On Nov 4, 7:27 am, smor... at (no spam) board.com wrote:

On Tue, 3 Nov 2009 20:30:53 -0800 (PST), cpt banjo

cptba... at (no spam) aol.com> wrote:

Since this would be the first time in our history where the federal
government tells its citizens that they must buy something or face a
fine, I think the Court might very well make such a distinction to
invalidate such an idiotic law.

What law is that?

Isn't the government telling people they must buy Car
insurance the same?

Or requiring immunizations for passports and travel, or
a host of other things?


I can avoid buying car insurance by not driving. How do I avoid
buying health insurance short of leaving the country? In other words,
can the federal government make buying health insurance a condition of
residence in the U.S.?

cpt banjo wrote:
It's a business.  

All business is commerce?

Please explain.

Don't ask stupid questions.

It isn't stupid at all.  In fact, it is THE most important question to
be asked, and surprisingly, the most ignored (and repudiated) as has
just been shown.

Heath insurance is strictly intrastate, and therefore exempt.

Peter Franks wrote:
Josh Rosenbluth wrote:

On Nov 3, 4:32 pm, Peter Franks <n... at (no spam) none.com> wrote:

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Mike wrote:

news.google.com
Constitutionality of health overhaul questioned
Donald Lambro
On top of all the other obstacles facing President Obama in his
quest
to pass health reform is this one: Does the U.S.
Constitution allow
the government to require uninsured Americans to buy medical
insurance
or impose a tax penalty if they refuse?
Congress has never before required citizens to purchase any
good or
service, but that is what both House and Senate health bills
would
mandate.
While this debate has been overshadowed by other issues
involving the
plan's nearly $1 trillion cost and its government-run
option, the
constitutional argument strikes at a pivotal part of the health
care
plan's finances. To make a government-run health care plan
work,
the
nation's largely uninsured young adults would need to be
covered to
help subsidize medical care for older and typically
less-healthy
Americans, legislators say.
House Speaker Nancy Pelosi dismissed the complaint Thursday
when
she
was asked by a reporter if the Democrats' health reform
proposal
was
constitutional.
"Are you serious? Are you serious?" Mrs. Pelosi replied.
But House Minority Leader John A. Boehner said the argument
could not
be ignored.
"I'm not a lawyer, and I'm certainly not a constitutional
lawyer, but
I think it's wrong to mandate that the American people have
to do
anything," he told reporters at his own press briefing last
week.
The question of the mandate's constitutionality "hasn't been
part of
the public debate, but the legal community has been debating
it.
It's
been on all the legal blogs," said Michael Cannon, director of
health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force
Americans to
purchase health insurance."
In 1994, the nonpartisan Congressional Budget Office noted
that a
"mandate requiring all individuals to purchase health insurance
would
be an unprecedented form of federal action."
"The government has never required people to buy any good or
service
as a condition of lawful residence in the United States,"
the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also
required
that
all Americans purchase health insurance plans.
The Constitution gives Congress the power "to regulate
commerce ...
among the several states" - a clause that has served as the
foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.
But Randy Barnett, a professor at Georgetown University Law
Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.
"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.
Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued
in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.
"The Constitution assigns only limited, enumerated powers to
Congress,
and none, including the power to regulate interstate
commerce or to
impose taxes, would support a federal mandate requiring anyone
who is
otherwise without health insurance to buy it," they said.
But other legal scholars say that the Supreme Court has in
recent
decades taken a much broader view of Congress' commerce
powers and
would likely do the same in this case if the legislation's
mandate is
challenged in court.
"I would be willing to wager with Professor Barnett that the
Supreme
Court would uphold such a mandate, given the court's expansive
reading
of the Commerce Clause. In fact, I don't think the vote
would be
close," Washington and Lee University professor Timothy
Stoltzfus Jost
said.
Even some conservative legal analysts who oppose the health
care
reform think that in the end, if the legislation passes,
Congress
would win in the courts.
"In this case, the overall scheme would involve the
regulation of
'commerce' as the Supreme Court has defined it for several
decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring
all to
participate," writes Jonathan H. Adler, law professor at Case
Western
Reserve University School of Law.
House Majority Leader Steny H. Hoyer of Maryland was asked at a
news
conference recently whether Congress had "the power to
mandate that
somebody buy health insurance." He replied: "Promoting the
general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."
The Senate Finance Committee, which recently approved one of
the
Senate's two main health care bills, "thoroughly explored
the issue
and believes that the policies put forward in our bill will
fall
within" the constitutional powers of Congress, a top aide said.
But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite
[constitutional]
scrutiny," said a paper presented to the Federalist Society
for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and
health
care management consultant, and Dennis G. Smith, senior
research
fellow in health care reform at the Heritage Foundation.
They cited Columbia University health policy professor Sherry
Glied,
named by Mr. Obama to a top policy job in the Department of
Health and
Human Services, who warned that "developing a system to
promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."
"It may require a degree of intrusiveness and bureaucracy
that some
will find unpalatable."

There is little doubt mandatory health insurance is
Constitutional under existing precedent. ...

What precedent?

