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#219187 - 04/06/12 12:58 PM Re: The Supreme Court and ObamaCare's Demise? [Re: Ma_Republican]
Phil Hoskins Offline
Administrator
Carpal Tunnel

Registered: 06/07/04
Posts: 20594
Loc: West Hollywood, CA
Please post comments about health care and insurance costs etc on this thread, NOT HERE.
_________________________
Life is a banquet -- and most poor suckers are starving to death -- Auntie Mame
You are born naked and everything else is drag - RuPaul

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#220162 - 04/16/12 04:49 PM Re: The Supreme Court and ObamaCare's Demise? [Re: Phil Hoskins]
Phil Hoskins Offline
Administrator
Carpal Tunnel

Registered: 06/07/04
Posts: 20594
Loc: West Hollywood, CA
This is the line of attack by the right on Congressional powers:
Quote:
The unanimous panel easily disposed of the constitutional arguments against the law. However, the concurring opinion by Judge Janice Rogers Brown, joined by Reagan nominee Judge David Sentelle, was anything but unexceptional. One of the most extreme of George W. Bush's ideological nominees to the federal bench, she issued a clarion call to reverse decades of settled law and cripple Congress's constitutional ability to tackle national problems.

In a concurrence loaded with red meat for the political right wing, Judge Brown defended the ideology of the discredited Lochner era, when vitally necessary economic legislation was regularly struck down by an ideological Supreme Court dedicated to limiting the federal and state governments' ability to address the horrific consequences of unbridled capitalism.

The [plaintiffs] Hettingas' sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The [case] reveals an ugly truth: America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process."
Linkl
These battles dominated the Court's work during the 1930's and the pack of 4 on the Court seem intent on returning us to the 1920's
_________________________
Life is a banquet -- and most poor suckers are starving to death -- Auntie Mame
You are born naked and everything else is drag - RuPaul

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#220176 - 04/16/12 07:43 PM Re: The Supreme Court and ObamaCare's Demise? [Re: Phil Hoskins]
AustinRanter Offline
enthusiast

Registered: 10/29/06
Posts: 3643
Loc: Austin, Texas
Originally Posted By: Phil Hoskins
This is the line of attack by the right on Congressional powers:
Quote:
The unanimous panel easily disposed of the constitutional arguments against the law. However, the concurring opinion by Judge Janice Rogers Brown, joined by Reagan nominee Judge David Sentelle, was anything but unexceptional. One of the most extreme of George W. Bush's ideological nominees to the federal bench, she issued a clarion call to reverse decades of settled law and cripple Congress's constitutional ability to tackle national problems.

In a concurrence loaded with red meat for the political right wing, Judge Brown defended the ideology of the discredited Lochner era, when vitally necessary economic legislation was regularly struck down by an ideological Supreme Court dedicated to limiting the federal and state governments' ability to address the horrific consequences of unbridled capitalism.

The [plaintiffs] Hettingas' sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The [case] reveals an ugly truth: America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process."
Linkl
These battles dominated the Court's work during the 1930's and the pack of 4 on the Court seem intent on returning us to the 1920's


Phil, it seems to me that the Supreme Court will have to make a decision on the mandates in question in the Health Care Act via an interpretation of "substantive due process" as opposed to procedural due process...if the legal questions are somehow related to 5th and 14th Amendments issues.

I say that because there seems to be opinions by some who believe that some aspect of the 5th and 14th Amendments might be infringed on by creating and enforcing such mandates that Obama would like to see as an active part of the HCB.

It seems to be more abstract than a run-of-the-mill "Due Process" or "Right to Privacy" kind of issues. Just a thought.
_________________________
Turn on ANY brand of political machine - and it automatically goes to the "SPIN and LIE CYCLE" wink

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#220191 - 04/16/12 08:48 PM Re: The Supreme Court and ObamaCare's Demise? [Re: AustinRanter]
Phil Hoskins Offline
Administrator
Carpal Tunnel

Registered: 06/07/04
Posts: 20594
Loc: West Hollywood, CA
Ardy I must not see what those opinions see. There is no question that due process has been followed -- it is an act of Congress and there is not "taking" of anything. Just because there is the alternative of paying for insurance or paying a penalty does not require individual hearings on the penalty.
_________________________
Life is a banquet -- and most poor suckers are starving to death -- Auntie Mame
You are born naked and everything else is drag - RuPaul

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#220221 - 04/17/12 12:00 AM Re: The Supreme Court and ObamaCare's Demise? [Re: Phil Hoskins]
AustinRanter Offline
enthusiast

Registered: 10/29/06
Posts: 3643
Loc: Austin, Texas
Phil, as I said...I'm just bouncing around some of the opinions that I see on the Internet. The following is just one of many with regard to ObamaCare...and claims of 5th and 14th Amendment violations.

