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So We Agree!

[ 124 ] March 28, 2012 |

Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional:

If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.

And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.

Absolutely correct! In other words, the mandate is a necessary and proper part of a regulatory framework all parties concede is constitutional, and hence should be upheld. I’m glad we’ve reached a consensus here.

Comments (124)

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  1. Karate Bearfighter says:

    This is ridiculous.

    Why are we here? The real problem is Pelosi et al.

    Pelosi: “We have to pass the health care bill so that you can find out what is in it.”

    How crazy is that? What a waste of time and money passing something they probably knew would have problems passing constitutional muster.

    The moron Democrats had it all. They could have done something constructive for the country.

    It’s just sad. I’m sad.

    • AAB says:

      Under Wickard, this bill should have no problem whatsoever passing constitutional muster. That 5 Justices may conclude otherwise is not an indictment of Democrats.

    • Richard says:

      Sure. Just a wave of the magic wand and we would have had a single payer system (despite the fact there weren’t ten votes in the Senate for it). The fact is that, other than a few libertarian law professors, no one in the country, including the Republican opponents of all health care reform, was claiming that the mandate was unconstitutional when Hilary was campaigning on it. It was only after it passed did the Republicans come up with the argument.

      The fact is that, given no support for single payer, any health care bill that requires coverage for preexisting conditions has to include mandated coverage unless you want insurance premiums to skyrocket (or unless you want to force insurance companies to operate at a loss)

      • Jesse Levine says:

        I assume you mean no support for single payer among corporatist Democrats, since poll after poll showed a majority ofAmericans support single payer or government option.

        • joe from Lowell says:

          The second sentence of the comment you replied to:

          Just a wave of the magic wand and we would have had a single payer system (despite the fact there weren’t ten votes in the Senate for it).

          There is an old saying about the word “assume.” This is a novel spin to put on it.

    • Incontinentia Buttocks says:

      Seeing as virtually nobody argued that this was unconstitutional before it became law, the notion that the Democrats should have anticipated that it would be seen as unconstitutional is ridiculous.

      • Uncle Hinkle says:

        Seeing as virtually nobody argued that this was unconstitutional before it became law, the notion that the Democrats should have anticipated that it would be seen as unconstitutional is ridiculous.

        It’s the responsibility of lawmakers to stay within constitutionality. Novel explanations with flawed logic doesn’t change reality.

        What’s happening in the court now is the reality.

        Welcome to reality.

        • joe from Lowell says:

          You mean, “Welcome to this new reality, that doesn’t actually exist, has never actually existed, but I hope will be brought into existence by an upcoming Supreme Court decision.”

          Because this “reality” you’re talking about, where passing a health care reform plan with an individual mandate doesn’t count as staying within constitutionality, does not exist, and has never existed.

          It is not the responsibility of lawmakers to limit their actions to non-existent definitions of constitutionality.

      • david mizner says:

        I’m not sure if prominent voices were claiming the health care mandate was unconstitutional when Edwards and then Clinton proposed one, but I do recall a lot of blogospheric chatter in that regard. And not just on the right. I saw both single-payer advocates and Obama supporters making that argument, although most of the criticism, true, was not on legal grounds. Of course, people have a tendency to call things they don’t like “unconstitutional.” Certainly, long before it became law, the right-wing was calling the mandate unconstitutional. I’m sure the Obama admin anticipated a challenge. All along there’s been a whistling-by-the-graveyard element to the Dems’ attitude toward the deeply unpopular (and, in the view of the right, unconstitutional) mandate.

        • Scott Lemieux says:

          I saw both single-payer advocates and Obama supporters making that argument, although most of the criticism, true, was not on legal grounds.

          Apart from that, Mrs. Lincoln…

          • david mizner says:

            ?

            I was responding to a comment that said “virtually no one” said it was unconstitutional before it became law. That comment referred only to criticism from the left during the primary.

