Health Care and Federalism: A Response to Professor Charles Fried

I have received a significant number of emails after my earlier stated views on the national health care legislation were raised in the hearings this week before the United States Senate Committee on the Judiciary. Unfortunately, I am plowed under this week in litigation, but I wanted to offer a brief response to Harvard Law Professor and former Reagan Solicitor General Charles Fried who disagreed with my views on the danger to federalism.

Senator Cornyn asked Fried (and later the other witnesses) the same question:

But I just want to ask whether you agree — let me ask Professor Fried this question — Jonathan Turley, a law professor who testifies occasionally here in — before us, said that if the Supreme Court upholds the individual mandate, it’s hard to see what’s left of federalism.

Fried disagreed with my conclusion. His overall position is stated as follows:

I come here not as a partisan for this act. I think there are lots of problems with it. I’m not sure it’s good policy. I’m not sure it’s going to make the country any better. But I am quite sure that the health care mandate is constitutional.

I have my doubts about the part that Senator Grassley mentioned with the Medicare — Medicaid compulsion on the states. That’s something I worry about.

But the health care mandate I think really is — I wouldn’t have said a no-brainer, but I mustn’t with such intelligent brains going the other way.

Clearly, insurance is commerce. It’s — that was held by the Supreme Court in 1944. There was a time when the Supreme Court didn’t think it was commerce. But it has been ever since. And if you look at the mountain of legislation, most noticeably the ERISA legislation, you see that the Congress and the courts obviously think insurance is commerce.

And health care — surely, health care insurance surely is commerce, insuring as it does something like 18 percent of the gross national product.

Now if that’s so — if health care insurance is commerce, then does Congress have the right to regulate health care insurance? Of course it does.

And my authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who in 1824, in Gibbons v. Ogden, said regarding commerce’s — Congress’ commerce power, “What is this power? It is the power to regulate.” That is, to prescribe the rule by which commerce is governed.

To my mind that is the end of the story — the constitutional basis for the mandate. The mandate is a rule. More accurately, part of a system of rules by which commerce is to be governed, to quote Chief Justice Marshall.

And if that weren’t enough for you, though it is enough for me, you go back to Marshall in 1819 in McCulloch and Maryland, where he said, “The powers given to the government imply the ordinary means of execution. The government, which has a right to do an act,” surely to regulate health insurance, “and has imposed on it the duty of performing that act, must according to the dictates of reason be allowed to select the means.”

And that is the necessary and proper clause.

And he ends by saying, “Let the end be legitimate,” — that is to say the regulation of health insurance. “Let it be within the scope of the Constitution,” ERISA, “and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution are constitutional.”

Well, that to me is the end of the story. And I think that one thing about Judge Vinson’s opinion where he said, “If we strike down the mandate, everything else goes,” shows as well as anything could that the mandate is necessary to the accomplishment of that — of the regulation of health insurance.

But is it proper?

Well, there is I think an intellectual confusion here. Something is necessary — this is clearly necessary. It is improper only if it bumps up against some specific — some specific prohibition in the Constitution. And the only prohibitions I can think of that this bumps up against — the liberty clauses of the Fifth and Fourteenth Amendment. And if that’s so, then not only is Obamacare unconstitutional, but then so is Romneycare in Massachusetts. And I think that is an example of an argument that proves too much.

First, the reference to Vinson seems a bit forced. The fact that Judge Vinson found the entire statute to be unconstitutional due to the importance of the individual mandate is hardly convincing support on the constitutional question. I have discussed the severability issue in a column this week. Clearly an unconstitutional provision can also be central to a federal scheme. The centrality or the importance of the provision cannot establish its constitutionality or the matter becomes hopelessly circular. The individual mandate was necessary to generate funding for the program as a whole by requiring low-cost young people to pay into the system. The fact that this revenue stream is essential does not mean that the assertion of the federal government over these individuals is constitutional. For example, if Congress required all minorities to pay twice the amount of non-minority, the added revenue might be essential to the sustainability of the program, but it would still be clearly unconstitutional. Professor Fried seems to be arguing that, if a provision is essential to a federal scheme, it strongly suggests that it is constitutional because the federal government needs it to achieve these goals. That would be a rather maddening test since allows the ends to swallow the means for the purpose of constitutional review. The fact that the federal government has a legitimate interest in health care reform does not mean that any means is permissible in achieving that goal — so long as Congress makes it central to its legislative scheme.

Fried’s use of precedent on the inherent power of Congress to regulate health care is certainly a compelling and may ultimately prevail in the Supreme Court. However, for those concerned over the implications for federalism, it proves too much. “Let the end be legitimate . . . Let it be within the scope of the Constitution . . . and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution are constitutional.” That is precisely the concern raised as to the health care legislation: whether this is an appropriate mean “consistent with the letter and spirit of the Constitution.”

To say that cases like Gibbons allows Congress “to prescribe the rule by which commerce is governed” would remove anything to federal jurisdiction so long as it could be linked to commerce. That is certainly the message of Wickard, which we have previously discussed. However, many of us have long been troubled by the sweep of Wickard.

While Fried was asked about about any remaining limits on federal authority if this passes muster, he fails to offer any such limits. Instead, he suggests that any regulations of a matter touching commerce is within Congress’ limited and enumerated powers. That would leave no limits. Some of us simply do not believe that the Framers would have created a system of such limited powers and then allowed unlimited power on any decision that can be defined as affecting commerce. The power “to regulate commerce . . . . among the several states” was meant to prevent states from creating barriers to other states by leaving interstate commerce to the federal government. However, this interpretation would allow the government to sweep within its purview even acts of omission that frustrate its national goals. To say that this is a “no brainer” is to ignore the facially different type of claim raised in this case.

I have stated before that I believe that the cases favor Congress in the lower courts, but that there is strong precedent on both sides. Obviously, both challenging the law are emphasizing United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). The Court stated in Morrison that it would not accept “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.” Id. at 617. In Lopez, the Court required more than what Professor Fried appears to demand in the nexus to support federal authority. In striking down the Gun-Free School Zones Act, the Court found that the claim could not be sustained “under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in [*37] the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. Again, the question as stated by Chief Justice Marshall is whether this claim conforms with “the letter and spirit of the constitution.”

