I spent so much time commenting on another blog, that I’m going to post it here too. Seems a waste of time otherwise.
Mahablog is a long-running and well-established blog, so I keep running into links to it. I’ve followed the links enough times to become a sporadic reader. For whatever reason, I find her blanket right-wing insults, well, less insulting than most. I cannot even begin to fathom why. Maybe it’s that whole serene buddhist vibe. So, when I’m in the mood to see what the left is saying, chances are good that I’ll start with Barbara O’Brien.
Because this post began as a comment, it is less formal and polished than I prefer, but oh well. I’m outta time. Here it is:
The reason the health insurance mandate is not considered a tax is because the bill was crafted in a manner to avoid being considered a tax. This was to help sell the bill to the American people. I remember the Pres telling Stephanopoulos the mandate is not a tax.
Judge Vinson did not ignore the Necessary and Proper Clause. He did not argue that Congress can’t make laws generally. They just have to do so within constitutional constraints.
He interprets the N & P Clause differently from you, and relies on case law in doing so. It appears you interpret that clause to be a blanket law-making ability, above and beyond the enumerated powers. Judge Vinson’s treatment of the N & P Clause begins on page 56 of his opinion. He analyzes the use of N & P for the mandate with the recent case of US v. Comstock’s 5 considerations. He concludes that it fails at least 2 considerations. He points out that Comstock is not a complete reversal of prior Sup Ct precedents.
As Vinson explains, “The Supreme Court has repeatedly held, and the emphasized text makes clear, that the Clause is not an independent source of federal power.”
Vinson did not ignore precedent. He analyzed the case under Maryland v. McCullough. You see, the idea of implied powers is not the same as a blanket ability to write any law Congress thinks is good for the country.
Under McCullough’s famous quote, a law must still be “appropriate,” and “not inconsistent with the letter and the spirit of the Constitution.” Vinson concluded that the mandate is inconsistent and inappropriate.
I understand you disagree with that analysis, but disagreement does not make Judge Vinson’s ruling absurd, or stupid, or tortured, or a train wreck, or the mistake of a man who doesn’t know the Constitution from refrigerator mold.
Your best argument is through the Orin Kerr post that you linked above, The Weak Link In Judge Vinson’s Opinion. His point is not exactly a ringing endorsement of the mandate, though.
Basically, Kerr points out that Judge Vinson relied too heavily on the dissent and concurrence in the Raich case. Since Raich is recent, binding precedent, perhaps Vinson should have said something along these lines:
“Well, the Supreme Court majority ruled in Raich that the Commerce Clause has unlimited elasticity. Therefore I am forced to rule against the plaintiffs, but I want the Supreme Court to know that they should use the following analysis to limit Raich in the future . . . .”
I have an honest, completely un-rhetorical question for all readers. If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?
Any thoughts on this are appreciated. What, to your mind, is the best meaning of the phrase “interstate commerce?”
P.S. My first post on the Vinson ruling is here.
UPDATE: Once again, if I don’t post my comment here, then it is likely a waste of time. So here is the latest:
Thanks for your quick feedback. You say Con Law experts who conclude Vinson is wrong are “armies” and “truckloads.” And yet you quote Lawrence Tribe, Amar, and this ACS Lazurus guy.
These few don’t qualify as truckloads or armies, me thinks. A pointless exercise anyway, since for every legally trained person you could name in favor of Obamacare, I could find one constitutionally opposed.
Your latest comment seems like a muddling of two separate issues: 1) whether the insurance mandate is constitutional, and 2) whether the district court judge strayed from binding legal predecent. We’ve both established that Kerr makes a valid point regarding #2, but we seem to be making little headway regarding #1.
Maha tells me, “I don’t have time to write the Cliff’s Notes synopsis for you if you’re too lazy to read the stuff.”
No, I read the stuff but I’m not impressed by them, except for Kerr. I wonder though, are you too lazy to read Vinson’s opinion thoroughly yourself and base your opinion on your own reading?
The thing is, Tribe and the rest don’t matter to me. I’ve read the opinion myself and it is thorough and convincing, in light of Sup Court jurisprudence on the Commerce Clause and the Necessary and Proper Clause.
Raich is certainly relevant here, but not necessarily dispositive. The facts are different enough for me to reiterate my earlier point:
“This mandate is a new issue, never before adjudicated. So to a certain extent, the district courts are fumbling in the dark, and have to do a little of their own critical thinking. Hence the fact that two have said yes it’s constitutional, and two have said no.”
Maha wants to rely on experts here, because:
“I’m not a lawyer, and neither are you. These issues are not simple to understand. I took courses in constitutional history and principles a long time ago, and so I understand a lot of this better than most non-experts, but I don’t presume to have perfect knowledge without doing some studying first. I was showing you the research I had already done.”
But at this point, it is simple. Either the federal gov’t powers are limited, or they are limitless. Either the federal gov’t powers are enumerated, or they are innumerable. And so I ask again, if we are governed by a limited government, then what is its limit under the Commerce Clause if it can mandate that we buy a product or service?
You don’t have to be an expert to ask or answer that question critically. You don’t have to be a lawyer. You don’t even have to be legally trained. It sounds like you want me to discount my analysis because I’m “not a lawyer.”
Ah, but if I confess to a prior legal career, you’ll then simply dismiss my opinion as swiftly as you’ve dismissed Vinson’s, even though his legal training is not in dispute.
In other words, I reckon, why am I bothering to argue?
FINAL UPDATE (I hope): Really it’s been a rather fun debate. It would be better if the Maha could resist the temptation to continually insult me, but oh well. I guess that’s how it is when someone finds you completely contemptible. Here’s my last comment over at hers:
Ah ha, I get it now, your experts are better than mine. Of course. Ha.
I think I’ll borrow a sentence of yours now: This has already been discussed several times, but I’ll state it again, even though “I despair that you will understand any of this.”
I do get the principle of implied powers. Saying that Congress’ powers are enumerated, ie, limited, is not the same as saying “there is no such thing as implied powers.”
Yes there are implied powers. I just don’t think the mandate is one of ‘em. Under McCullough v. Maryland, even a law passed with implied powers still has to be appropriate and not inconsistent with the letter and spirit of the Constitution.
This is the point where our analyses diverge. You find it to be appropriate and consistent with your view of the Constitution. I do not. Logic dictates that there must be a limit to Commerce Clause at some point, and so I really wish someone could hazard an answer to that question I keep asking:
If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?
Because if the answer is as I suspect–there is no limit–well then the Constitution can be used to support virtually any law that any Congress could conceive. You know, in a few years when the teabaggers have taken over the House, Senate, and Presidency, that fact may worry you a bit.
Wink.
I’ll finish by borrowing one more quote from you:
“But you don’t understand what those things mean. Vinson’s arguments are [not] persuasive to you because you don’t know enough about these constitutional principles to understand [how wonderful] Vinson’s decision is. Your saying what a [pile of crap] decision it is means absolutely nothing.”
Huh, that goes quite nicely both ways.
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