            If you think the mandate-is-unconstitutional argument was rare prior to March 2010, you’re misremembering or weren’t paying attention.

            • Richard says:

              I paid a lot of attention I dont remember a single critic on the left who said the individual mandate was unconstitutional.

              • Scott Lemieux says:

                I agree. Not only did I not hear anyone claim that the mandate was unconstitutional in 2008, conservatives had no constitutional problems with a nearly identical pension mandate. If you have any cites of people making this argument before the ACA was being deliberated, let’s see ‘em.

                • Sherm says:

                  Not a word from the bastards, not a word. The NY Times had a decent article yesterday on the libertarian law professor who is allegedly responsible for manufacturing this constitutional objection to ACA.

                • Richard says:

                  Who was that? Barnett? Somin?

                • david mizner says:

                  Notice the original comment in the thread:

                  virtually nobody argued that this was unconstitutional before it became law.”

                  That pre-March 2010. So to accept this, you have to have missed the entire tea party eruption. Many people on the right were calling it unconstitutional, so the notion that the Obama White House would’ve not unanticipated this is silly.

                  I googled for 2 secs and found this quote from 2007:

                  http://liberalvaluesblog.com/2007/12/30/obama-addressed-the-free-rider-program-on-mtp/

                  Before Obmaa, Cllnton or Edwards try to foist off their healthcare mandate, they need to read the Constitution. The only thing the federal govermnnt can mandate of the free citizen to to pay the income tax, and that required a constitutional amendment. Any federal healthcare mandate is unconstitutional.

                  It was a talking point on the right.

                  In addition, some not-prominent liberals on the blogs during the primary questioned its constitutionality, though as I said, their primary arguments weren’t constitutional.

                • Sherm says:

                  Richard, it was Barnett

                • Richard says:

                  Thanks, Sherm. I thought it was Barnett but didn’t read the article. Barnett is as smart as they come, a very good debater and a really pleasant guy. Everybody likes him. He’s wrong on everything but a formidable opponent

              • joe from Lowell says:

                Notice how Mizner shifted the goalposts from the 2008 elections to “before March 2010.”

                There were, of course, plenty of right-wing voices calling the mandate unconstitutional between the Summer of 2009 and the passage of the Senate reconciliation bill in March 2010.

                However, there really weren’t any Republicans calling the individual mandate unconstitutional before it was settled upon as the structure of the Democrats’ bill. There were libertarians, though.

                • Scott Lemieux says:

                  While IB did say “before it became law,” but without wanting to speak for her I feel safe assuming she meant “before a Democratic President and Congress seriously tried to pass it.” The Tea Party would have called anything that passed unconstitutional, and the chief architect of the ACA challenge thinks that the modern welfare state is unconstitutional.

                • david mizner says:

                  Scott, it’s kind of you to put words in IB’s comment (I think IB’s a great commenter, btw), it would require you to ignore the second part of the comment.

                  the notion that the Democrats should have anticipated that it would be seen as unconstitutional is ridiculous.

                • Scott Lemieux says:

                  No it doesn’t. IB is right — Democrats had no reason to anticipate that it would be called unconstitutional before they had already committed to the plan, at which point the ad hoc argument that it was unconstitutional started to be developed.

                • david mizner says:

                  So what you’re saying, Scott, is that no one could have anticipated that conservatives who were calling it unconstitutional would challenge its constitutionality and be able to find sympathetic right-wing judges. Simply astonishing.

                • Scott Lemieux says:

                  No. What I’m saying is that nobody was saying that it was unconstitutional until Democrats were already committed to it.

                • howard says:

                  broadly speaking, i have to agree with david mixner here.

                  it’s not a state secret that there are 4 justices with a great deal of hostility towards the regulatory state that has emerged since the new deal, and it’s further not a state secret that these 4 justices (scalia in particular) have no particular interest in precedent if they don’t agree with it.

                  which is why kennedy has always been regarded as the swing vote.

                  at this late date, in short, there is no reason for democrats to assume anything from the court system, which has been salted with federalist society types, and i, for one, always expected the constitutionality of the bill to be questioned, and the decision to come down to kennedy.