As I have stated, people of good faith can disagree on these points and the matter cannot be fully resolved until put before the Supreme Court. Most people anticipate that Justice Kennedy will be the swing vote on a close decision. In both Lopez and Morrison, Kennedy voted to strike down the laws. However, in his concurrence, Kennedy did note that the history and language of the Constitution “counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power.” Moreover, Kennedy did vote to uphold the Controlled Substances Act in Gonzalez v. Raich, 545 U.S. 1 (2005). He agreed that, absent the authority, Congress could not regulate drugs. I am frankly not convinced that the same nexus can be established here.

There is also some question over Justice Scalia’s view since he also concurred in Raich. In that decision, Scalia noted that “[u]nlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. . . . Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.” However, he also found that “[t]his is not a power that threatens to obliterate the line between “what is truly national and what is truly local emphasis added.”

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope. I respect Professor Fried’s views (and those of many of my friends on the other side of this debate) but I find this a much closer question — the answer of which could leave little left for those who believe in strong federalism guarantees in the Constitution.

Jonathan Turley

93 thoughts on “Health Care and Federalism: A Response to Professor Charles Fried

  1. The video I posted on the “pinto”thread where Mr Fried was talking about congress and commerce at the end of the video he says”if Obamacare is unconstitutional so is Romney care”

  2. On the most basic level…

    Health care reform can only be achieved via reform of medicare and funding through the general tax rolls. Attempting to force the issue via ‘creative constitutional thinking,’ as democrats have, leads to disaster.

    With that said, I don’t see where congress was empowered to force citizens to engage in a certain form of commerce via the commerce clause simply by virtue of the existence of the citizen.

    While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.

    A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.

    If the mere existence of a living citizen is enough to engage the commerce power, then there is absolutely no line between the individual and the state; voiding the social compact, as restated in the Declaration, as illusory and reversing EVERY SINGLE PRINCIPLE OF OUR REPUBLIC through ignoring the most fundamental order of operations — Rights confer power; not vice versa.

  3. Wow, I have to admit that I found Prof. Fried’s explanation convincing, but I also want to admit up front that I am in favor of a national health insurance plan. Maybe I missed something, but doesn’t the drain on society if people are uninsured have a significant impact on commerce? When they are not insured or can’t be under current insurance companies rules, don’t they negatively impact commerce by forcing hospitals and doctors to treat them for no charge? Isn’t this a strong enough nexus to commerce to provide a basis for accepting the individual mandate? I do want to say that I am not the biggest fan of the individual mandate because I would have preferred a Medicare for all plan or a public option. If this individual mandate and the health care law is overturned, doesn’t that put a question mark over Medicare and Medicaid’s constitutionality? Doesn’t this put any National requirement or regulation at risk if the individual mandate is thrown out if the issue at hand is not prescribed in the Constitution specifically? Is it me or do the Morrison and Lopez cases seem less economic and more criminal in nature and therefore not a good example for proving that an individual mandate to buy insurance to save all insurance payers in the end, is a violation of Federalism? The Holy cow, my head is spinning at this point. I may be getting in over my head!

  4. “While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.

    A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.” (Bob,Esq.)

    =======================================================

    Now, in all honesty, what Bob,Esq. wrote and the words he chose to convey the thought make a lot of sense to me.

    If he is wrong … how is he wrong? … because his reasoning seems straight forward.

  5. Bob, Esq.,
    I missed your posting because I was in the middle of my prior one. I am not sure I agree with the auto insurance example. Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives? I would view that health insurance is even more important for society and has a greater impact (no pun intended!) than auto insurance on commerce. While I agree with you that I would prefer a medicare for all type system, I don’t think our current political culture will make that a likely alternative. Is there any impact that without this plan the 45,000 people(accoridng to the Harvard study I believe) who die because they don’t have coverage have no hope?

  6. Bob,

    “So he says tell me I’m wrong…and I say I can’t baby; cause you’re not.” – The Mad Bomber What Bombs at Midnight

    “It’s deja vu all over again.” – Yogi Berra

  7. Rafflaw: “Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives?”

    Not needing the car is part and parcel with the necessary element of CHOICE regarding whether or not to engage in commerce.

    Life does not necessitate commerce. While I’m alive, I choose whether or not to engage in commerce. If I do not engage in commerce, then the commerce clause is inapplicable and thus holds no power over me. Accordingly, the commerce clause cannot be used to treat people effectively as widgets to do whatever congress commands; simply by virtue of the citizen exercising his right to live and breathe.

    Ready? We fought against countries that were predicated upon political philosophies like the foregoing. Remember?

    Finally, the measure of importance of a particular agenda IN NO WAY AMENDS THE CONSTITUTION so as to carry it out.

    Living is not a form of commerce. Thus ends the commerce clause analysis.

  8. “While Fried was asked about my view that there are no remaining limits on federal authority if this passes muster, he fails to offer any such limits.”

    It is really an exaggeration to say there are “no remaining limits on federal authority.”

    The CRS Report analyzed possible limits of substantive due process, equal protection, takings clause, tenth amendment and religious exemptions.

    The exercise of commerce power to regulate and adjust the burdens and benefits of economic activity is itself subject to rational basis review.

    The Constitution itself provides for representative democratic processes of elections and subsequent legislation to limit the excess of authority.

    So there are limitations. JT just does not mention them.

    These constitutional law professors see themselves at the center of the world. Of course they want lawsuits. Of course they want to run the the Supreme Court. Of course they want judicial fiats striking down entire laws, since they provide the theories for those decrees.

    Let the electoral and legislative process work its way.

    If someone is mandated in 2014, let the lawsuit begin then.

  9. Buddha,

    Thanks. I have a hard time reading the commerce clause analysis regarding this subject as I don’t see living as a form of commerce. How about you?

