:11 PM

Adrian,

The problem is that some critics of the individual mandate frame the question as a liberty interest. In other ways, they make no distinction between state and federal power in this area. So long as everyone is clear that you can be compelled to buy a private product by a state, then we're all on the same page in assessing the question of whether Congress can do so.

# posted by

Gerard N. Magliocca : 10:23 PM

PMS_CC:

Words do still have meaning. If you only use one of their definitions, however, you might be inclined towards a more narrow reading than is warranted. What if the regulation of commerce followed definition 2 rather than definition 1?

REG'ULATE, v.t.

1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.

There is no fundamental difference between the two entries. In both cases, regulation is a negative function used to limit a preexisting activity to desired parameters. In no permutation is regulation used to compel activity where there is none.

# posted by

Bart DePalma : 10:51 PM

In both cases, regulation is a negative function used to limit a preexisting activity to desired parameters. In no permutation is regulation used to compel activity where there is none.

Nonsense. If I intend to put the world in good order, nothing in the second definition prevents me from creating new schema and compeling activity of any sort I can imagine. The only thing that pre-exists here is the category, but even that pre-existence is unnecessary, save in one's imagination perhaps.

# posted by

PMS_CC : 12:03 AM

Let's assume that the Justices get caught up in this broccoli imbroglio, resulting in culinary constitutionalism with varying recipes (e.g., opinions) for ACA. Would that be the end of the story?

Take a peek at Joel Aiicea's National Review Online post of October 25, 2011: "Questioning the Supreme Court's Supremacy-Should the political branches have a say in interpreting the Constitution?" available at:

http://www.nationalreview.com/articles/print/281166

The 2012 Republican candidates are chiming in on where in the Constitution is judicial supremacy set forth? I encourage all to read the entire post but can't resist this:

"Mr. Gingrich suggests that originalism be the constitutional theory adopted by the political branches, .... Comments from other Republican presidential candidates reflect a similar respect for the original meaning of the Constitution, sometimes to the point where it seems we are witnessing the apotheosis of the founders."

Where is it set forth in the Constitution that its interpretation is based upon originalism (du jour)? And what in God's name did the founders think about broccoli?

While SCOTUS may rule on the ACA mandate 5-4, imagine how the Senate and House may challenge judicial supremacy?

# posted by

Shag from Brookline : 9:21 AM

What follows is not completely off-topic, although very close to being so. My apologies.

I have seen too many interviews of Walter Isaacson on TV promoting his bio of "Steve Jobs." I don't plan to buy the book as I may already know too much about Steve Jobs, especially with the many chastisements by my wife (God rest her soul, in an agnostic sense) for not buying Apple stock years ago when she strongly suggested I should. But I did learn quite a bit about Steve Jobs, the individual as a family man, with his sister's, Mona Simpson, "A Sister's Eulogy for Steve Jobs" on October 16, 2011 at the memorial service at the Memorial Church of Stanford University. Being long in the tooth at 81, this was a most stirring eulogy, describing Jobs as a family man. (It is available at the NYTimes.) Family was most important to Steve Jobs:

"A middle-class boy from Los Altos, he fell in love with a middle-class girl from New Jersey. It was important to both of them to raise Lisa, Reed, Erin and Eve as grounded, normal children. Their house didn't intimidate with art or polish; in fact, for many of the first years I knew Steve and [Laurene] together, dinner was served on the grass, and sometimes consisted of just one vegetable. Lots of that one vegetable. But one. Broccoli. In season. Simply prepared. With just the right, recently snipped, herb."

When it comes to the ACA and broccoli, SCOTUS should keep it simple, and not mix them up. But broccoli and Apple apparently do go together.

I thank Mona Simpson for her remembrances of a brother she did not for years know she had. Now long in the tooth, family is most important for me too.

# posted by

Shag from Brookline : 10:59 AM

PMS: REG'ULATE, v.t.

1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.

BD: In both cases, regulation is a negative function used to limit a preexisting activity to desired parameters. In no permutation is regulation used to compel activity where there is none.

PMS: Nonsense. If I intend to put the world in good order, nothing in the second definition prevents me from creating new schema and compeling activity of any sort I can imagine.