                • Honorable ......BOB says:

                  What I’m saying is that nobody was saying that it was unconstitutional until Democrats were already committed to it.

                  If there’s no committment to a plan, why would anyone consider one way or the other?
                  Once they had a direction, then it gets attention….

    • joe from Lowell says:

      I can’t believe you’re actually pushing this wingnut talking point about the Pelosi quote.

      And I can’t believe you’re blaming the existence of the lawsuit on the Democrats – as if your dream-world health care reform plan wouldn’t end up in front of the Supreme Court.

      • Davis X. Machina says:

        The purchase mandate, and the auto-insurance analogy in its defense, can be found first perhaps on page six of <A href="http://healthcarereform.procon.org/sourcefiles/1989_assuring_affordable_health_care_for_all_americans.pdfAssuring Affordable Health Care for All, the 1989 Heritage Foundation study. (PDF)

        Yep. That Heritage Foundation.

      • John says:

        I think this might actually be a wingnut, rather than a firebagger.

      • Jesse Levine says:

        No, Joe, nearly every Justice on the Court agrees single payer is constitutional. So what we have with the mandate is a half assed compromise for the benefit of the insurance companies which not only jeapordizes the really good parts of the act, but may set a new and much higher jurisprudential bar for future progressive legislation.

        • Hogan says:

          No, Joe, nearly every Justice on the Court agrees single payer is constitutional.

          And will continue to agree until an actual single-payer system is created.

          • timb says:

            And will continue to agree until an actual single-payer system is created.

            don’t forget “created by a Democratic President and Democratic Congressional majorities.

            If a Republican suggests it, it’s just unpalatable. See, Medicare, Part D

          • Jesse Levine says:

            Medicare?

            • Hogan says:

              Has that question been brought before this court?

              • david mizner says:

                Well, in the 30s The Supreme Court ruled that Social Security was constitutional, and Medicare is technically part of Social Security, right?

                • Hogan says:

                  Medicare was passed as a set of amendments to the Social Security Act, yes. That in itself doesn’t certify its constitutionality.

        • joe from Lowell says:

          No, Joe, nearly every Justice on the Court agrees single payer is constitutional.

          And prior to the ACA being passed, there was not a justice on the court who had ever made a peep about an individual mandate being unconstitutional.

          Why are there so many professed leftists, who consider themselves to be skeptical of conservatives, who suddenly become so credulous when conservatives profess to believe something that just happens to be momentarily useful for derailing an actual, existing liberal initiative?

          Sure, conservatives consider single payer perfectly constitutional. Just like they considered individual mandates perfectly constitutional when Clinton’s health care plan was being debated. You want to take these people at their word, you go ahead. Single-payer health care would sail right through Thomas, Alito, Scalia, and Roberts. Isn’t it pretty to think so?

          BTW, do you know what has actually, as opposed to theoretically, set a higher bar for progressive legislation? Democrats holding out for their magical pony plan and losing, when a compromise plan was available to pass. As opposed to your speculation, that has actually happened several times in the past few decades.

          • Jesse Levine says:

            So you think that a crappy plan subject to a constitutional attack is better than a good plan subject to a constitutional attack?

            • Scott Lemieux says:

              So you think that a crappy pretty good on balance plan subject to a constitutional attack is better than a good plan THAT HAS NO CHANCE OF GETTING EVEN 20 VOTES IN THE SENATE SO THE CONSTITUTIONAL CHALLENGE IS MOOT subject to a constitutional attack?

              FIFY.

              • Jesse Levine says:

                The mandate was never good, politically or as a matter of policy. If it holds, it institutionalizes the private health insurance industry as the chief financial component of health care for decades. If it doesn’t, then we spend the next decade trying to cobble something together over a reinvigorated opposition. My argument with Obama has always been that his starting point for “negotiation” was a back room deal with the insurance industry.

