Over 3 days the Supreme Court will hear 6 hours of oral argument about the Constitutionality of Obama Care (aka the Patient Protection and Affordable Care Act).Patient Protection and Affordable Care Act

It unfortunately will not be televised ;but transcripts and audio tape will be made available .

Here are some of the issues that the Justices may consider,
- Obamacare destroys the foundation of American contract law .
James Wilson was a framer and signer of both the Declaration of Independence and the Constitution.
About contract law he wrote that American contracts were about liberty... that if one could argue that they were compelled to enter into contract ,the contract was not binding .A contract has to be between mutually willing participants .

The government compelling someone to enter into such a contract with a private company violates that principle .

Defenders will argue that the court has allowed an ever expansive use of government regulations under the guise of regulating interstate commerce. This is true ,however never before has the court used the commerce clause to regulate and control inactivity... the non-act of not buying health insurance.

The National Federation of Independent Business wrote in its brief to the court that , “uninsured status neither interferes with commerce or its regulation nor constitutes economic activity. Instead, the uninsured’s defining characteristic is their non-participation in commerce.”
http://www.americanbar.org/content/d...thcheckdam.pdf

This principle in essesnce gives Congress unlimited power over every aspect of American life . This is what the Administration will argue anyway.
The 11th Circuit court's ruling on Obamacare states as much .

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The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.

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http://www.uscourts.gov/uscourts/cou.../201111021.pdf
Best guess is that if the Solicitor General doesn't come up with something that puts a limit on the mandate then the Administration doesn't stand a chance in court. I don't think he can.

I would argue that already the court has distorted the origninal meaning of the Commerce Clause in previous rulings like the depression era Wickard case ( a farmer was barred from growing wheat to feed his pigs)because the clause was never intended to regulate commerce inside a state . But I don't think it's probable that almost a century of SCOTUS bad calls will be reversed .

But this is a barrier that has never been crossed . Think of the possibilities .The Obots could mandate the purchase of the Chevy Volt. A conservative Congress could mandate the purchase of firearms .

If this is allowed by SCOTUS (probably under some dodge about Congress having unlimited taxing authority ;or calling the whole issue a "political question" ) then there will be nothing that can't be done ;all the limits and restraints on government cease to exist... the Constitution rendered virtually null and void.

We may as well scrap the document and adopt the Aussie system that has been so well explained to us by our Aussie participants where the only restraint on the legislature and executive is the threat of an election.

Hello tom:

So, those are the choices, huh? Obamacare or liberty? Frankly, giving a sick person a chance at life, is spreading a LOT of liberty around, but that's just me.

Looks like there's ONE guy, Kennedy, who's going to decide it too. It seems to that IF the commerce department can tell you what you CAN'T buy, and it does, then it certainly can tell you what you MUST buy. After all, the government tells you that you MUST buy immunizations.

excon

Wrong

Immunization policies are set individually by every state, with the HHS regulating vaccine production, purchasing vaccines and making them available to states.

The federal government makes recommendations for states to consider in setting immunization policies, but does not mandate them .

Ps your link says it in the 1st paragraph .

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One of the strategies used in the US to control vaccinepreventable
Diseases (VPDs) has been state laws mandating
Vaccination for school entrance. There are no federal laws
Mandating vaccinations

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It seems to that IF the commerce department can tell you what you CAN'T buy, and it does, then it certainly can tell you what you MUST buy.

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I've already made comment on the expansive interpretation of the commerce clause in it's regulation of what can be purchased inside the individual states . I don't think that can be reversed . What Obamacare seeks to do is unchartered territory in the scope and power of the Federal Government .

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Originally Posted by tomder55

Wrong

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Hello again, tom:

Well, because you're so mean about it, the Supreme Court will rule Obamacare Constitutional.. So there.

excon

Lol probably . I don't trust some of the conservatives on the court. Besides Kennedy ,Roberts could side in a majority confirming Obamacare... and so might Scalia.

The government does mandate a procedure, and regulate the standards of what states can do regarding what to use to immunize the population with, even if you don't want it. Try sending your kid to school without it.

As to health care, a standard for one encompassing policy makes proper sense. That insures the same protections for all, and not just the ones with money, who can afford liberty. Life is the most essential ingredient for liberty that there is. That's in the Constitution to. To deny life, is to deny liberty, and renders the Constitution a lie!

Is expansive government control also in the Constitution ? No . You may not like it ;but the document is a document that limits government power . You may think that a standard for one encompassing policy makes proper sense . You just can't find that clause that makes it so.

Yes it implied in the constitution as equal protection for all its citizens.

Equal Protection Clause - Wikipedia, the free encyclopedia

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The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process

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Originally Posted by tomder55

You just can't find that clause that makes it so.