Raich. Congress may regulate non-commerce when it has a rational
basis for believing such regulation is necessary for a broader
regulation of commerce (in this instance, the broader regulations
on insurance companies).

But we aren't talking about the regulation of insurance companies,
we are talking about mandating the citizens to participate.

Congress may regulate non-commerce (mandating citizens to
participate) when it has a rational basis for believing such
regulation is necessary for a broader regulation of commerce
(requiring insurance companies to drop pre-existing condition
clauses).

You have distilled Article I, Section 8, Clause 3 into: Congress
shall
have power.

Nope. For example, you couldn't mandate that everyone wakes up
before 9
AM because there is no rational basis that is necessary for a broader,
permissible regulation of commerce.

Sure you could, and it has been done: Daylight Savings Time.


Corr: Daylight Saving Time

DST is a suggestion, not a mandate. Some states do not observe it.


Wrong*, but that doesn't matter. The point has been shown, the feds
assume the power and have exercised it.

* From the bastion of propaganda: "The U.S. federal Uniform Time Act
became law on April 13, 1966 and it *mandated* that DST begin
nationwide..." (emphasis added).
http://en.wikipedia.org/wiki/History_of_time_in_the_United_States#DST_1966


And your link then how explains how states can grant themselves an
exception.

cpt banjo wrote:

On Nov 4, 7:27 am, smor... at (no spam) board.com wrote:

On Tue, 3 Nov 2009 20:30:53 -0800 (PST), cpt banjo

cptba... at (no spam) aol.com> wrote:

Since this would be the first time in our history where the federal
government tells its citizens that they must buy something or face a
fine, I think the Court might very well make such a distinction to
invalidate such an idiotic law.

What law is that?

Isn't the government telling people they must buy Car
insurance the same?

Or requiring immunizations for passports and travel, or
a host of other things?


I can avoid buying car insurance by not driving. How do I avoid
buying health insurance short of leaving the country? In other words,
can the federal government make buying health insurance a condition of
residence in the U.S.?

Firstly, courts ought not be looking for distinctions because they think
a law is idiotic, but rather because some combination of history or
Constitutional text support the distinction.

Secondly, the example of immunizations or the military draft are
individual mandates derived from the Necessary and Proper clause applied
to some other enumerated power. The Court would have craft logic that
prohibits a mandate to do something as applied to the Commerce Clause,
without doing likewise as applied to other clauses. It looks to me that
is a logical somersault.

If you think the mandate is idiotic, convince your elected officials not
to vote for it.

On Nov 4, 4:30 pm, Peter Franks <n... at (no spam) none.com> wrote:
cpt banjo wrote:
On Nov 4, 9:57 am, Peter Franks <n... at (no spam) none.com> wrote:
Is health insurance commerce?
Of course it is.
Really? How? Please explain.

It's a business.

Don't ask stupid questions.

You made the assertion that the feds don't have the power to mandate
that everyone wakes up before 9. I proved that statement false.

Firstly, courts ought not be looking for distinctions because they think
a law is idiotic, but rather because some combination of history or
Constitutional text support the distinction.

Absolutely not. History is irrelevant in the eyes of the court.

The courts must ONLY look at the Constitutional text (directly or
indirectly through precedent).

Don't ask stupid questions.

It isn't stupid at all. In fact, it is THE most important question to
be asked,

On Nov 5, 8:40 am, Peter Franks <n... at (no spam) none.com> wrote:
cpt banjo wrote:
It's a business.
All business is commerce?

Please explain.

Don't ask stupid questions.
It isn't stupid at all. In fact, it is THE most important question to
be asked, and surprisingly, the most ignored (and repudiated) as has
just been shown.

The question has been answered. It's not my fault if you don't like
it.

"The most widely accepted general description of that part of commerce
which is subject to the federal power is that given in 1824 by Chief
Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 189, 190: 'Commerce,
undoubtedly, is traffic, but it is something more-it is intercourse.
It describes the commercial intercourse between nations, and parts of
nations in all its branches ....' Commerce is interstate, he said,
when it 'concerns more states than one.' Id., 9 Wheat. 194. No
decision of this Court has ever questioned this as too comprehensive a
description of the subject matter of the Commerce Clause. To accept a
description less comprehensive, the Court has recognized, would
deprive the Congress of that full power necessary to enable it to
discharge its Constitutional duty to govern commerce among the
states...

No commercial enterprise of any kind which conducts its activities
across state lines has been held to be wholly beyond the regulatory
power of Congress under the Commerce Clause. We cannot make an
exception of the business of insurance." U.S. v. Southeastern
Underwriters Assn., 322 U.S. 533, 550 (1944)

cpt banjo wrote:

This has nothing to do with whether it's commerce, which was your
original question.  Nice try, but changing the subject won't fly.

Didn't change the subject.  Your substantiation about 'any business is
commerce' was only applicable to intrastate business.  Health insurance
is intrastate, and therefor your substantiation doesn't apply.