  10. Bob,
    maybe I am missing something, it wouldn’t be the firs time, but don’t I have to make a choice to see a doctor at some time or a hosptial and if I choose to not get insurance, doesn’t that impact commerce because the rest of us are paying for it in the overhead in our insurance payments and the doctors and hospitals have to give their services for free if the government doesn’t subsidize that care? Their living and breathing isn’t what costs the rest of us in society, it is when they need medical help and can’t pay for it because they don’t have insurance and the costs are huge.
    I may be shortsighted, but I don’t see an insurance mandate to be an attack on the American way, but maybe it is the incrementalism that was mentioned earlier.

  11. Bob,

    Living is most certainly not commerce. There are legal ways to legislate universal health care although this surely is neither UHC nor is this the appropriate approach via the Commerce Clause. As you’ve intimated elsewhere, the appropriate approach is regulation of business practices and/or nationalization of that business market segment, but as a form of individual mandate based on the Commerce Clause? It’s simply tyranny.

  12. Rafflaw: “Their living and breathing isn’t what costs the rest of us in society, it is when they need medical help and can’t pay for it because they don’t have insurance and the costs are huge.”

    But you’re triggering the commerce clause solely because they’re living and breathing. Take a step back and think. Once simple living and breathing becomes enough of a condition precedent to engage the commerce power, then tell me sir, how can you tell me with a straight face that the Federal government is a system of SPECIFICALLY ENUMERATED POWERS? You can’t. You’ve completely inverted the social compact and the republic.

    The Federal government’s lack of planning is not the citizen’s emergency.

    The ONLY constitutional way to achieve health care reform is through the general tax rolls.

    Why?

    First of all, there’s all that reasoning behind that old chestnut that there’s no such thing as tax payer standing. The rights of the individual, as tax payer, are not infringed if the Fed chooses to spend a greater portion of the tax rolls on health care reform.

    See the difference between that and forcing a citizen to engage in a particular form of commerce simply by virtue that the citizen happens to be living and breathing comrade?

  13. ok, I’m not a lawyer….I’m swimming in deep water here, but I AM a citizen who pays taxes and I #1 would argue that it is the majority by leaps and bounds that NEED a car to engage in commerce and #2 “A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.” (Bob,Esq.)”

    If healthcare is a right, like the right to vote, the right to freedom of religeon, the right of free speech, the right to own property, the right to representation, then the argument is not one of commerce is it? And I believe that healthcare is a right….if it is commerce, that means we are ALL chattel and must be forced to the will of business rather than having businesses regulated to ensure that they are safe and not harmful in their manner of execution…

    that’s my non-party line and I’m stickin to it…

  14. “While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.”

    “A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.” (Bob,Esq.)

    “Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives? I would view that health insurance is even more important for society and has a greater impact (no pun intended!) than auto insurance on commerce.” (rafflaw)

    I am not a lawyer. As a family physician, I appreciate the response of rafflaw. In regard to what is said by Bob,Esq, would it be acceptable to say in the second paragraph that “A health insurance mandate is PREDICATED ON the fact of life that we are all vulnerable human beings and will need health care as both a privilege and a right at some time in our lives? To me, the mandate simply reflects our acceptance of the reality of the need for all of us to have health care coverage as a NECESSITY, due to our humanity.

    Maybe because I am a physician, I believe that health care cannot just be seen as a product that we buy if we need it. The reality of life is that we may not find out ahead of time when we will need health care insurance coverage. To me, it makes common sense that we would all want to have health insurance coverage for our own good and for the common good.

    Sincerely, Rosemary Eileen McHugh, M.D., M.B.A., Chicago, Illinois

  15. Dr. McHugh,

    Would you – as a practicing physician – be opposed to maximizing the efficiencies of the insurance/risk pool model by 1) streamlining billing to a single payment/single paperwork stream, 2) maximizing coverage by utilizing the largest possible risk pool to lower costs for all treatment, and 3) maximizing dollars spent on coverage over executive compensation and shareholder dividends by operating the pool as a not-for-profit endeavor held as a public trust?

  16. Bob,
    The living and breathing isn’t what is triggering the commerce clause, it is the fact that when they are having trouble living and breathing that they trigger it when they seek care. I don’t see that aspect being the government’s lack of planning, but the individual’s lack of planning or inability to plan for it because of the monumental cost. I would agree that it would make more sense to take it out of the tax rolls, but the politics of that are not possible and then you would have cries of Socialism from the Right and some on the Left. And the effect on society would be the same. Citizens would be paying for medical coverage that they don’t want through their taxes.
    We may have to agree to disagree on this one Bob.

  17. Buddha: “As you’ve intimated elsewhere, the appropriate approach is regulation of business practices and/or nationalization of that business market segment”

    Buddha,

    I think there’s one more level of analysis to be considered on the issue of medicare reform and that’s maximizing the rate of return on investigating and prosecuting fraud and abuse.

    And there’s more money to be had by ceasing to engage in wars of choice that fail to serve the specific purpose for which they were authorized in the first place.

    And we could also make minor percentage decreases in foreign aid abroad…

    Whatever.

  18. raff,

    But you have to ask yourself where the “monumental costs” come from.

    Inefficiency in implementation under the for-profit model utilizing fractionated risk pools is the answer. Since business operating out of profit motive is creating the problem, using the CC to regulate that business practice impinges less upon individual liberty than mandating the purchase of coverage from a select group of providers. Corporations are not real people. It is far less odious to personal freedom to limit them and their “executives” than to penalize all citizenry for their (the health insurance companies) profit.

  19. Buddha,
    I understand where those costs come from, but how do you get beyond the cries of woe when the government nationalizes an entire industry? I agree with you that corporations are not “real” people, but the Supremes seem to think otherwise. At least when it comes to election funding.

  20. Dr Rosemary Eileen McHugh: “A health insurance mandate is PREDICATED ON the fact of life that we are all vulnerable human beings and will need health care as both a privilege and a right at some time in our lives?”

