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Tuesday, November 15. 2011
Many attorneys and many law profs generally assume that the Commerce Clause is dead and, indeed, was laid to rest many years ago. Whenever I bring up my sentimental and quaint views of the Constitutional limits on federal power, colleagues often see me as a naive artifact from a former age. Which, perhaps, I am.
Lawyers rarely deal with Constitutional issues, just with ordinary civil and criminal laws and rules and regulations (of which there exist more than anyone could possibly know or even be dimly aware of, thus providing people like me with tidy incomes).
Fact is, the late, lamented death of the original meaning of the commerce clause (designed mainly, as I understand it, to eliminate then-existing obstacles to inter-state commerce) opened the door to the Feds regulating and controlling everything and anything they want to. One might wish that the FFs might have been a little more explicit in their definitions and intentions, but they could not have anticipated every single language loophole the feds might have decided to exploit in their reaches for more and more power, control, and money - even though that was their greatest fear and the reason they bothered to write the thing in the first place. King George lll would envy the power of our current federal government. Loopholes are always for the Common Good, naturally. Antique that I am, for me freedom is the ultimate Common Good. To me, the meaning of "Freedom" is freedom from the power of the state far more than it is freedom from external threats to security, or German threats to Europe, or Islamist insanity.
I predict that much or all of ObamaCare is upheld by the Supremes, in deference to Congress. I deeply hope that I am wrong because the feds have shown little ability to run much of anything effectively or flexibly except the armed forces, much less 17% of the American economy. We'll all end up with USPS medical care, and it will be frozen in law so it can no longer adapt or innovate, or even try to help me and you outside of government guidelines.
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I'm not so sure.
The Commerce Clause may be 'dead', but portions are still adhered to at times.
I'm not a lawyer (though I work with them daily), but I mentioned the Commerce Clause and its impact on the government's ability to make people purchase 'things' to a friend of mine. I said the basic problem is forcing us to purchase insurance - which should be a choice. At a Federal level, what's to stop them from mandating that we all have to buy 2 new hybrid cars each year?
A friend of mine who is a lawyer agreed. She said (as a supporter of Obamacare) that she feels its biggest flaw is completely related to the Commerce Clause and while many feel it is dead, it is still codified and portions of it are clear. The government cannot make you do something you don't wish to do in your everyday life. Well, it's not supposed to anyway. We can find plenty of examples where it does (such as Selective Service, or pay taxes....but these have a very different relationship to what the government is allowed to get you to do).
Her view is there are enough challenges taking place, and enough specificity in the language of Obamacare that it will make them push back. She wouldn't be surprised to see more than 5 votes overturning it (I would - the sides are so polarized by now they just vote based on politics rather than real considered law, particularly in cases like this).
I hope you're wrong and the Clause wins out. I'd like to see more people recognize exactly why it was put in.
Sadly, we have a "Constitutional expert" in the White House who laments that the Constitution isn't good at telling government what it can do.
Um.....wasn't that the point, Mr. Expert?
One can only hope that the SCOTUS Will further crush the attempt to Federalize all law. They have done fairly well in the last few years. It may hinge on Kaga(e)n. Hope 'n Change
I'm not sure where the, 'commerce clause' is dead comments are coming from. I may well be wrong, but it seems to me that a majority of recent (thirty years or so) laws emanating from Congress, and upheld by SCOTUS, are based on.... " The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”.
This clause, its impact unknowable to the FF's at the time, is THE source of much that beguiles us nowadays.
The commerce clause is dead in the sense that it has been interpreted in ways that it was obviously never meant to be. Mostly, it started with FDR and we're still living with his lunacy.
I pray that it ObummerCare is thrown out at least on the grounds that the giverment can't force you to buy something - especially something to the giverment's specifications. Kagen should be recused since she had a hand in promoting it. The canard the Thomas should recuse himself because his wife is against it is laughable - or should be.
We'll see what happens. I hope we don't see it on TV. It would turn the whole proceedings into a circus.
Yes I too was a little confused by the statement that the Commerce Clause is "dead". It's all too lively on a daily basis in the many things the Feds get up to, pointing to the CC as the basis of its authority to act.
The notion that the CC might be self-limiting, or define the constrained powers of government, that's pretty dead. The bias is towards expanding government powers.
Barrister is dead on commenting that the Supreme Court will uphold Obamacare. Never mind Congress, there is too much money on the table to pass up the opportunity to pick some up by making that judgment.
The bad part is that this will make it necessary to purchase a commodity to be an American citizen, a thought that is absent from the Declaration of Independence or the Constitution.
Sadly this type of a governmental obligated consumer citizen of America was written about by science fiction writers in the early and mid-1980s.
(designed mainly, as I understand it, to eliminate then-existing obstacles to inter-state commerce)
AIUI, the original purpose of the commerce clause was to give the federal government power to establish a single, consistent set of rules for inter-state commerce and commerce with other countries. One of the many problems with the Articles of Confederation was that it allowed states to set their own commerce policies, even on goods from neighboring states. This led to a variety of problems. The Commerce Clause was supposed to put an end to that.
Democrats have the reverse-Midas touch. Their touch turns gold to dreck.
Examples: The housing market, auto industry, medical care system, educational system.
In-process tear-downs: U.S. military, stock market, energy industry, high-tech sector, U.S. Constitution, free speech, etc.
I could go on.
I agree with Bulldog TB. I'm not at all sure that this will pass muster. I know a lot of talking heads are spinning like crazy that Scalia and Kennedy are sympathetic to the government having recourse to control actions and the economy through use of the Commerce Clause, but I'm not convinced - in particular about Scalia.
This case does have a potential constitutional crisis built-in though - Elena Kagan. It is pretty clear that she has not only worked on the legal questions, but she personally supported it. She has to recuse herself if the outcome is to be anyway valid. The whole contretemps over Scalia's wife lobbying for insurance companies is a preemptive strike to distract from Kagan and is irrelevant.
It will be interesting that's for sure.
Like Obama, I don't know any Constitutional law, but most Supreme Court decisions are driven by politics. In this, eight of the votes are already cast; only Kennedy's vote is unknown. So, a single man, all by himself, will determine the future of medical care in the US. Amazing. One man. Isn't this the same as an absolute monarchy. Although without the benefit of God's appointment.
It should also be remembered that most Americans want socialism. They just don't want the name. We are drifting into the same authoritarian socialism that now rules Europe. It's just taking a little longer. But it's what Americans want. This sets the political atmosphere for all Court, Senate and House decisions.
The Republicans cannot stop this, even if they were to gain control of both Houses and the Presidency. Once the light bulb manufacturers got going, the present Republican-controlled House could not even overturn the light bulb ban. Is anyone deluded enough to think they could overturn Obamacare?
I deeply hope that I am wrong because the feds have shown little ability to run much of anything effectively or flexibly except the armed forces, much less 17% of the American economy.
That's it? Communism doesn't work?