Affordable Care Act Supreme Court Hearings this week

[detbuch]

Originally Posted by Jim in CT

The constitution is a list of enumerated powers. It specifically lists powers granted to the federal government, and it specifically says that everything else is left to the states.

I agree with you about what the Constitution says. But what judges say is often different than what the Constitution says. There is a famous "footnote" in the history of U.S. Constitutional jurisprudence. Footnote 4 written by Justice Harlan Stone for the 1938 U.S. vs Carolene Products which was used later to allow government to legislate against "unenumerated rights" of the People and for the non-enumerated powers of government so that Federal Government regulations would be reviewed on a "rational basis scrutiny." If government could show an even remotely rational basis for the legislation, regardless of any factual presentation or lack thereof, it would be upheld.

Having these types of things mandated by the feds might be more consistent and fair. However, the constitution doesn't say that it can be ignored to promote fairness or consistency.

You're right, the Costitution doesn't say so, but judges that have been educated in modern law schools are steeped in a progressive view of "instrumentalist" interpretation. That is, the Court is not simply a referee of Constitutional rules, but judicial decisions should be instrumental in achieving certain social goals or by treating all legal doctrines as instruments or means of serving the social objective that the judge deams appropriate. Several theories are used as a basis for such interpretation such as "realism," "monumentalism,"cognitive jurisprudence,"rule according to higher law," and "universal principal of fairness."

Johnny D is exactly correct, the analogy of auto insurance is a terrible analogy, because no one is forced to drive a car, and many peopl are not impacted by auto insurance requirements because they don't drive (lots of folks in big cities don't drive, and thus can avoid buying auto insurance without penalty). Obamacare requires every single human being to enter into a contract with a private company. Nothing like that has ever been proposed, I don't think. That it hasn't been proposed doesn't mean it's unconstututional, that's why we have the Supreme Court.

Actually, several people have been exempted from the mandate. But, when you argue with a progressive, you do so with someone who views "fairness," "equality," and equitable distribution of pain and gain through a centralized authority above any Constitutional consideration. When you point out that legislation may be unconstitutional, you will either get no response, or be led into a discussion of fairness, equity, or some contrived model of economic advantage. And usually, if not always, the instrument or means to achieve the goal is the Federal Government, which begs the question--are States necessary or are they (as well as the Constitution) an obstacle to good, efficient government?

[Jim in CT]

Originally Posted by detbuch

Actually, several people have been exempted from the mandate. But, when you argue with a progressive, you do so with someone who views "fairness," "equality," and equitable distribution of pain and gain through a centralized authority above any Constitutional consideration. When you point out that legislation may be unconstitutional, you will either get no response, or be led into a discussion of fairness, equity, or some contrived model of economic advantage. And usually, if not always, the instrument or means to achieve the goal is the Federal Government, which begs the question--are States necessary or are they (as well as the Constitution) an obstacle to good, efficient government?

Very well articulated, sir!

[mosholu]

Detbuch:
I believe all judge's decisions regardless of the time period are informed by their own political beliefs and inclinations and if you look at the Supreme Court there have been periods where different ideologies have held sway with different degrees of impact.
General comment:
If in fact the idea that mandating health insurance by requiring those who do not have it to pay a penalty fee then I think that the issue becomes one of restructuring the law so that those who do not have health insurance pay a higher rate of tax or there is a deduction of the cost of that insurance for those who have paid for the insurance. One of the big problems with health care that is behind the heath insurance law is that the uninsured do not have the means to gain access to preventive medicine and over time they in turn result in larger payments for all users of the health care system in the US. While adding another deduction/credit to the tax goes against my idea that deductions should be eliminated and all rates reduced the "tax" objection to the bill seems to me one that could be worked around.

[detbuch]

Originally Posted by mosholu

Detbuch:
I believe all judge's decisions regardless of the time period are informed by their own political beliefs and inclinations and if you look at the Supreme Court there have been periods where different ideologies have held sway with different degrees of impact.

Not as much as one would conclude by how the Court has adjudicated for the past 75 years. The period between the FDR Court to now is the time when adherence to the text of the Constitution was deliberately discarded in favor of desired political outcomes. There are various reasons for that, the main being the prevalence of progressive philosophy in our universities and educational institutions and the efforts of progressive politicians which culminated in the FDR administration all-out attack on the Constitution. This is all well documented and easily researched. That only "radical" Tea Party types and conservative talk radio, and "radical right wing" politicians discuss it, is due, again, to how our elites in the media, and the rest of us for that matter, have been educated, and the gradual acceptance of generations of the status-quo. Current generations have known only this, and accept it as correct.

Though there were some differences in Constitutional interpretation before FDR, they were not major deviations from the Constitution and the greatest problem was the slavery issue. Not that there were not attempts to expand Federal power beyond Constitutional enumerations, some of which may have succeeded to some degree, but there was no great (except for slavery) disagreement on Constitutional authority between those of opposing parties. Even Grover Cleveland, a Democrat, vetoed hundreds of bills (I think it was hundreds--it was a lot) because he considered them to be unconstitutional. Judges were not forced to consider a barrage of assaults on the Constitution because there weren't that many. And when they adjudicated, there was far more faithfulness to Constitutional text and intention.