Posted by Willful on March 24, 2010, at 10:09:17
In reply to Re: explain to me why its a bummer i havent got a clue » manic666, posted by conundrum on March 23, 2010, at 1:06:01
Actuallly, there's a long history of interpreting the constitution to mean that the federal government has priority over state governments in all sorts of matters.
Here's a concise statement of the issues, from a liberal blog, but one that strives for clarity and straightforwardness. It seems to me to set out the issues well.
It reads, as follows:"In recent media appearances, the AGs -- the most high-profile of whom have been Ken Cuccinelli of Virginia, Bill McCollum of Florida, and Henry McMaster of South Carolina -- have made a grab-bag of claims, among them that the bill violates state sovereignty. That's a contention that no court is likely to have much time for. As Steve Schwinn, an associate law professor at John Marshall Law School has written, state laws that aim to override the federal mandate "are almost surely unconstitutional, as conflicting directly with the federal requirement."
The stronger argument in the arsenal of the AGs -- many of whom happen to be running for governor -- relates to the Commerce Clause, the section of the Constitution that empowers Congress to regulate interstate commerce. The AGs focus on the provision of the bill that requires almost all Americans to obtain health insurance. They argue that imposing a penalty on people merely for declining to buy insurance is outside the scope of Congress's power under the Commerce Clause."
The issue with the Commerce Clause is that it purports to allow the federal government to regulate "activity" among the states-- whereas some conservative scholars are trying to argue that not buying insurance (ie refusing to adhere to the mandate) is "inactivity" and thus not covered by the Commerce Clause. However, this argument would be considered to overturn a great deal of legal history, including Supreme Court ruling.
The article on this point reads as follows:
"Randy Barnett, a professor of constitutional law at Georgetown Law School, agrees. "The individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented," he wrote in a Washington Post op-ed that appeared this weekend. "Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another.""
An argument that rebuts this contention is as follows (also from the same blog posting):"Jack Balkin, a constitutional law professor at Yale Law School, extends that argument [against Barnett's point]. In a recent blog post, he notes that in the Raich case, Justice Scalia found that Congress can use the Commerce Clause to regulate, as Balkin put it, "even non-economic activities if it believes that this is necessary to make its regulation of interstate commerce effective"...). People who don't buy health insurance, Balkin argues, aren't simply "doing nothing," as Rivkin, Barnett et al. claim. These people pass on their health-care costs by going to the emergency room, or buying over-the-counter cures. "All these activities are economic, and they have a cumulative effect on interstate commerce," writes Balkin."
Hence the blog concludes that it would be an extraordinary stretch for the Supreme Court-- or any court-- to overturn the Health Care Reform Act.
I personally think it's a great step forwrard for our country and long overdue.
Willful
poster:Willful
thread:940515
URL: http://www.dr-bob.org/babble/poli/20090821/msgs/940656.html