                The DFHs aren’t the ones who were naive about the good faith of the opposition, it was the “pragmatists”. Proposing something his originally ardent supporters (including me) could support never entered his (or Rahm’s) mind.

                • Richard says:

                  Because something people like you (his ardent supporters) had no chance of passage. None, None at all. If he had started the negotiations with a single payer plan, people would have walked away from the negotiations and it would never have gone through committee (the fate of Hilary’s plan under Bill’s presidency). Same if he had started with a public option with no mandate but pre-existing condition coverage. Without the support of the insurance companies, no bill can pass this Congress or the one we had in 2008.

                • Scott Lemieux says:

                  You’re right; Obama believed that any health care legislation would have to buy off entrenched interests. He believed this because it’s obviously true. If you think that a bill that destroyed the American health insurance industry would get any support in Congress you’re dreaming in technicolor. Whether single payer would have “invigorated” you would be relevant if you become the median vote in the Senate.

                • joe from Lowell says:

                  If it doesn’t, then we spend the next decade trying to cobble something together over a reinvigorated opposition.

                  Do you know anything, anything at all, about the history of health care reform?

                  Do you know anything about Harry Truman? Do you know anything about Richard Nixon, about Ted Kennedy? Were you sentient during Bill Clinton’s presidency?

                  You’re sitting here, insisting that the right way to go about trying to pass health care reform is to refuse to take the deal that can actually pass – a profoundly ignorant statement in and of itself – but you’re going to back it up by claiming that this strategy is preferable because of the problem of trying to pass something over a reinvigorated opposition?

                  COME ON, MAN!

              • Richard says:

                You’re being very generous in allowing the possibilty of twenty votes. An alternative plan – single payer or public option without a mandate – wouldn’t have got ten votes

                • Sherm says:

                  http://tpmdc.talkingpointsmemo.com/2009/10/30-senators-sign-letter-supporting-public-option.php

                  Of course, 30 wasn’t enough, but I wish there was more of a push from the white house (there was none), and I also think it was a tactical error to start working on healthcare reform immediately after the stimulus bill. It helped the right wing’s campaign of deception by making the big spending liberal label stick, especially since they somehow managed to conflate him with Bush’s bailout. If he had done healthcare first, the public option would have had a better chance.

                • Scott Lemieux says:

                  You think that health care would have had a better chance of passing before stimulus in the middle of the worst economic crisis in 70 years? That’s insane.

                • Sherm says:

                  Scott, yes, just like Bush took political advantage of 9/11, Obama could have taken advantage of the financial crisis. But he was too decent of a person to do so.

                • Jesse Levine says:

                  CBS/NYT poll Feb. 5, 2009. 59% support public health plan. He could have tried to start the debate if he wanted to.

                • joe from Lowell says:

                  He could “start a debate,” or he could pass a bill.

                • joe from Lowell says:

                  Obama could have taken advantage of the financial crisis

                  He did. The ACA passed by the skin of its teeth. Absent the political tail winds, and huge Congressional majorities, produced by the economic crisis, it doesn’t.

                  Finally, after 60+ years of trying, actually passing comprehensive health care reform was taking advantage of the economic crisis.

                • He could have tried to start the debate if he wanted to.

                  If we look at his campaign platform I don’t recall that single-payer was a part of that. So indeed it’s possible that he did not want to do that, and the mustering support argument is moot. And then what?

                • Richard says:

                  There weren’t thirty for single payer. And there weren’t thirty for public option without a mandate. Adding public option to the mandate doesn’t save it from the constitional challenge

            • joe from Lowell says:

              A plan that passes Congress is better than a plan that does not, if they are both subject to challenge.

              I’ll grant you this, though: a plan that never comes up for a vote in the Senate, and is voted down in the House, would never end up being challenged in the federal courts like this. Point for Mr. Levine!