No commercial enterprise of any kind which conducts its activities
across state lines has been held to be wholly beyond the regulatory
power of Congress under the Commerce Clause. We cannot make an
exception of the business of insurance." U.S. v. Southeastern
Underwriters Assn., 322 U.S. 533, 550 (1944)

Heath insurance is strictly intrastate, and therefore exempt.

On Nov 5, 10:55 am, Peter Franks <n... at (no spam) none.com> wrote:

Heath insurance is strictly intrastate, and therefore exempt.


This has nothing to do with whether it's commerce, which was your
original question. Nice try, but changing the subject won't fly.

cpt banjo wrote:
On Nov 5, 12:07 pm, Peter Franks <n... at (no spam) none.com> wrote:

cpt banjo wrote:

This has nothing to do with whether it's commerce, which was your
original question.  Nice try, but changing the subject won't fly.

Didn't change the subject.  Your substantiation about 'any business is
commerce' was only applicable to intrastate business.  Health insurance
is intrastate, and therefor your substantiation doesn't apply.

You either didn't bother to read the decision, or if you did either
(a) you didn't comprehend the decision's language, or (b) you are
intellectually dishonest and are trying to misrepresent the holding of
the case.

The Court faced two issues: "(1) Was the Sherman Act intended to
prohibit conduct of fire insurance companies which restrains or
monopolizes the interstate fire insurance trade? (2) If so, do fire
insurance transactions which stretch across state lines constitute
'Commerce among the several States' so as to make them subject to
regulation by Congress under the Commerce Clause?"

The Court first addressed the second point, and in doing so zeroed in
on whether  the insurance business was "Commerce":  "Ordinarily courts
do not construe words used in the Constitution so as to give them a
meaning more narrow than one which they had in the common parlance of
the times in which the Constitution was written. To hold that the word
'commerce' as used in the Commerce Clause does not include a business
such as insurance would do just that. Whatever other meanings
'commerce' may have included in 1787, the dictionaries, encyclopedias,
and other books of the period show that it included trade: businesses
in which persons bought and sold, bargained and contracted. And this
meaning has persisted to modern times. Surely, therefore, a heavy
burden is on him who asserts that the plenary power which the Commerce
Clause grants to Congress to regulate 'Commerce among the several
States' does not include the power to regulate trading in insurance to
the same extent that it includes power to regulate other trades or
businesses conducted across state lines.

The modern insurance business holds a commanding position in the trade
and commerce of our Nation. Built upon the sale of contracts of
indemnity, it has become one of the largest and most important
branches of commerce...

Despite all of this, despite the fact that most persons, speaking from
common knowledge, would instantly say that of course such a business
is engaged in trade and commerce, the District Court felt compelled by
decisions of this Court to conclude that the insurance business can
never be trade or commerce within the meaning of the Commerce Clause.
We must therefore consider these decisions...[the Court then
distinguished previous cases]"

It's obvious to all but the most obtuse or the most intellectually
dishonest that the Court held that the insurance business constituted
commerce. Only then did it address the argument that the insurance
contracts were intrastate transactions and therefore beyond
congressional regulation:

""We may grant that a contract of insurance, considered as a thing
apart from negotiation and execution, does not itself constitute
interstate commerce. Cf. Hall v. Geiger-Jones Co., 242 U.S. 539, 557 ,
558 S., 37 S.Ct. 217, 223, 224, L.R.A. 1917F, 514, Ann.Cas.1917C, 643.
But it does not follow from this that the Court is powerless to
examine the entire transaction, of which that contract is but a part,
in order to determine whether there may be a chain of events which
becomes interstate commerce. Only by treating the Congressional power
over commerce among the states as a 'technical legal conception'
rather than as a 'practical one, drawn from the course of business'
could such a conclusion be reached. Swift & Co. v. United States, 196
U.S. 375, 398 , 25 S.Ct. 276, 280. In short, a nationwide business is
not deprived of its interstate character merely because it is built
upon sales contracts which are local in nature. Were the rule
otherwise, few businesses could be said to be engaged in interstate
commerce...

...it would indeed be difficult now to hold that no activities of any
insurance company can ever constitute interstate commerce so as to
make it subject to such regulation;-activities which, as part of the
conduct of a legitimate and useful commercial enterprise, may embrace
integrated operations in many states and involve the transmission of
great quantities of money, documents, and communications across dozens
of state lines."

The simpler reasoning would have been the regulation of purely
intrastate insurance transactions is permitted by the Necessary and
Proper clause as applied to the overall business venture which is
clearly interstate.  because of its impact on interstate commerce.
Ditto for health insurance.

There's only one line of business I can think of that the Court has
held doesn't constitute "commerce" for purposes of the Commerce Clause
that is still good law. The law regarding this business is an
historical anomaly, and I leave the identity of the business as a
trivia question for those interested.

Got me.

Josh Rosenbluth-

cpt banjo wrote:
On Nov 5, 10:55 am, Peter Franks <n... at (no spam) none.com> wrote:

Heath insurance is strictly intrastate, and therefore exempt.


This has nothing to do with whether it's commerce, which was your
original question. Nice try, but changing the subject won't fly.

Didn't change the subject. Your substantiation about 'any business is
commerce' was only applicable to intrastate business.