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Hello again, tom:

Yeah, we can. It's that pesky old Commerce Clause again. In Gonzales v. Raich, SCOTUS ruled that under the Commerce Clause, congress may criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes.

Put THAT in your pipe and smoke it...

excon

The opinion by Scalia in Gonzales v. Raich is the reason I don't trust him to overturn Obamacare.(he said it was valid under 'Necessary and Proper ' clause) The case was not decided correctly because the State had a medical marijuana law on the books ,and Raich was not going to sell his plants ,but use them himself.

Are you saying it was decided correctly ? Because that would be the only way you could say that Obamacare is constitutional under the precedent of the Gonzales v. Raich decision.

Here is the amicus presented by the Social Security Institute to SCOTUS against Obamacare

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The Commerce Clause grants Congress the power to regulate interstate commerce; it does not grant Congress the power to compel individuals to enter into interstate commerce. The Congress itself has recognized this limitation for 220 years; never before has it enacted a law compelling individuals to purchase particular products and services. Anything like that (such as mandatory automobile insurance) always before has been recognized as a prerogative of the police power reserved to the states.

No precedent, judicial or legislative, exists upholding anything like the power of Congress to impose an individual mandate compelling all citizens in America to purchase particular products and services.

Upholding the individual mandate here would leave no principled limit on the federal government's powers. As a result, it would demolish two of the most fundamental doctrines of the Constitution: 1) The federal government is limited to delegated, enumerated powers; and 2) All powers not delegated to it are reserved to the states respectively or the people. Upholding the individual mandate in this case would require tearing down these two fundamental pillars of the entire constitutional architecture, like blind Samson pushing over the pillars of the temple, causing it to collapse on the heads of everyone inside.

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Social Security Institute | ObamaCare Or The Constitution: One Must Fall

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Originally Posted by tomder55

Are you saying it was decided correctly ?

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Hello again, tom:

No, but it's a precedent they can use.

excon

Nice argument, for the by gone pre civil war past, but fails to recognize the very modern real world of a weak central government subverted by states influences, that lead to the civil war.

Maybe that's what we have here, the states rights to discard the federal rules, which is again patently unconstitutional. Like I said before, every American has equal protection under the law, and the states cannot undermine that basic American RIGHT, by laws, or policies. I think we also lose site of the governments duty to mitigate its costs of what has grown to be an important and basic obligation to the health of its citizens, and consumer protections against those greedy b@stard private insurance companies.

Medical Loss Ratio: Getting Your Money's Worth on Health Insurance | HealthCare.gov

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Today, many insurance companies spend a substantial portion of consumers' premium dollars on administrative costs and profits, including executive salaries, overhead, and marketing. Thanks to the Affordable Care Act, consumers will receive more value for their premium dollar because insurance companies will be required to spend 80 to 85 percent of premium dollars on medical care and health care quality improvement, rather than on administrative costs, starting in 2011. If they don't, the insurance companies will be required to provide a rebate to their customers starting in 2012.

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The whole purpose of the mandate is to bend the cost curb DOWN, and not continue on the rising trend of premiums going up driven by profits over actual services. The funny part to me is that the right wants interstate competition, and that's the whole point of the mandate in making all the states toe one standard.

And lets not forget that the mandates affect only 33 million of UNINSURED consumers, who have NO heatlth insurance. So while the right hollers liberty, they are against the very tools that cost them the most money, the uninsured, particularly the uninsured who can afford health insurance. Hospitals and care providers have always passed those costs onto the consumers that do have and pay for insurance. The mandates mean you no longer bear the cost of someone else getting free care that WE pay for. Or a major part of it.

I ask you Tom, as someone that pays for those that are not as responsible as you are, should the uninsured pay something toward their own costs?

That's why the Supreme Court will uphold the federal mandate on health care consumers, because it's a fair way to keep the irresponsible out of the pocket of the responsible, and makes them pay something for their own care.

No way do I think that you want to pay for them, when you are paying for yourself, right??

I'm not here to argue the rationale or justification for the unconstitutional mandate. That's been done here . I gave the case why I think the mandate violates the Constitution.
"Fairness" is not the purpose of the Constitution. If what you say is true then sure toss the Constitution and adopt a French system of Equality and Fraternity .I'd add liberty ,but that's what's lost.
I have read many of the briefs or good sections of them . One thing I know is that the Adm will not say it's constitutional over 14th amendment or equal access grounds . They will make a case on the Commerce clause ,possibly the Necessary and Proper clause ;or they'll pivot like Roosevelt and argue that it's part of a broad taxing authority .