The second definition concerns regulation imposing a desired order on preexisting government finances. Regulation is not defined as the power to compel the people to create and finance a government.

Regulation is synonymous with discipline.

# posted by

Bart DePalma : 11:01 AM

Shag:

Is this the first time that you have every cited to National Review? ;^)

In any case, to the extent Gingrich is proposing that he as President would not sign any legislation that he believes exceeds the powers of the Congress, even if the Court interprets Congress' powers more expansively, I see nothing legally questionable about that proposition.

If on the other hand Gingrich is proposing to exercise executive powers in excess of what the Court allows under Article II, then we have a classic constitutional crisis.

# posted by

Bart DePalma : 11:09 AM

I don't know if I have ever before cited to National Review Online. But the fact that I did cite to it in an earlier comment does not mean I support or am in agreement with it. Over the years I have questioned whether there is such a thing as judicial supremacy over the other branches specifically provided for in the Constitution. (I have also pointed out - as have so many others - the failure of the Constitution to specify judicial review, although I can understand the need for such.) With my cite, I also focused upon originalism (whichever kind is currently in vogue) as not being specified in the Constitution for purposes of its interpretation/construction.

But the primary purpose for my cite is to focus on the Republican presidential candidates woodpile and its concerns with the judiciary. I don't think they are complaining about Bush v. Gore or any of the 5-4 decisions of the Roberts Court, like Heller, McDonald, Citizens United, etc. They should keep in mind what's sauce for the goose is sauce for the gander. So voters concerned with the Roberts Court may come to decide that Obama may best protect the judiciary, including on choice (keeping in mind the proposed "person" definition being sought in Mississippi).

So consider my effort as that of an angel quoting the devil.

# posted by

Shag from Brookline : 2:00 PM

Given the age of the four conservatives and the one occasional conservative on the Court, the GOP should be the ones concerned about Obama appointing further Justices. However, I doubt it will be a passing thought for most voters. Its the economy, stupid, followed by conservative anger about the expansion of government.

# posted by

Bart DePalma : 3:21 PM

Yes, it is the Bush/Cheney Great Recession of 2008 resulting from its 8 inept years of guns, butter and tax cuts economy, stupid, which the GOP, enabled by the conservative Tea Party, has taken steps to worsen by thwarting Obama's efforts to create jobs, so that the same GOP-ers who enabled Bush/Cheney, including our yodeler, can continue the destruction of the Bush/Cheney 8 years. Now we have the anger of the 99% to counteract the Tea Party.

# posted by

Shag from Brookline : 4:46 PM

The second definition concerns regulation imposing a desired order on preexisting government finances. Regulation is not defined as the power to compel the people to create and finance a government.

Again, nothing in the definition of "regulate" prevents compulsion. If words have any meaning, as you say, you can't just ignore an open definition in favor of a restricted one.

# posted by

PMS_CC : 11:52 AM

BD: The second definition concerns regulation imposing a desired order on preexisting government finances. Regulation is not defined as the power to compel the people to create and finance a government.

PMS: Again, nothing in the definition of "regulate" prevents compulsion. If words have any meaning, as you say, you can't just ignore an open definition in favor of a restricted one.

You could make the same argument that the President's veto power includes the power to enact legislation because the dictionary definition of veto does not expressly rule out this option.

This is not a persuasive argument.

# posted by

Bart DePalma : 12:09 PM

"OK, in the less harsh spirit of Monty Python, they are silly people."

So, if the government says so, it is "silly" to distrust them on a vaccine ever. The distrust of government power is selective, as usual, no matter the source.

And, certain religions are "silly." The second is true surely, but it's a bit hard for me personally to draw lines and call people that.

"Second, we might decide to say that the CC doesn't give any power to require purchase"

So, interstate truckers can't be required to purchase certain things under the CC. Don't know why. That isn't the usual argument. It is that "activity" is required first or something.

"To regulate is to adjust or direct through rule or restriction."

PMS settles the definition issue but either way, the national insurance market is being adjusted and directed in part by the PPACA requirement. At the very least, it can be "necessary and proper" to do so by the provision at issue.

You can, if you wish, slice things thin, but the actual wording doesn't warrant that by itself.