    Dr. McHugh,

    It is not the ends that are problematic. The existence of the constitution does not negate the need for altruism in a just society. It’s simply a matter of getting your ducks in a row by executing such altruistic policies in a harmonious constitutional manner.

    How’s this for a law to medicine comparison…

    While prudent medical practice would require examining a patient’s throat, there are both acceptable and unacceptable ways of doing so.

    To wit:

    Forcing citizens to engage in a form of particular commerce by virtue of simply living and breathing is as legally and logically appealing as using an un-sterilized speculum to examine a patient’s throat.

    Again, the ONLY constitutional way to achieve health care reform is through the general tax rolls and revision of medicare and medicaid.

    My father was a family doctor, and if he were alive and advised on this matter by me, he would say that the people who drafted this monstrosity suffered from a constitutional form of ano-olecranon-agnosia.

  21. “ok, I’m not a lawyer….I’m swimming in deep water here, …” (Woosty’s still a Cat) … you said a mouthful and I’m floundering right next to you.

    But that is one of the things I most enjoy about this blog.

    There are many fine legal minds present and often they talk to each other in a shorthand that whizzes right over my head but … ask a sincere question and they will, in a real generosity of spirit and maybe love of teaching, dumb it down a bit and patiently abide with the lack of knowledge/insight striving to educate.

    I have been reading about the Commerce Clause for months and months then all of a sudden Bob,Esq. words lit a bulb and I got it. These are words he’s said many times before in one form or another but today, for some reason, they clicked for me.

    My only explanation for the lack of speedy understanding on my part is that as a musician my forte is emotion and the expression/interpretation there of. Talk about healthcare for all and I immediately go the emotional route rather than the logical process of analyzing what is and is not the best legal manner to make adequate coverage properly available for all.

  22. “Would you – as a practicing physician – be opposed to maximizing the efficiencies of the insurance/risk pool model by 1) streamlining billing to a single payment/single paperwork stream, 2) maximizing coverage by utilizing the largest possible risk pool to lower costs for all treatment, and 3) maximizing dollars spent on coverage over executive compensation and shareholder dividends by operating the pool as a not-for-profit endeavor held as a public trust?” (Buddha)

    In answer to Buddha, I would be supportive of all of your 3 proposals. After having worked for health care systems that have changed from being not-for-profit to being for-profit entities, I have come to believe that it is unethical to have for-profit insurance companies in health care.

    Health care deals in protecting and healing human lives. To me, it is wrong to have any profit go to shareholders or to CEOs instead of going back into the care of patients. It is also wrong-headed to allow health insurers to make a profit by denial of care. As a family physician, I am fully in support of health care reform and the new health care law.

    Sincerely, Rosemary Eileen McHugh, M.D., M.B.A., Chicago, Illinois

  23. raff,

    Start with education. Most consumers have no idea how insurance works as a concept let alone a business. If you know how insurance operates – and I mean really understand the idea of a risk pool?

    The rest falls into place as a matter of common sense and logic.

    True, there will always be a segment of the population devoid of common sense and resistant to logic, but we don’t need to convince everybody.

    Just enough to force the Congressional hand out of the health care insurance industry graft bucket.

  24. “It is not the ends that are problematic. The existence of the constitution does not negate the need for altruism in a just society. It’s simply a matter of getting your ducks in a row by executing such altruistic policies in a harmonious constitutional manner.” (Bob,Esq)

    To Bob,Esq.

    By the above statement, its seems to me that you are supportive of the health care reform law, and see that there are ways that it could be improved.

    I happened to see some of the discussion on c-span yesterday, where Senator Durbin, and other senators, were questioning constitutional experts, in regard to the health care reform law. Three of the five experts did support the individual mandate, as being constitutional, in the health care reform law.

    If it can be accepted, by some experts in constitutional law, that the universal mandate is constitutional, and that it is necessary to balance the risk pools, then, can we move on, and look at areas in the law that may need tweaking?

    Sincerely, Rosemary Eileen McHugh, M.D., M.B.A., Chicago, Illinois

  25. Buddha,
    I think that the segment of the population that is devoid of commone sense and logic are the ones who control the “base” that will scream bloody murder no matter which course is taken. That education process could take much longer than any of us would like. And getting Congress to disregard the money and lobbyists from the insurance industry is something else. To be honest, I think the insurance companies will make more money under the current reform plan because of the 35-40 million new customers, even with the new rules. They like the right wing base are basically working against their own best economic interests. I do like the fact that most here agree that the need is there to require a national plan of some sort.

  26. Ms.B:

    I second and third that if need be:

    “There are many fine legal minds present and often they talk to each other in a shorthand that whizzes right over my head but … ask a sincere question and they will, in a real generosity of spirit and maybe love of teaching, dumb it down a bit and patiently abide with the lack of knowledge/insight striving to educate”

  27. eniobob and Blouise,
    I also agree that the legal minds here amaze me, but when they throw in terms like “ano-olecranon-agnosia” that is going too far! :)

  28. Buddah, To get your brand of healthcare which is preferable we would need to have campaign finance reform. Since that is nowhere on the horizon, we have to work with what we have. This legislation is worth saving because it deals with caps and pre-existing conditions among other things.

  29. rafflaw
    1, February 3, 2011 at 2:55 pm
    eniobob and Blouise,
    I also agree that the legal minds here amaze me, but when they throw in terms like “ano-olecranon-agnosia” that is going too far! :)

    =========================================================

    Yeah, well sometimes they can’t help themselves :) … I could hit a high D and shatter their water carafes … :evil:

  30. McHugh: “If it can be accepted, by some experts in constitutional law, that the universal mandate is constitutional, and that it is necessary to balance the risk pools, then, can we move on, and look at areas in the law that may need tweaking?”

    Dr. McHugh,

    The best way to balance the risk pools is to combine them into one via the single payer system. And the only way that’s going to work is through the general tax rolls via medicare and medicaid reforms; not by stretching the commerce clause so far as to void the very existence of a federal government with specifically enumerated powers.