I mentioned "Substantive Due Process and Procedural Due process" because if you scan the many post around the Net...you'll see 5th and 14th Amendment related comments and opinions.

One term I didn't include in a lot of opinions is "Equal Protection".

And when I used the word "opinions" in my original post, it wasn't linked or referencing an S.C. opinion, but rather I said "some" believe or have the opinion of infringements based on 5th and 14th Amendments.

I also said "IF there is a legal argument that can be drawn from the 5th and 14th Amendment...THEN I see this issue being very abstract and have to believe that it would then be reviewed more from "Substantive Due Process" as opposed to Procedural Due Process".

Sorry, I'm not articulating my points very well.

The Supreme Court is going to have to apply some part of the Constitution to its final opinion and decision as to whether or not the ObamaCare Mandates are Constitutional.

What provisions in the Constitution do you speculate those opinions or decision will be based on?

Take the following as an Example of one of the many sites that are voicing similar arguments. Keep in mind, I just did a random selection. A search will pop up a lot of similar sites.


Quote:
Nullification of Obamacare

Link

In support of the movement to nullify Obamacare, here are two key ingredients that will help in understanding the necessity of nullification in this case.

The first is the difference between the roles of a national government and a federal government. A national government has direct governance over the people of a nation (as our government is currently doing with the so-called Patient Protection and Affordable Care Act). But a federal government only has governance over a federation of sovereign states. It's most basic duties are
To ensure that the states function well between themselves (e.g., commerce and public acts),
To provide for the common defense, and
To provide for proper foreign relations.

Simply put, the federal government is the glue that keeps the states together and the shield that protects them. Those are its duties. This limited governance over a federation of states is why the U.S. Constitution is relatively short. State constitutions are longer - each has a much wider scope because the vast majority of the laws of our country are to be handled on the state and local levels. And so, a federal healthcare law is completely out of place.

Second, we learn from the U.S. Supreme Court case of Marbury vs. Madison that "a law repugnant to the constitution is void." This is, of course, what nullification is all about.

Article VI of the Constitution says “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, ... shall be the supreme Law of the Land; ...” Because the so-called Patient Protection and Affordable Care Act violates the 5th Amendment, the 14th Amendment, as well as Article 1, section 8, it clearly does not fall within the “supreme Law of the Land.” Well, that begs the question: though it's not supreme, is it still a valid law? No. As Marbury vs. Madison tells us, because it is repugnant to the Constitution, it is void. It is not a law at all. We would be fooling ourselves if we carried out this so-called healthcare law.

Be assured that truth, reason, propriety, and constitutional law are all on the side of nullification of this erroneous law. There is nothing contradictory with truth from any side. But this so-called healthcare law crumbles under each of those four tests.

Each state legislator should follow the U.S. Constitution in every particular, and thereby fulfill his or her sacred oath of office to support it.
_________________________
Turn on ANY brand of political machine - and it automatically goes to the "SPIN and LIE CYCLE" wink

Yours Truly - Gregg



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#220225 - 04/17/12 04:27 AM Re: The Supreme Court and ObamaCare's Demise? [Re: AustinRanter]
NW Ponderer Offline
Moderator
veteran

Registered: 09/09/11
Posts: 11809
The problem with that analysis, Gregg, is that it is both simplistic, and wrong. (I recognize that you are just pointing out the arguments, not advocating.) And the error begins at the base of the argument:
Quote:
The first is the difference between the roles of a national government and a federal government. A national government has direct governance over the people of a nation ...But a federal government only has governance over a federation of sovereign states.
It is wrong because we do not have a federated government - as was the case in the Articles of Confederation - but a federal government with enumerated powers. As with most of these arguments, the promoter starts with the conclusion, then tries to fit his argument around it. Also, as with the Second Amendment, they tend to elide those portions of the Constitution which, inconveniently, do not correspond to their desired result - say, for example, Article I, Section 8, clause I - "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States[.]" Of course, argument about the meaning of "general welfare" has existed since ratification of the Constitution (indeed, even before), but the prevailing view has long been that the "general welfare" clause includes the general authority to tax and spend for the general welfare of the nation. Not an unlimited authority, but where it also affects another granted power - in this case "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" - the justification is at its strongest, not its weakest, point.