          • david mizner says:

            Well, a lot of conservatives (like Rick Perry) think Medicare is unconstitutional but haven’t mounted a successful legal challenge to it.

            • Sherm says:

              The word “Medicare” is nowhere to be found within the four corners of the constitution, thus its unconstitutional. Duh!

        • Richard says:

          But single payer didn’t have TEN votes in the Senate. None of the presidential candidates supported it. It could never, let me repeat never, have passed. The fact that most of the right concedes it is constituional doesn’t matter if it never could have passed.

          • Honorable ......BOB says:

            But single payer didn’t have TEN votes in the Senate. None of the presidential candidates supported it. It could never, let me repeat never, have passed.

            Good LORD, man. There’s a reason for that and that is anyone who voted for it would have been run out on a rail.

            The public doesn’t want it. Hell they really don’t want this either.

    • fasteddie9318 says:

      Shorter Karate Bearfighter:

      Derp derp derp fart. WAR, bitchez.

    • mark f says:

      Pelosi: “We have to pass the health care bill so that you can find out what is in it.”

      How crazy is that?

      Unfortunately Google only returns five-second videos and wingnut sites for this quote, so the full context seems to have vanished. But it’s obvious that when she says “so YOU can find out” she means that once ACA is put into practice the public will better understand and appreciate its provisions. This was after months — years! — of dishonest debate that left it basically impossible to talk about the bill without people fainting. It wasn’t meant to be a constitutional statement, nor was it ever (even then!) the whole of her argument in favor of the bill.

      Sinister!

      • joe from Lowell says:

        Unfortunately Google only returns five-second videos and wingnut sites for this quote

        So far, this quote that one can only find on wingnut web sites has been posted in the comment threads over the last 24 hours by “Karate Bearfighter,” “Just the Facts,” and “Nationwide Girl,” all of whom swear to fucking God that they are actual left-liberals.

      • Hogan says:

        I did manage to find the end of that sentence, always cut off in the quoting: “away from the fog of controversy.” In the sense that once a final bill has actually been passed, you can compare that to the shit that wingers have been spreading about it.

        • mark f says:

          Exactly. It wasn’t an admission that for anyone knows Fidel Castro wrote the thing, but, hey, fuck it, let’s just see what happens.

    • Karate Bearfighter says:

      This is nym-jacking.

  2. howard says:

    yes, but is it necessary and proper for me to forced to eat broccoli? or not eat it? or have my broccoli eating subsidized? or whatever the broccoli argument is supposed to be?

  3. howard says:

    actually, as a related matter, we know the no ban on preconditions polls extremely well and we know the mandate polls poorly, but to the best of my knowledge, i haven’t seen any poll-taker go the next step and say “how about if i explain to you that the mandate is necessary for the end of bans on pre-existing conditions, now how do you feel about it?”

    is anyone aware of that question being polled?

    • Incontinentia Buttocks says:

      Funny thing is, I’m not even aware of any Democratic politician trying to explain this point. And you’d have thought that sometime between 2009 and today they would have put it on their to-do list.

      Oh well.

      Too late for that now.

      The technocratic desire to conduct our politics without politics fails yet again.

      • Richard says:

        I think numerous Democratic talking heads have made this point (and Hilary made the point in at least one of the debates with Obama) but it has certainly not been emphasized enough. It should have been because its such a simple point – if you require coverage of pre-existing conditions, you have to mandate coverage or insurance premiums will go up significantly. If you don’t want a mandate, then there is no way to requre coverage of pre-existing conditions without an increase in premiums (or a system like single payer)

        • joe from Lowell says:

          I think it has been pretty well established by now that the only explanation for a political or policy argument not being widely understood or accepted is that it was not argued for by the Democratic leadership.

          It’s sort of like how the 2010 elections went poorly because there was absolutely no effort made by the White House to advocate for the benefits of the stimulus plan, perhaps by having the President campaign across the country giving speeches in which he reminded the nation of what the Republicans did to the economy, how his policies improved it, and perhaps equating voting for Republicans to giving the keys back to someone who just crashed a car. Gosh, I am unaware of anyone doing that before the elections.