    I’m all in favor of health care reform. Again, the problem is not the ends, but the scorched constitution-policy-means by which the agenda is executed. The Fed has plenty of power and options to promulgate true health care reform legislation; it simply cannot toss the constitution out the window to do so because it’s too lazy to get it right.

  31. In Re: ano-olecranon-agnosia.

    My father used this word to describe the hospital administrative staff.

    Let’s break it down.

    ano: ass

    olecranon: elbow

    agnosia: without knowledge

    ano-olecranon-agnosia: Doesn’t know ass from elbow.

  32. Ms.B & raff:

    The payoff is when those words fly over your head and you look them up and get into a casual conversation with your friends and slide one of those words into the conversation,they look at you and say “you,re so heavy and deep” LOL!!!

  33. rafflaw,

    See … this is what they make me do … whet my curiosity and then I have to go educate myself so I googled the phrase and spent the next five minutes chuckling … this is too good not to share:

    “BTW, I’m told ‘Ano-olecranon-agnosia’ is medical shorthand used by some doctors while refering to hospital administrators.

    ānō — ass

    olecranon — elbow (the pointy part we refer to in speech)

    agnosia — without knowledge

    Example: Both George W. Bush and Sara Palin suffer from ano-olecranon agnosia.

    Translation: Both George W. Bush and Sarah Palin don’t know their ass from their elbow.”

    http://jonathanturley.org/2008/09/02/palin-iraq-war-is-part-of-gods-plan/#comment-23199

  34. There see … I spent all that time researching and Bob,Esq posted it before I did.

    Drat … how is the student ever to impress the teacher … I ask you … I’m going to get a drink!

  35. eniobob
    1, February 3, 2011 at 3:18 pm
    Ms.B & raff:

    The payoff is when those words fly over your head and you look them up and get into a casual conversation with your friends and slide one of those words into the conversation,they look at you and say “you,re so heavy and deep” LOL!!!

    ======================================================

    You have much better friends than I .. I try that and they throw bits of dinner rolls at me!

  36. Bob,Esq.
    1, February 3, 2011 at 3:25 pm
    Blouise,

    It’s kind of scary not remembering what you’ve written three years ago.

    =================================================

    Just say you are impressed and I won’t over indulge!

  37. Blouise,

    Your penchant to react from emotion is more than compensated by your wisdom; you have no need to impress anyone.

    Nonetheless, I was both startled and impressed by your find.

    Okay?

  38. Bob,Esq. 1, February 3, 2011 at 12:45 pm

    Rafflaw: “Not everyone needs to have a car, but doesn’t everyone need to see a doctor at some point in their lives?”

    Not needing the car is part and parcel with the necessary element of CHOICE regarding whether or not to engage in commerce.

    Life does not necessitate commerce. While I’m alive, I choose whether or not to engage in commerce. If I do not engage in commerce, then the commerce clause is inapplicable and thus holds no power over me.
    ———————————

    Overall, I think that Bob is doing a great job presenting his position.

    But here’s where I think his strong logic turns against his position: In the US, if you collapse on the sidewalk, and loose consciousness, you WILL be taken to a hospital and treated WITHOUT MAKING A CHOICE to receive that treatment. As far as I know, it is nearly impossible to live in our society and completely exclude yourself from the “commerce” of healthcare. As a result, the uninsured “feeloaders”* cost the rest of us a lot of money and we have no CHOICE in that. (* most of these “freeloaders” can’t afford insurance, but a few go this route by choice – I don’t mean this term to denigrate the millions who want insurance but currently can’t afford it.)

    Here’s another related scenario: you may seek to live your life in a hybrid of the philosophies of Jenny McCarthy and Ted Kaczynski – based on this, you refuse to engage in the “commerce” of getting any vaccinations. As a result, you contract a deadly, communicable disease. While attending a discussion group for fans of Ms. McCarthy, you pass that disease to an un-vaccinated child and an adult who didn’t know that his vaccination was no longer effective. You return to your cabin in the woods and drop dead – no real healthcare cost to the rest of us. BUT the sick kid and adult get taken to a hospital and that costs everyone a boatload of cash. You may have made a CHOICE not to engage in “healthcare commerce”, but the impact of your actions cost the rest of us money unnecessarily.

    Whether we like it or not, our individual health impacts the community as a whole – the requirement in this law to have insurance is a matter of people taking personal responsibility for their impact on the people around them. Because it is de facto impossible to avoid any medical treatment in most circumstances (other than natural end of life), it is incumbent on all of us to take personal responsibility and either obtain insurance or pay into the common kitty to cover at least part of how we impact everyone else.

    Does that mean that the mandate meets the standards of the current understanding(s) and application of the US Constitution? I don’t know. But it’s certainly in the ballpark of meeting the basic standards of balancing our rights with our responsibilities as human beings in our society, and my sense is that the Constitution (and its interpretation) generally derive from this balancing act.

  39. I’ve been reading through the thread, but have not commented because I’m not as sharp as most here when it comes to this issue. Questions asked and answered in terms that my remaining brain cells can grasp. Thank you.

    To all here, I raise my glass and say, “Sláinte!”

  40. Tomdarch,
    You said it better than I did! And you worked Jenny McCarthy into your example, as well.
    Stamford, I will second your toast!
    Blouise and eniobob, I knew the phrase had something about the ass, but I was afraid of what I might find if I looked it up!!

  41. tomdarch: “As far as I know, it is nearly impossible to live in our society and completely exclude yourself from the “commerce” of healthcare. As a result, the uninsured “feeloaders”* cost the rest of us a lot of money and we have no CHOICE in that.”

    tomdarch,

    You’re ignoring the very purpose the founders created a federal government based on SPECIFICALLY ENUMERATED POWERS. Just like a man’s got to know his limitations, American citizens got to know the limitations of federal power as set forth by the founders. You, like others, in pursuit of their goal, have chosen to re-define commerce into meaninglessness and by doing so leave the federal government with UNLIMITED POWER.

    Simply because health care is a form of commerce, it does not follow that the Fed has the power to compensate for free-loaders by re-defining commerce so as to include citizens simply living and breathing who may need health care in the future.