It's not that this Supreme Court is not above ignoring decades - even a century or more - of precedence to reach its desired result (e.g., Citizens United), it's just that this is such a fundamental question, and so well-established, that they will have to go a long way, and overturn so much, to reach it. I just don't know if they are prepared to do it.
_________________________
A well reasoned argument is like a diamond: impervious to corruption and crystal clear - and infinitely rarer.

Here, as elsewhere, people are outraged at what feels like a rigged game -- an economy that won't respond, a democracy that won't listen, and a financial sector that holds all the cards. - Robert Reich

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#220228 - 04/17/12 08:41 AM Re: The Supreme Court and ObamaCare's Demise? [Re: NW Ponderer]
Ma_Republican Offline
old hand

Registered: 02/12/04
Posts: 6330
Loc: USA
The problem is one of over stepping the authority that Congress actually has. If this law is allowed to stand, there are no longer any limits on what Congress can force Americans to do.

Legaleze and legal blather cannot make up for the logic behind this argument. Congress was never supposed to have this level of power and the fact that it has been awarded them through the courts does not change that fact. What the courts give, the courts can take away.
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A proud member of the Vast Right-wing Conspiracy, Massachusetts Chapter

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
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#220229 - 04/17/12 08:58 AM Re: The Supreme Court and ObamaCare's Demise? [Re: Ma_Republican]
logtroll Offline
old hand

Registered: 04/25/10
Posts: 6199
Loc: New Mexico (not old Mexico)
Originally Posted By: Ma_Republican
The problem is one of over stepping the authority that Congress actually has. If this law is allowed to stand, there are no longer any limits on what Congress can force Americans to do.

Legaleze and legal blather cannot make up for the logic behind this argument. Congress was never supposed to have this level of power and the fact that it has been awarded them through the courts does not change that fact. What the courts give, the courts can take away.

Ma_R, which kind of logic are you employing? Arriving at a conclusion based only upon an opinion is not a logical form that I can find described anywhere. Which makes it difficult to follow, or discuss, your asserted logic.

Maybe your claim is actually just an unsupported opinion? Hmm That would make more sense. And there would be no need to argue with your opinion, especially in the absence of any information or facts. One is the sole authority on one's own opinion, after all. I cite myself on that one. ThumbsUp

I had hoped to hear a Conservative's explanation of the relevance of the 5th and 14th Amendments to why the ACA is purportedly unconstitutional. It seems that the argument centers on some issue of due process. As a Conservative, what do you propose would be appropriate due process as applied to the ACA?


Edited by logtroll (04/17/12 09:05 AM)
Edit Reason: good question
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#220231 - 04/17/12 09:02 AM Re: The Supreme Court and ObamaCare's Demise? [Re: Ma_Republican]
rporter314 Offline
old hand

Registered: 03/18/03
Posts: 4822
Loc: Highlands, Tx
Quote:
The problem is one of over stepping the authority that Congress

and the problem is ... where is your supporting argument?
it is simply a statement and in this case a statement of some emotional reaction to a law to which you disagree.

Here is an analogous example: the moon is made of cheese and without any supporting argument or facts it is simply wasted bandwidth

here is what i do: try to argue the proposition from competing viewpoints and see which one makes more sense ... sometimes neither make enough sense for me to form an opinion, etc
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ignorance is the enemy
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#220252 - 04/17/12 01:02 PM Re: The Supreme Court and ObamaCare's Demise? [Re: rporter314]
Schlack Offline
veteran

Registered: 07/22/04
Posts: 9551
Loc: Ireland
George Washington's Health Insurance Individual Mandate

Quote:
In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.
_________________________
"The basic tool for the manipulation of reality is the manipulation of words. If you can control the meaning of words, you can control the people who must use the words."
(Philip K.Dick)


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