          • Scott Lemieux says:

            Joe, how could you deny the power of the BULLY PULPIT to change minds, just like when Clinton’s communication-obsessed health care strategy made his proposal more popular than free beer?

            • joe from Lowell says:

              But Scott, with unemployment at 10.5% on election day, there were even more people watching daytime television, when the President made those speeches, so the bully-pulpit effect should have been even more pronounced.

              Therefore, we can only conclude that he never made the speeches.

            • Sherm says:

              That’s a little revisionist. Clinton actually had a bit of a mandate on healthcare (more so than Obama), having run on the idea of reform. But he dawdled and then put his highly unpopular wife in charge of the commission, which was an invitation for criticism. In the meantime, the critics had a field day, and the “Harry and Louise” ads ran.

              You can mock the notion of a bully pulpit, but I don’t think that you can deny that taking the initiative to the frame the debate is an effective way to win an argument. With “Hilarycare” and again with “Obamacare”, the opponents framed the debate. The supporters did not. Nor is starting at a compromise position an effective method of negotiation.

              • Murc says:

                But he dawdled and then put his highly unpopular wife

                Does Clinton have some other wife I’m not aware of?

                I could be wrong, but if I recall correctly Hillary’s favorables have never, EVER fallen below fifty percent in the entire time she’s been a national figure. And that’s basically unheard of.

                Hillary Clinton has always been moderately-to-very popular. The fact that there are a lot of people who loathe her and won’t stop howling about it doesn’t change that.

                • Sherm says:

                  I don’t know the numbers, but my recollection is that she was despised by a lot of people in the early to mid 90′s, mostly for bullshit, sexist reasons.

                • Sherm says:

                  Just checked. She was below 50% from 1994 through 1996, with a low of 43%. And putting her in charge of the commission was a tactical blunder by Clinton, among others.

              • Scott Lemieux says:

                Clinton took the initiative. His entire strategy was to ignore Congress and explain his plan to the public, just as we’re told Obama should have done. People don’t think he “took the initiative” because it didn’t work, which certainly can’t be because the bully pulpit is not a major source of power.

                Also, you can’t “negotiate” with people who are actively opposed to passing something. Increasing your opening bid doesn’t provide leverage if a majority of the people you need are happy to walk away; indeed, it just gives them an excuse.

                • Sherm says:

                  But Clinton did not do it effectively. If my recollection is correct, he begged for a fight by using the “bully pulpit” to threaten a veto to any republican modifications. He overplayed his hand. Obama did the exact opposite. I don’t profess to be an expert on presidential history and the “bully pulpit,” but a president’s misuse of the “bully pulpit” is not evidence that a president lacks the ability to alter political debate.

                  You may be 100% correct about Obama’s handling of ACA, but we’ll never know, and I don’t quite get why people are so quick to defend him against those who feel a little sold out by his failure to advocate for the public option. He had a democratic majority in both house, if the republicans walked away, he goes back to the moderate dems with the individual mandate and passes the bill with no republican support. No harm. No foul.

                • joe from Lowell says:

                  I see two possible answers to this question about the efficacy of their use of the bully pulpit:

                  1) Bill Clinton and Barack Obama stand out as two Presidents who are particularly incapable of understanding and applying public communication towards the advancement of political ends.

                  2) The bully pulpit isn’t all it’s cracked up to be.

                • Scott Lemieux says:

                  Ah, yes. It’s not that the bully pulpit is ineffective. It’s just that, amazingly enough, neither Reagan, Clinton, nor Obama were able to use it effectively. We cannot rule this out to an absolute certainty, but we can say that it’s implausible in the extreme. At some point, when one otherwise politically skilled president after another is unable to use it with any success, you have to consider the possibility it’s not just that nobody but you knows what they’re doing.