    Did you know that every living European is a descendant of Charlemagne? Your willingness to stretch the commerce clause as far as you propose, i.e. without limit, would suggest that you would use the same form of reasoning to conclude that all Europeans engaged in intercourse are actually incestuous.

    As J. Turley said: “While Fried was asked about my about any remaining limits on federal authority if this passes muster, he fails to offer any such limits. Instead, he suggests that any regulations of a matter touching commerce is within Congress’ limited and enumerated powers. That would leave no limits. Some of us simply do not believe that the Framers would have created a system of such limited powers and then allowed unlimited power on any decision that can be defined as affecting commerce.”

    Once again, the Fed’s lack of planning is not the citizen’s emergency. While health care reform is needed, the fed is not empowered to treat the constitution like a urinal puck to carry out that reform.

    The law is not a search for truth but procedure. Procedure and structure is what keeps our government afloat. We don’t ignore the limits of our government simply because we ‘feel like it.’ Thus the reason we set guilty people free when procedure is ignored; because the system is paramount!

    Simply because you can’t use the commerce clause to remove all limits on federal power to achieve health care reform, it does not follow that the goal is unachievable. Reformation of medicare and medicaid via funds from the general tax rolls will achieve the same goal; in a manner harmonious with the constitution.

  42. Blouise
    1, February 3, 2011 at 2:06 pm
    ——-
    what you said….me too tho I know I don’t understand all the legalese and the commerce clause..I’m half guessing….but as a Nurse I know something about the delivery of healthcare and I’ve seen much like Dr.McHugh [ “in answer to Buddha, I would be supportive of all of your 3 proposals. After having worked for health care systems that have changed from being not-for-profit to being for-profit entities, I have come to believe that it is unethical to have for-profit insurance companies in health care.”]and I agree wholeheartedly. I have watched an entity that operated as a quality driven service erode into nothing more than a shell and a shill for corporations to siphon from. Those who have a right to healthcare because they have insurance are cheated because the delivery system has been neglected and the people who are actually doing the work are overworked and have been in negative gain territory for years. I am a nurse and I can’t afford healthcare on my salary….which btw is maybe….maybe around the same as when I first graduated from nursing school in 1985. Not to mention…people forget, the hospital infrastructure was not built by for profit corporations….they were built by communities with support of federal and state grants….and then ‘taken over’.

    And yes, I find it horribly difficult to remain unemotional about this….

  43. Perhaps a look at the exceptions to the mandate would give us a clearer idea about whether it should be considered constitutional under the commerce or general welfare clause.

    Immediately we get into religious sects that abjure certain medical procedures and, as tomdarch mentions, vaccinations for school children.

    If hospitals were not made to eat the costs, or pass them on to insured patients, for treating those affected by an excepted non-insured individual, that individual’s right (as opposed to responsibility) to refuse a mandate might become clearer.

  44. Bob,Esq. and Blouise-

    I have never had ano-olecranon-agnosia, but my doctor recently told me that I have an advanced case of ano-excavation-agnosia.

  45. Bob,Esq.,

    In my mind there are many rooms and I have just moved you into the mahogany paneled Scholar and Gentleman library where you may sink into a well used and comfortable red leather reading chair placed at a round table and greet your fellow guests mespo, Buddha, and Frank Mascagni III in sipping port (Buddha’s sipping a minted iced tea), smoking smelly illegal cigars, and arguing sports. Enjoy!

    I keep AY in a special friends room all to myself ;)

  46. HenMan
    1, February 3, 2011 at 6:43 pm
    Bob,Esq. and Blouise-

    I have never had ano-olecranon-agnosia, but my doctor recently told me that I have an advanced case of ano-excavation-agnosia.

    ==================================================

    If only you would have gone for just one of those random drug tests … I weep for what might have been …

  47. Blouise:I could hit a high D and shatter their water carafes …
    ————————–

    Oh now I AM envious….please do!

  48. Swarthmore mom:

    To add to your thunder:
    “WASHINGTON — The Obama administration won a victory Thursday in the winding legal debate surrounding the president’s signature health care law, as a federal judge in Mississippi threw out a suit challenging the constitutionality of the bill.”

  49. Woosty’s still a Cat
    1, February 3, 2011 at 7:32 pm
    Blouise:I could hit a high D and shatter their water carafes …
    ————————–

    Oh now I AM envious….please do!

    ====================================================

    Truth be told, I can’t do it anymore … age plays havoc with the vocal cords but … I wonder if a recording would do …. hmmm … I’ll have to talk to Nal.

  50. Health insurance is a completely different regulatory issue than auto insurance. If auto insurers refused to pay claims it would be known right away.

    With medical insurers there are many opportunities to imply that you are offering long term insurance but then get out of it. One way is simply to pull out of a state after a group ages.

    I think state insurance commissioners are totally incapable of regulating insurance companies. As an example of this, I followed a company in Colorado called TIC Insurance because they were itemized on some $29 K of attorney fee shifting bills I was ordered to pay on the basis that they insured attorneys and that attorneys have immunity in their role as advocates. I found that the State of Colorado listed them as active and approved to sell health insurance in Colorado. I google mapped the address and found that it was a single family home in Texas. Their only listed phone number was a residential cell phone.

  51. RE: Blouise, February 3, 2011 at 12:20 pm

    [begin quote]
    A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce.
    [end quote]

    ################################

    I find, in every situation, I have a four way choice, I may approach the situation, may withdraw from the situation, may stay where I am, or may withdraw from all situations.

    For those who believe in fighting, the four choices become the classic fight, fight, freeze, and finish.

    Finish is always available, and so choice can never be taken away from a living person.

    In a world of cruel reciprocal retaliation, to finish is to embrace ultimate mercy.

    Every living person inescapably retains the choice of escape.

    There is more than one way to escape.

    One may escape by dying.

    Or else.

    I always escape the world of cruel reciprocal retaliation by choosing to never retaliate.

    I live in a world those who believe in cruel reciprocal retaliation evidently are incapable of believing really exists.

