Archive for March 27th, 2012

U.S. Supreme Court Oral Arguments: Obamacare Mandates Or Forces American People To Buy Government Approved Insurance That They May Neither Need, Want or Afford–Young To Subsidize The Sick And Old–Unconstitutional And Illegal Power–Videos

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SCOTUS Obamacare Individual Mandate Oral Arguments March 27, 2012

Obamacare, Mandates and Regulatory Confusion: Reason-Rupe Poll Results with Emily Ekins

32 Percent Favorable of New Health Care Law; 50 Percent Unfavorable

Emily Ekins | March 28, 2012

http://reason.com/poll/2012/03/28/32-favorable-of-new-health-care-law-50-u

Reason-Rupe Public Opinion Poll March 2012

http://reason.com/assets/db/13327241811317.pdf

AFTERBURNER: How to Steal Power 

Yaron Answers: Should the Supreme Court Overturn Obamacare?

Special Report Examines ‘Substantial’ Cost Increase For President’s Health Law 

Andrew Napolitano Predicts 5-4 Obamacare Defeat!

Ron Paul Exposes Obamacare on Freedom Watch

Andrew Napolitano – Commerce Clause Gone Wild 

David Rivkin Explains the Problem with ObamaCare’s Individual Mandate

Is Health Law’s Individual Mandate Constitutional? Legal Scholars Debate

Audio From Supreme Court Oral Arguments on Healthcare Mandate – Obamacare Part 1

Audio From Supreme Court Oral Arguments on Healthcare Mandate – Obamacare Part 2

Audio From Supreme Court Oral Arguments on Healthcare Mandate – Obamacare Part 3

Audio From Supreme Court Oral Arguments on Healthcare Mandate – Obamacare Part 4

Toobin: Obama healthcare reform law ‘in grave, grave trouble’

By Daniel Strauss – 03/27/12

“…A top legal analyst predicted Tuesday that the Obama administration’s healthcare reform legislation seemed likely to be struck down by the Supreme Court.

Jeffrey Toobin, a lawyer and legal analyst, who writes about legal topics for The New Yorker said the law looked to be in “trouble.” He called it a “trainwreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

Toobin’s observation came on the second day of oral arguments at the Supreme Court over the constitutionality of the Affordable Care Act.

Earlier that day, Supreme Court Justice Anthony Kennedy, who could be the deciding vote on whether to uphold the law, told Solicitor General Donald Verrilli that there appeared to be a “very heavy burden of justification” on aspects of the law, according to The Wall Street Journal.

Toobin described Kennedy as “enormously skeptical” during the arguments Tuesday. …”

http://www.youtube.com/watch?v=69Yu7PFwBZo

The Insurance Mandate in Peril

First Congress said it was a regulation of commerce. Now it’s supposed to be a tax. Neither claim will survive Supreme Court scrutiny.

By RANDY E. BARNETT

“…”tell” in poker is a subtle but detectable change in a player’s behavior or demeanor that reveals clues about the player’s assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month’s health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate’s defenders changed the argument—now claiming constitutional authority under Congress’s power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an “individual responsibility requirement” that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: “The individual responsibility requirement provided for in this section,” the law says, “. . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” Paragraph (2) then begins: “The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.”

In this way, the statute speciously tries to convert inactivity into the “activity” of making a “decision.” By this reasoning, your “decision” not to take a job, not to sell your house, or not to buy a Chevrolet is an “activity that is commercial and economic in nature” that can be mandated by Congress.

It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic “activity” that substantially affects interstate commerce. But the Court has never upheld a requirement that individuals who are doing nothing must engage in economic activity by entering into a contractual relationship with a private company. Such a claim of power is literally unprecedented. …”

http://online.wsj.com/article/SB10001424052748704446704575206502199257916.html

Birth-Control Mandate: Unconstitutional and Illegal

It violates the First Amendment and the 1993 Religious Freedom Restoration Act.

By DAVID B. RIVKIN JR.
AND EDWARD WHELAN

“…The refusal, for religious reasons, to provide birth-control coverage is clearly an exercise of religious freedom under the Constitution. The “exercise of religion” extends to performing, or refusing to perform, actions on religious grounds—and it is definitely not confined to religious institutions or acts of worship. Leading Supreme Court cases in this area, for example, involve a worker who refused to work on the Sabbath (Sherbert v. Verner, 1963) and parents who refused to send their teenage children to a public high school (Wisconsin v. Yoder, 1972).

In the high-school case, the Supreme Court found that even a $5 fine on the parents substantially burdened the free exercise of their religion. Under the Patient Protection and Affordable Care Act, employers who fail to comply with the birth-control mandate will incur an annual penalty of roughly $2,000 per employee. So it is clearly a substantial burden.

Objecting employers could, of course, avoid the fine by choosing to go out of business. But as the Supreme Court noted in Sherbert v. Verner, “governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against” noncompliant parties.

The birth-control mandate also fails the Religious Freedom Restoration Act’s “compelling governmental interest” and “least restrictive means” tests. …”

http://online.wsj.com/article/SB10001424052970204795304577223003824714664.html?mod=googlenews_wsj

ObamaCare and the Limits of Government

By David B. Rivkin Jr. & Lee A. Casey

“…The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.

The President’s health-care law faces a Constitutional reckoning, Daniel Henninger discusses on Opinion Journal.

As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.

Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.

If Congress can require individuals to buy or otherwise obtain and maintain health insurance simply because they may be said to impact commerce by their very existence, without regard to any particular activity in which they have chosen to engage, then there is no limit on federal power. For example, if Congress can require you to buy health insurance because your lack of insurance may, at some point in the future, impose costs on the wider economy, then on the same theory it can require the purchase (or sale) of virtually any good or service, since the failure to have or use the relevant product can always be said to have some economic impact. …”

http://multistatelawsuit.com/

Obamacare Mandates Justified by ‘Interstate Commerce’?The administration’s argument before the Supreme Court recycles an old trick.

By Thomas Sowell

“…Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’s power to regulate interstate commerce.

Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal governmenthad no right to tell him how much wheat (which never left his own farm) he could grow.

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The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right.

But the Supreme Court said otherwise. Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market.

The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment’s limitations on the powers of the federal government virtually disappeared.

Over the years, “interstate commerce” became magic words to justify almost any expansion of the federal government’s power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today’s Supreme Court to uphold the administration’s power to tell people that they have to buy the particular health insurance specified by the federal government. …”

“…Since virtually everything affects virtually everything else, however remotely, “interstate commerce” can by this kind of sophistry justify virtually any expansion of government power.

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic in a world where all sorts of things have some effect on all sorts of other things.

As an example, take a law that liberals, conservatives, and everybody else would agree is valid — namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them. No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope. …”

http://www.nationalreview.com/articles/294623/obamacare-mandates-justified-interstate-commerce-thomas-sowell

Background Articles and Videos

Wheat, Weed, and ObamaCare: How the Commerce Clause Made Congress All-Powerful

The Consitutionality of the Individual Mandate

Cato’s Michael F. Cannon Discusses ObamaCare’s Individual Mandate

Jagadeesh Gokhale Details ObamaCare’s Medicaid Cost Increases  

The Constitutionality of the Individual Mandate 1-7-11

Thomas Sowell on the ineffectiveness of federal agencies 

Thomas Sowell and a Conflict of Visions 

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