                • joe from Lowell says:

                  neither Reagan, Clinton, nor Obama were able to use it effectively.

                  However, the best way to understand George W. Bush’s success at passing a large tax cut and convincing the public to got to war after 9/11 is to attribute those outcomes to his ability to use communication skills far beyond those of available to a mere Reagan, Clinton, or Obama.

    • Davis X. Machina says:

      You can poll it only when you’re sure your respondents understand it. In a world where 40-50% of adults never really achieve formal operational though, it’s probably a lost cause.

    • pete says:

      Good question, about follow-up polling. This Gallup one seems as comprehensive as I’ve seen and it does not include that. It does show that a significant number of those who wants changes to Obamacare (as we are now instructed to call it) are in favor of expanding it; but even that requires careful parsing of the questions, whose wording has varied. Polling is data not necessarily information.

  4. actor212 says:

    That’s gonna leave a mark.

  5. Njorl says:

    Hasn’t Scalia argued that the mandate is not “necessary and proper” because the government could have solved the problems with a single payer system based on tax revenue?

    I think the mandate is constitutional without resorting to the n&p clause, but I’d be interested in hearing a counter to Scalia’s argument.

    (No, IANAL, I’m just arguing because I want to know.)

    • Hogan says:

      This will be true only until Congress passes a law to create such a system, at which point Scalia will find some reason that that’s also unconstitutional.

    • joe from Lowell says:

      The existence of one “necessary and proper” remedy does not demonstrate that other remedies are unnecessary or improper. There is more than one way to skin a cat.

    • Scott Lemieux says:

      That’s relevant only if McCulloch has been overruled in private or something. It’s been settled for almost 200 years that “necessary” in the n&p clause doesn’t mean “necessary” in the strict dictionary sense.

      • It is the “proper” part that is harder to reach.

        • Richard says:

          I think Scalia is saying that the mandate might be necessary but not proper. Its an argument that has been made, I think by Somin, at the Volokh Conspiracy and in one of the amicus briefs but I haven’t followed that debate

        • L2P says:

          Not under current law. The mandate itself doesn’t violate any constitutional provision. In order for the mandate to not be “Proper,” “Proper” would have to be read to mean not just avoiding any constitutional problems, but also having separate authority for Congress to act in the Constitution.

          The reason the clause has never been read that way is that such a reading would write the clause out of the Constitution. If Congress had authority to act elsewhere in the Constitution, it wouldn’t need the Necessary and Proper clause. Only hardcore federalists like Ilya think it should be read that way.

        • Scott Lemieux says:

          The idea that something that violates no constitutional provision can be “necessary” but not “proper” is something that as far as I can tell Alito and Scalia just made up yesterday, with no basis in the case law.

    • L2P says:

      Scalia is making the novel argument that something is not “necessary and proper” if you can think of another way to accomplish the goal. This would write the Necessary and Proper clause out of the Constitution, because there is always an alternative way to accomplish any goal.

      In other words, Scott’s right – Scalia would have to overrule McCulloch to make this argument. He’s always willing to do stuff like that, since he’s so much smarter than everybody else and all, but that’s what he would have to do.

  6. Ben says:

    Can you expand on this a little bit?

    Because in the briefs I don’t see the ludicrous Vinson argument that the mandate doesn’t affect commerce. And I don’t see the argument that the individual mandate isn’t essential to the community-rating and guaranteed-issue provisions.

    I see arguments saying that the mandate can’t be a necessary and proper component of regulating commerce because it creates commerce; that it can’t be proper because it creates a plenary power which is expressly forbidden; that an otherwise invalid law isn’t shielded from constitutional review by being a necessary component of a regulatory scheme.

    The preceding was a parade of nonsense, obviously. But none of it is contradicted in the least by the “devastating rebuttal” that the mandate is required for the overall regulatory scheme to work.