But in reality Tom it is a tax, because it is being imposed in a manadtory manner, that makes it a poll tax, but with specifics about the way it can be spent. Too much pussyfooting around the edges here

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Originally Posted by tomder55

I would argue that already the court has distorted the origninal meaning of the Commerce Clause in previous rulings like the depression era Wickard case ( a farmer was barred from growing wheat to feed his pigs)because the clause was never intended to regulate commerce inside a state . But I don't think it's probable that almost a century of SCOTUS bad calls will be reversed .

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Hi Tom,

You know the original meaning? As opposed to those who, for 100 years didn't know the meaning?

Tut

You have made that argument before Tom, and even you have to admit that the original intent of the Constitution has undergone changes when circumstances have changed. I mean they have added 37 states since the original thirteen colonies.

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Originally Posted by TUT317

Hi Tom,

You know the original meaning? As opposed to those who, for 100 years didn't know the meaning?

Tut

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Yes I do ;all you have to do is read the Federalist papers ,especially the ones authored by Alexander Hamilton 12,17,21,35 (who was by far the biggest proponent of a strong central government of the ratifiers ) .
In all there are 63 times that the subject of the commerce clause is mentioned. In NONE of them was the clause meant to mean anything EXCEPT interstate trade between the states , and trade with foreign nations .

The only reason they added it at all was because the original Articles of Confederacy had collapsed because of tarriff issues between the states. They wanted to eliminate the trade barriers between the states . There was absolutely no intent in having the Federal government imposing absolute control of trade.

Further ,you do recall when the British tried to impose taxes on non-activity (the purchase of British tea) don't you ?

The Judge who declared Obamacare unconstitutional in his ruling wrote this in his opionion:

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It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power

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http://www.politico.com/static/PPM153_vin.html (page 42)

I concure .

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Originally Posted by talaniman

You have made that argument before Tom, and even you have to admit that the original intent of the Constitution has undergone changes when circumstances have changed. I mean they have added 37 states since the original thirteen colonies.

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There is a way to amend the Constitution that is supposed to deal with these "evolutions" . It has been effectively used in the past . If you guys want the central government to have no limits then just amend the Constitution... You can call it the Leviathan Nanny-state amendent .

Government needs limits, but given the state of affairs in the world, not just in this country, I think we the people have to have a strong, effective, and efficient central government.

Or else no amendment will change the united states of the Koch brothers, or the united states of Prudential, or the united states of BP, or the united staes of shell oil, or the united states of the bank of america.

We already have the united states of the national rifle association, I mean come on big money owns it all as it is. Would you rather have a nanny state, or slavery, and subjugation by the rich business interests?

I want the rules we live by to be constitutional. It's your side that think it is a living breathing document where the things written are different.

But the genious of the document was that the Founders foresaw the need to change the document to reflect changing times. They even envisioned a day when the People would find the Constitution obsolete .(like that nut job justice Ginsberg who goes around the world telling countries not to use ours as a model) . The Founders saw that too and made provisions for a Constitutional convention to make wholesale changes.
The problem is that these provisions are not used .

There are also provisions for legal remedies, if you have standing to bring it and those provisions ARE used. You don't need a new amendment to define the language, intent, which is highly subjective, or standing, which is not that clear cut either.

My only regret, NO CAMERAS!

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Originally Posted by excon

Hello tom:

So, those are the choices, huh? Obamacare or liberty?? Frankly, giving a sick person a chance at life, is spreading a LOT of liberty around, but that's just me.

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The Nancy Pelosi argument. You know you've really been stretching your arguments pretty thin lately.

It all boils down to which side of the bed Kennedy wakes up on, left or right.

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Originally Posted by speechlesstx

You know you've really been stretching your arguments pretty thin lately.

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Hello again, Steve:

My arguments never varied.. From the git, I NEVER understood WHY you guys were against making sure everybody got decent health care... Wondering who would PAY for it is a legitimate concern, but simply to DENY your fellow citizen access to health care is despicable.

Nothing has changed. It's STILL despicable.

Oh, I know you guys are STILL living with the fantasy that your cancer will be treated at your local emergency room. I don't know WHY you believe that crap...

excon

My argument has never wavered either, no one is denied access to health care. But Obamacare is damn sure making mine more expensive mine AND destroying the first amendment in the process. But again, what's a little thing like the first amendment?

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Originally Posted by speechlesstx

no one is denied access to health care.

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If they can afford it, many can't.

That's a convenient myth, NK.

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Originally Posted by speechlesstx

That's a convenient myth, NK.