"In other words, the CC grants the Congress the negative power"

I don't see any "negative power" alone even by your debatable definition. Positive regulation is possible under it.

"to adjust or direct existing commerce between the states"

"To adjust" is pretty broad and can mean any number of things, including adjusting it by the means at issue. The people actually being taxed also are, to help things out, taking part in interstate commerce in numerous ways, health insurance a reasonable aspect of said involvement. Any exceptions would be minor, if any, resulting in narrow "as applied" challenges.

"If words still have meaning"

The words "have meaning" and restrictive effect, as many here and elsewhere has shown, if the PPACA provision is upheld.

Happy All Saints Day.

# posted by

Joe : 5:49 PM

I'm sorry, Happy All Souls Day.

# posted by

Joe : 5:57 PM

In an earlier comment I had made a reference to a recent article on "judicial supremacy." Over at the Legal History Blog, a post informs us of the Columbia Law Review article of Barry Friedman and Erin F. Delaney "Becoming Supreme: The Federal Foundation Of Judicial Supremacy" and provides an SSRN link. I hope to read it in the next couple of days. Caution: the article runs 57 pages single spaced. I trust broccoli is good for the eyesight.

# posted by

Shag from Brookline : 5:21 PM

The DC Appeals Court upheld it via an opinion by a Reagan conservative (no shock, since Charles Fried thinks it is obviously constitutional) while conservative fav Brett Kavanaugh dissented on jurisdictional grounds -- the Tax Injunction Act. That is TAX Injunction Act. I think that is a decent argument. Rule on the case when the tax (I say tax) penalty actually is in place.

# posted by

Joe : 3:20 PM

I recently came across National Review Online's October 12, 2007 post on Whittaker Chambers' "Big Sister Is Watching You" republication from the Dec. 28, 1957, issue of the National Review, of his lengthy review of Ayn Rand's "Atlas Shrugged." I had over the years read references to this review but only recently decided to download it:

http://www,nationalreview.com/articles/print/222482

While I have not read "Atlas Shrugged," I have read much about those who are Randians. This review is helpful in understanding her present - and past -political acolytes.

I plan to reread the review while munching on pumpkin seeds.

# posted by

Shag from Brookline : 7:51 AM

The whole discussion, including the hypo, misread the importance of the idea of national emergency. Congress has in fact responded to this contingency. If there was a "dangerous epidemic" it would be a threat to national security, and it is *those* rules that should dominate the discussion. IOW, you raised a national security hypo, not a federalism hypo. In such a threat, the military could be enlisted to enforce ad hoc quarantine, isolation, forced vaccinations and other rules from the federal level, even though those things are otherwise within the purview of the states. Giving the idea of rewriting the hypo to make it intelligible for your ends a few moments and i think in every case in which there is a federal emergency, then it is a national security problem and the grant of power to the executive that comes with it. In such an emergency Congress has demonstrated it is servile to national security rhetoric. Without an emergency the practice of medicine, which is the area under which vaccines fall, is left to doctors, largely; and state powers to regulate the professions. Congress could pass laws funding private sector production of the vaccines, and educational programs by CDC, etc. Once you remove the emergency it becomes much clearer that Congress is prohibited from ordering the purchase of anything, although it can clearly control the choices that consumers have.

# posted by

john lunstroth : 10:14 AM

"Congress is prohibited from ordering the purchase of anything"

Where is this prohibition in the Constitution? Industries have to purchase various things under federal regulations. In 1792, members of the militia were "ordered" to "purchase" things. If I had to buy a notepad for jury service, to take notes as required by federal rules, is this unconstitutional?

It is not apparent in the various powers enumerated why purchase is not a means that might be required. It isn't from text, experience or anything I can see.

# posted by

Joe : 5:15 PM

I've just posted the following article with my thoughts on why striking the individual mandate could cripple federal powers to respond effectively to public health and natural disasters:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1959612

Mark Hall

# posted by

Mark Hall : 6:39 PM

This article is very interesting and meaningful. Thank you very much. Thank you very much!
chaga mushroom Sprachschule Wien

# posted by

qwadro_fx : 10:09 AM