    This is borne out in Clement’s performance from yesterday, too. The only time he talked about necessary and proper issues it was in the context of the argument “all previous commerce clause cases regulated pre-existing economic activity among people who were already participating in markets; the mandate creates new commerce instead of regulating existing commerce by forcing people into a market they otherwise would not be a part of; therefore, the mandate can’t be a necessary and proper part of a commerce clause action.” That’s malarky but I can’t really see how that is rebutted by “the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate.”

    What am I missing? Which argument is actually undermined when Clement agrees that the ACA depends on the individual mandate in order to work?

    • Scott Lemieux says:

      The preceding was a parade of nonsense, obviously.

      Which is my point. Clement’s Tuesday argument survives only if 1)McCulloch has been overruled, or 2)the federal regulation of health care is itself unconstitutional. To make a bare assertion that something necessary to a constitutional regulatory scheme can still me unconstitutional even if it violates no other provision doesn’t actually make any sense. It’s substantive due process through the back door.

      • catclub says:

        Just to third that:

        Here is a set of regulations of commerce.
        One part of said regulations is a mandate.

        Clement argued yesterday:
        “But the mandate is unconstitutional because it does not satisfy the commerce clause.”

        Clement argues today:
        “because the mandate, which is intrinsic to the regulations of commerce, is unconstitutional, all the rest is unconstitutional as well.”

        Does that describe it?

  7. T. Paine says:

    I’m all for making insurance companies operate at a loss!

    • Honorable ......BOB says:

      I’m all for making insurance companies operate at a loss!

      Why not…the federal government does it all the time!

  8. wengler says:

    This three-day debate is just a showpiece for the amount of power the Supreme Court wishes to claim for itself in the lawmaking process. It appears that they are happy to let the Executive keep in the extrajudicial killing business as long as the Supreme Court is in the legislative business.

    The Congress? Well, they can’t get anything done and they are more than willing to give away power to both the President and the courts, because they aren’t willing to solve nearly any issue on the table.

    This is a very much a demonstration about both the government not working and not able to meet the needs of people it claims to represent. Since the Supreme Court gets nothing out of letting the ACA stand unchanged, I can only assume that this whole spectacle is specifically designed to show the little people just how much we need these 9 to protect us from our baser desire of universal health coverage.

    • joe from Lowell says:

      extrajudicial killing business

      Also known as “fighting wars declared by Congress.”

      Imagine, the Supreme Court thinks that the military gets to shoot at people in wars!

      • timb says:

        Joe, don’t start. You absolutely believe Congress granted President Santorum the right to kill Americans overseas with no oversight from anyone?

        I don’t want to —-again—- read your justifications for the Alawki killing, but let’s think of what Eric Holder just said: American citizens are entitled to due process, and due process is served if the President and a secret cabal of advisers serve as judge, jury, and executioner….oh, and if a few extra people die in the attack, then ya gotta break a few eggs to win the “War on Terror” omelet.

        And, it’s true, a Court which chooses not to get involved in that process, but seeks to overturn a year long compromise bill while acknowledging Congress CAN do Medicare is a fcuked up institution.

      • wengler says:

        Answer: Yemen, Pakistan and Somalia.

        Question: Name 3 places where Congress hasn’t declared war.

        • Murc says:

          I actually chalk this up as another one of those areas where Congress fucked up.

          I’ve reluctantly come to the conclusion that Congress did indeed basically grant the Executive a blank check with the AUMF. It was a declaration of a vast theatreless forever-war against an amorphous criminal syndicate.

          They were of course wrong to do so, and both Bush and Obama have been wrong to latch onto the power grant they were given with gleeful abandon, but that doesn’t actually make what happened illegal.

          The exception I make here is Libya. THAT was a violation of the War Powers Act.

          • wengler says:

            An AUMF doesn’t fulfill Congress’s Constitutional obligation to declare war in the first place. Also under the Constitution it is impossible for Congress to give the President a blank check because they appropriate the money for the war machine in the first place.

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