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June 29, 2011

Sixth Circuit: Why, Of Course The Constitution Authorizes The Government To Compel You To Buy Things You Don't Want; It's Right There In Article [Inaudible] Clause [Inaudible]

Let's look at the dissent first. Remember, dissent. This position lost.

As it obviously should have. It's so poorly grounded!

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565 (“[D]epending on the level of generality, any activity can be looked upon as commercial.”). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

Poppycock and crazytalk, obviously.

Let's look at the holding of the court, excerpted at Hot Air.

Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce. Furthermore, Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance. Finally, the provision regulates active participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity. Thus, the minimum coverage provision is a valid exercise of Congress’s authority under the Commerce Clause, and the decision of the district court is AFFIRMED.

There's more there. That's just the actual conclusion.

Before the 11th Circuit, a lawyer representing the states suing to rubbish ObamaCare made a good point.

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers -- all other powers, such a the police power, reserved for the people and the states -- that the Commerce Clause generally is a "Take-Back" clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or "necessary and proper" to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it "affects interstate commerce," which, as is often pointed out, applies to everything.

Having sex with your wife? This affects interstate commerce, as you might wind up creating the ultimate economic effect -- a child; a future one-man army of economic activity, labor, investment, and consumption -- and even if you don't, your choice to have sex is a choice not to sample the fruits of interstate commerce, which is affected, then, by your choice to not enter the stream of paid entertainments.

Can we mandate that people have more children? Seems to me we could fix some of the demographic problems with SS and MediCare if only people had more children.

Oh, it's probably much too late for that; but could we have mandated this 20 years ago? Probably, this new ruling says.

At any rate, the anti-ObamaCare lawyer had a simple question:

If the framers of the Constitution meant for this one clause to have such omnipotent power, trumping everything else, establishing well-nigh plenary power of the federal government over every aspect of human existence --

Why did no one seem to think it necessary to add even the most gentle limitation on such a far-reaching power?

In other words, if this Clause means what it is, apparently straight-faced, contended to mean, and therefore is the only real clause in the Constitution at all -- why did no one think to elaborate upon it?

Why all that wasted time on Amendments and specific powers of Congress, the President, and the Courts, when the only real grant of power in the Constitution is the Commerce Clause?

Answers? Take your choice:

1. Because the Founders wanted to disguise an unlimited grant of power to the federal government in a six or seven word clause and so hid Supreme Unchecked Federal Power amid a 4400 word smoke-and-mirrors deception.

2. Um, they never intended it to mean anything like this, but only what it was taken to mean for 150 years, that is, as federal rules-making regarding tariffs and other state-created impediments to unfettered trade of goods across state boundaries.

Your choice.

You know what the Brain Trust at Time Magazine thinks.


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posted by Ace at 03:24 PM

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