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None are so blind as those who will no see:

Almost 1 in 5 Americans Going Without Health Care

Barely Hanging On: Middle-Class and Uninsured

Insured but bankrupt: The hidden side of health care costs

The subject even has it's own Wikipedia entry LOL: Medical debt - Wikipedia, the free encyclopedia

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Originally Posted by paraclete

But in reality Tom it is a tax, becuase it is being imposed in a manadtory manner, that makes it a poll tax, but with specifics about the way it can be spent. Too much pussyfooting around the edges here

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Today they heard argument for 2 hours ,and it appears ,because they intend to proceed with the case ,that they recognize that the penalty for not purchasing insurance is indeed a penalty ,and not a tax.
This will create a problem for the Adm because they have said that the power to impose a fine is under the Congressional taxing authority of the Constitution.

Had they decided it was a tax ,then by law ,there would be no standing to take on Obamacare in court since no 'tax' aka penalty will be imposed.. yet .(according to the Anti-Injunction Act no one can challenge a tax until a tax has been imposed... if the Judges wanted to punt on the issue ,they could've said there was no standing for a challenge at this time).

In speaking of the mandate, Solicitor General Donald Verrilli frequently used tax and penalty interchangeably ,and was challeged by a few of the Justices ;especially Alito. Kagan tried to lead Verrilli through the minefield of his gaffs ;but he didn't get the hint.
Justice Stephen Breyer said "Congress has nowhere used the word 'tax.' What is says is 'penalty.' Moreover, this is not in the Internal Revenue Code but for purposes of collection."
"[The penalty is] "not attached to a tax. It is attached to a health care requirement." That it's being "collected in the same manner as a tax doesn't automatically make it a tax."

Both the administration and those who filed the suits both want SCOTUS to hear the case so I'm not quite sure why it took so long on this issues except perhaps that both sides were preparing the battlefield for tomorrow's hearing.

After listening to the audio and reading the transcripts ,I'm a little more optimistic about the mandate to purchase insurance being declared unconstitutional .
Tomorrow they wrap it up . The big issue will be severability . If they declare the mandate unconstitutional will the rest of Obamacare go down .

I addressed that issue here :
https://www.askmehelpdesk.com/curren...al-534343.html

Hello again, tom:

It doesn't sound good for the law. I think a defeat will hurt Obamas chances for reelection... The conservatives KNOW that... Don't tell me they don't make POLITICAL calculations. Balls and strikes - CRAP!

The good news, is that the public option looks like it'll be the one to replace Obamacare anyway. It should have been the way from the git.

excon

I don't think they will strike it down, even with the weak showing by the government. The reason is that this is no different than when social security, and the new deal where implemented.

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Originally Posted by talaniman

The reason is that this is no different than when social security, and the new deal where implemented.

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Hello tal:

I think it's different. Here's why: (1) There WAS a time when the court DID call balls and strikes. Now, they're as partisan as ever. (2) We have a BLACK president who is LOATHED by the right. (3) When I said partisan, I meant BEYOND the pale. This group of right wingers makes BORK look liberal.

excon

I would have to see how the public option is constructed ;but generally agree that IF the country makes the decision to take over a huge sector of the economy ,that a public option would most likey be a constitutional alternative .

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Originally Posted by tomder55

IF the country makes the decision to take over a huge sector of the economy ,that a public option would most likey be a constitutional alternative .

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Hello again, tom:

If the mandate fails, then it's only the funding that needs a fix. Surly, the parts of the law that people LIKE and KNOW about will remain, and that will NEED to be paid for. Those are that insurance companies can't deny coverage because of pre-existing conditions, keeping children on their parents policy's till they're 26, and I seriously doubt whether the country will abide dropping 30 million people from health insurance...

So, if we can find a way to PAY for that stuff, I'm all ears. Oh, I have a way.

excon

Sour grapes aside implicit is Excon's reply ; the reason we have social security is because Roosevelt played hardball with the court. The threat of packing the court was always in the back of their mind. Balls and Strikes ? They cowered under the threat . He was not successful in the court packing plan. But the net result was the same . He achieved a significant shift in policy direction in SCOTUS and a win in 'Stewart Machine Co. v. Davis' .

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If the mandate fails, then it's only the funding that needs a fix.

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Well there are other challenges ,but that is the big one.. I'll see how arguments go today on the severability issue,and challenges on 10th amendment grounds.

We all know what happens if the whole bill goes down, Dramatically higher costs for those that have health care insurance, for which there will be less of. I doubt they want THAT to happen despite the ones that do!

If it goes down, for sure, guaranteed, social security, and medicare are next. What you think the right will stop at health care?? I don't.

Our laws have to be constitutional.. bottom line. If the mandate is constitutional then there are no limits to what the government can do .There were ways to do all this without the power grabs ,deceptions and sleigh of hand that the Dems pulled .