    Whether such a world really exists is now moot. I am here, and that world therefore exists here, because I am here.

  52. Blouise: “Truth be told, I can’t do it anymore … age plays havoc with the vocal cords but … I wonder if a recording would do ….”

    **** It will if it’s Memorex:

    :-)

  53. Swarthmore Mom and eniobob, Thanks for the link to the case that was dismissed in Mississippi due to standing questions. The judge was appointed by George W. Bush. It will be interesting to see what happens when/if Plaintiffs refile.

  54. J. Brian Harris, Ph.D., P.E.

    That was Bob,Esq’s quote … I’d like to take credit but am honor bound to give the author his due.

  55. SwM,

    Finally got the link to work … my computer has been acting up, or out

    I wonder what the Judge was trying to say at the end of the article … he confused me

  56. raff:

    From your link”There are, of course, at least 39 other errors in Vinson’s opinion, but it really tells you all you need to know about the quality of his reasoning that he saw no problem with fabricating a facially absurd claim about American history that any minimally competent lawyer could debunk in less time than it takes to brew a cup of tea.”

  57. As I understand it Fried’s comments came in response to a question from Sen. Cronyn (R-TX). Fried’s statement that the HCR law is clearly Constitutional COULDN’T have been the answer Cronyn was looking for.

  58. FWIW, I agree with Prof. Turley. Health insurers/insurance is and always has been regulated by the states. Citing ERISA is bogus. Saying that Romeycare is the constitutional equivalent of the Obamacare mandate is also bogus as Romneycare is state administered.

    We have to draw a line in the sand somewhere re the limits of the commerce clause and I agree with the Prof. that federalism means nothing when you use the commerce clause as a basis for upholding legislation which really has nothing to do with commerce per se but may affect commerce. What in this world doesn’t affect commerce?

  59. A few quick thoughts:

    The government has the power to tax you. The government has the power to provide benefits. The government can, and does, pay or contract with private parties to provide benefits. Sometimes, the government will even give individuals a choice as to which private provider to use when getting these benefits.

    The only real difference I can see between the situation I sketched out above and the mandate is a fig leaf of the government acting as a middleman. It may be that the fig leaf is constitutionally required, but to me it doesn’t necessarily make a lot of sense. The Constitution has been bent to pieces into the form it is now and the nation somehow still survives.

    Other than a brief mention by Prof. Turley, I haven’t seen much discussion about Wickard v. Filburn in this thread, and I think that might be useful to illustrate to the non-lawyers just how far the commerce clause can go. In that case, the Supreme Court held that the commerce clause can be used to regulate a farmer growing wheat, not to sell, but to use as feed for his own animals. In other words, his choice of whether or not to participate in commerce was pretty much shot to pieces. His choice not to buy wheat was irrelevant. The court wrote:

    “It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.”

    One can disagree on whether Wickard was well-reasoned, but it is still the law of the land.

    Additionally, IMHO, the concern about lost Federalism is a largely a dead issue. Federalism has pretty much been dead for a while now, and I say good riddance. The states have whatever power the Feds let them have, and no more. I think history largely shows that this is a good thing. The Southern states abused the powers that they used to have, and the Senate is problematic in part because Wyoming has as much power as California. I think our country has moved past a point where Federalism is very useful.

  60. JT writes “For example, if Congress required all minorities to pay twice the amount of non-minority, the added revenue might be essential to the sustainability of the program, but it would still be clearly unconstitutional.”

    But then he writes: “Some of us simply do not believe that the Framers would have created a system of such limited powers and then allowed unlimited power on any decision that can be defined as affecting commerce.”

    Well, it is a matter of historical fact that the Framers DID indeed allow Congress “unlimited power” to discriminate against minorities in the regulation of commerce, and in all other matters within its purview. Their Constitution had no Equal Protection Clause. It was only the later Amendments that prevent Congress from doubling the premiums of minorities.

    There was absolutely nothing in the Framers Constitution making it unconstitutional to discriminate against minorities of any kind. Under their Constitution, there was nothing banning slavery, so there was clearly nothing to stop them from doubling the premiums of minorities.

    Under the Framers Constitution, Congress could have discriminated to its heart’s content on the basis of race, previous (and present!) condition of servitude, sex, religion, national origin, sexual preference, and any other basis, in its exercise of the Commerce Power and any other power.

    It is the Constitution, as later amended, that limits the powers of Congress. So how about analyzing the Constitution as amended, instead of continually harping back to the sacred, sainted founders?

    I just don’t like this contradiction, arguing that the Framers did not create unlimited power, and then ignoring the limits that were later added. It is high time to stop this rote invocation of the Elder Gods, Cthulhu, and the Great Old Ones. Mental telepathy is as mythical as astrology, notwithstanding the Calcutta Supreme Court, so one can read the minds of the Framers to discern their intent or innermost desires. The Framers wrote some broad and far-reaching words and we are by necessity bound by the meaning of those words, not by some imagined silent understanding. They left behind some writings that are deeply embedded in their 18th Century worldview, but it is the 21st Century now, and their writings are often ambiguous and only remotely related to present issues.

    Congress has enumerated powers to tax to pay for the common welfare, to regulate commerce, and to make necessary and proper laws for executing those powers. Of course, this power is not unlimited. There must be a rational basis for the laws that are enacted. The rational basis test means that unelected judges may not substitute their own policy predilections for the judgment of the people, as voted by their elected representatives.

    To those of you who want judges to make these calls, be warned that you may disagree with their personal views. If so, you will wait a long, long time to change the law, since the federal judges all have lifetime tenure (unless they take bribes).

    Congress has an election every two years. There is more than ample constitutional authority for the health care law. If you don’t like the law, then vote for new representatives.

  61. The tea party ran on a platform that was anti-government sponsored health care. They labeled it Obamacare They won the house but they still don’t have the senate and the presidency so they are hoping republican appointed judges will give them what they want. Vince Treacy is correct in his assessment.

  62. Vince always makes good arguments, Smom.

    Plus he gets style points for mentioning the Elder Gods, Cthulhu, and the Great Old Ones.

