Dave's Verse

The SC decision is still fresh on my mind. So I wanted to get this out there before I lost it. Justice Roberts says congress can tax people if they don't buy health insurance. I don't think he set out any limits in his decision or made the slippery slope argument that he did with congress' ability to enforce the mandate under the commerce clause. But there is a slippery slope argument to be made. If congress can tax people for not buying insurance, what can't congress tax people for? We can even use the broccoli analogy here. If congress can tax people for not buying insurance, why can't congress tax people for not buying broccoli? Also, if congress can tax people X amount for not buying health insurance, why can't congress tax people an unlimited amount of money for not buying health insurance or broccoli, or tax them 99% of their income for an income tax? I'm not sure if Roberts addressed these questions. And I'm not sure why they are any less impo...

I feel a little less ignorant after reading some things about the idea of a limiting principle for the ACA and individual mandate in particular. It didn't make sense to me months back . Here's Matt Yglesias with a specific example as to why I was confused that this would be an issue: I'm not a lawyer, but I have to say that I found the entire "limiting principle" discussion at the Supreme Court somewhat confusing. After all, if the government can charge you a 20 percent marginal tax rate what's to stop them from going to 39.4 percent or 99.7 percent? Nothing, it seems to me, and yet life goes on. But Congress could, if it wanted to, completely vitiate economic freedom purely through the tax code. You would impose a statutory rate of 100 percent and then create deductions for the stuff Congress wants you to buy—houses, health insurance, broccoli, whatever. I don't think anyone would reasonably conclude from the fact that Congress could do that stuff th...

They are underway at the Supreme Court. And apparently the pro-ACA side struggled with some of the questioning from the justices, particularly the limiting principles issue which I've talked about before . As we could have predicted, the broccoli question came up. So I wanted to give it a shot to see if I can make a better argument than the gov't did yesterday. I think it was Scalia that asked, if the gov't can force you to buy health insurance, what can't it force you to do?. First of all, even conservatives like Scalia will admit that the gov't has the power to regulate interstate commerce. That's plainly in the constitution. I don't hear anyone arguing that the health insurance market doesn't fall under interstate commerce. So it would appear that the gov't has some sort of power to regulate said market. Why can the gov't exert the specific power it's putting forth in this case, that being a mandate that fines you if you don't acquir...

I was advised by the blog Lawyers, Guns, and Money to read her opinion . I've started reading it even though I'm tired. And since she writes so clearly and effectively I wanted to quote some of the passages I am finding helpful: The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,” Letter from James Madison to N. P. Trist (Dec. 1831), in 9 Writings of James Madison 471, 475 (G. Hunt ed. 1910). “Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a capacity to provide for fut...

I was reading Glenn Greenwald yesterday and he said something that made me think about an argument I made about the individual mandate. He said something along the lines of the old adage that once the gov't takes some power it's likely it will keep taking more and more. He said that in relation to the executive power to do things like monitor/spy on civilians and other things related to 'war on terror' policies. I generally agree with Glenn that when the executive takes that kind of power it is likely to expand it. Obama has done so with drone strikes. Bush did so with numerous policies. And history is riddled with similar instances. I made kind of the opposite argument about the power congress has in relation to the individual mandate. I said that just because it can force people to buy health insurance doesn't automatically mean that it can then claim the power to force people to eat broccoli. Further, I think the supreme court should allow congress to use tha...

I'll try to make this as brief and simple as possible for those of you who don't want to run around the internet looking for a summary and analysis. Here's a good one from the always fantastic Ezra Klein: The 5-4 language suggests that Roberts agreed with the liberals. But for the most part, he didn’t. If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. ”He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.” His break with the conse...

Adam Serwer spells it out : What the law's critics will seize on, however, is Silberman's observation that although the government argues that "the Government does stress that the health care market is factually unique," it "concedes the novelty of the mandate and the lack of any doctrinal limiting principles." While "novelty" isn't inherently an issue when it comes to the constitutionality of a given law, the "lack of any doctrinal limiting principles" is the most powerful argument critics of the ACA have, the idea that if the government can force you to buy health care, it can force you to do anything. Silberman describes this argument as "troubling, but not fatal," because of prior legal precedent supporting the ACA. The law's defenders unquestionably have legal precedent on their side. But its opponents have an incredibly effective political argument based on constitutional first principles. More importantly, a...

In light of my attempt to convince the SC from my little desk in my little room I figured I would post some arguments from some people who have slightly better credentials than myself. And yes, this is also about patting myself on the back for coming up with similar arguments, which you can see in my previous post. Hey, I've got an ego that needs attending every once in a while. Here's former Reagan solicitor general: But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion. If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18% of the United States economy. (In this connection recall Perez v. Unite...