[tomder55]

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 .

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.

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.

[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.

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

[tomder55]

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 .

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

[tomder55]

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.

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 .

[excon]

Wrong

Hello again, tom:

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

excon

[tomder55]

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.

[talaniman]

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!

[tomder55]

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.

[talaniman]

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

Equal Protection Clause - Wikipedia, the free encyclopedia

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

[excon]

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

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

[tomder55]

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.

[tomder55]

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

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.

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

[excon]

Are you saying it was decided correctly ?

Hello again, tom:

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

excon

[talaniman]

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

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.

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??

[tomder55]

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 .

[paraclete]

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

[TUT317]

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 .

Hi Tom,

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

Tut

[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.

[tomder55]

Hi Tom,

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

Tut

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:

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

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

I concure .

[tomder55]

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.

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 .