  63. Fried absolutely missed it. He has begged the question of the extend of regulation. No doubt there is interstate commerce, but the question is whether or not the individual mandate is within the constitutional bounds of regulation. I don’t think its a close question.

  64. “It is of the essence of regulation that it lays a restraining hand on the self interest of the regulated and that advantages from the regulation commonly fall to others.”

    Wow….so does this apply to services as well as goods?

  65. Mr. Turley writes:

    “Some of us simply do not believe that the Framers would have created a system of such limited powers and then allowed unlimited power on any decision that can be defined as affecting commerce. The power “to regulate commerce . . . . among the several states” was meant to prevent states from creating barriers to other states by leaving interstate commerce to the federal government. However, this interpretation would allow the government to sweep within its purview even acts of omission that frustrate its national goals.”

    Correct. Brilliant.

  66. 2T, Bob is wrong. A social security mandate has been imposed for over 70 years, on individuals, constitutionally, and so can a health mandate, as a tax and a regulation of commerce.

    If his idiosyncratic constitutional theories go into effect, watch your Social Security, Medicare and Medicaid go down the drain, too.

    Bob says “Health care reform can only be achieved via reform of medicare and funding through the general tax rolls,” but that is just him, not the Constitution, the Courts, or recognized legal scholars.

    The Constitution does not use the term “general tax roll,” just Bob.

  67. I can accept the argument that a citizen should not be forced to utilize a private corporation by government mandate. If that is the case than there are two aspects to the problem that underlie the Constitutional consideration:

    Should every citizen have the right to receive and access to adequate health care?

    If the question above is the case, then the solution is a single payer system, that an individual can opt out of, that is not controlled by having to utilize health insurance corporations.

    Contrary to the claims of those obsessed with a mythical free market as the solution to all issues, human rights should not be decided by the arbitrary whims of the marketplace.

  68. Mike I agree!
    And this is a truly defining moment for our government….is healthcare a ‘right’ or is it something else? From my perspective, if it is anything but a ‘right’, then the manner of it’s delivery will always be arbitrary, always lacking, and always at the whim of the ‘market’ (whatever that may be at any given time…)

  69. If this case goes down at SCOTUS our president needs to examine everything he believes about what he has thought our government to be.

    Because,

    When the truth is found to be lies
    and all the joys within you dies,
    Don’t you want somebody to love?
    Don’t you need somebody to love?
    Wouldn’t love somebody to love?
    You better find somebody to love… Grace Slick

    You better find somebody to love Mr. President and it needs to be someone other than yourself, Karl Marx, Napoleon, Robespierre, or Stalin.

    For you, it has to be Christ. (Go away foul atheist, this would be between me and my brother, Obama). We, my brother in Christ Barack Obama and I, together inherit the promise of Christ’s work on the cross. I can speak to my brother in Christ without your vicious interference.

    Christ never desires that government or anyone else should steal from one and give to another.

    Never.

    And you should be no part of it.

    And He never desires that you usurp the lawful foundation to our civilization which you appear to have contempt for. He called you to this place to uphold justice and the law, not trample them. They lie within the boundary of the Constitution.

    And He never desires you to terrorize innocent women and children at airports, bus stations, or train depots with the prospect of sexual molestation by government officials.

    If you ask for wisdom, Christ promises to give it to you, but you have to believe He will. And you can truly become a great President even in the light of failure.

    Moreover, you could become our greatest Christian President yet if you would trust Him and ask for wisdom.

  70. Observer;

    Apparently I am unfit for discussing issues with others at this blog.

    I’m sorry, but you will have to speak with someone else if you would like a response or an explanation about my status as a human being.

    Have a great day.

  71. Observer: “2T, Bob is wrong. A social security mandate has been imposed for over 70 years, on individuals, constitutionally, and so can a health mandate, as a tax and a regulation of commerce.”

    An argument is a claim backed by reasons; care to share with us your ‘reasons’ in support of stretching the commerce clause so far as to include exercising one’s right to life as a form of commerce?

    Care to regale me with stories that the constitution was never meant to be the delineation of a federal government with specifically enumerated powers; that mere ‘good intentions’ are sufficient to amend the document and give the government unlimited powers whenever people ‘feel’ like it’s the right thing to do?

    Observer: “If his idiosyncratic constitutional theories go into effect, watch your Social Security, Medicare and Medicaid go down the drain, too.”

    Guess that makes J.T. ‘idiosyncratic’ too

    J. Turley: “While Fried was asked about my about any remaining limits on federal authority if this passes muster, he fails to offer any such limits. Instead, he suggests that any regulations of a matter touching commerce is within Congress’ limited and enumerated powers. That would leave no limits. Some of us simply do not believe that the Framers would have created a system of such limited powers and then allowed unlimited power on any decision that can be defined as affecting commerce.”

    Observer: “Bob says “Health care reform can only be achieved via reform of medicare and funding through the general tax rolls,” but that is just him, not the Constitution, the Courts, or recognized legal scholars.

    The Constitution does not use the term “general tax roll,” just Bob.”

    Again claims sans reasons. Is it your contention that monies collected by virtue of the 16th amendment should not be deemed a ‘general tax roll?’ Because that phrase “from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration” is kind of hard to ignore.

    Lemme guess, you also believe there’s no such thing as separation of church and state because those words can’t be found within the constitution?

  72. “If any act of congress, or of the legislature of a state, violates…constitutional provisions, it is unquestionably void…”

    Justice James Iredell

    “Thomas Jefferson…[said] at the outset of the revolution that no matter how long the British oppressed the colonists, they would never acquire a right to oppress them by having done it repeatedly.” page 100 The Politically Incorrect Guide to the Constitution, Kevin Gutzman

    Even if it was done for, say, (let me pull a number out of thin air) 70 years.

  73. Bears repeating…

    The Mantra:

    Arguing is reason giving.

    Reasons are justifications or support for claims.

    Rationality is the ability to engage in reason giving.

    The alternative to reason giving is to accept or reject claims on whim or command.

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