yep, fraycon ignorance is unsurprising
by
mercurial1
11/07/2009, 5:55 PM #
I'd have thought the commerce clause being behind the constitutionality of the mandated insurance would have been common knowledge by now.
Legal scholars debunk claim that reform bill is unconstitutional
Law professor Kerr, who advised Cornyn, declares Napolitano's argument "weak" and "filled with so many errors." George Washington University law professor Orin Kerr, who served as Cornyn's special counsel for the Sotomayor confirmation proceedings, wrote a blog post stating: "Once in a while I come across an op-ed filled with so many errors, misstatements, and plainly weak claims that the mere number of those becomes far more interesting than the argument of the op-ed itself. A case in point is today's Wall Street Journal op-ed by Fox News Channel senior judicial analyst Andrew P. Napolitano, which argues that President Obama's health care proposals are unconstitutional because they exceed the commerce clause power. Here's an excerpt; how many errors, misstatements, and plainly weak claims can you count?" After quoting two paragraphs from Napolitano's piece, Kerr stated: "There are also errors by omission, like the curious decision to ignore Gonzales v. Raich, but I think it's only sporting to stick to claims actually made." [10/17/09]
Constitutional expert Chemerinsky: Constitutionality of reform proposals supported by "unbroken line of precedents stretching back 70 years." In an October 23 Politico piece responding to Klukowski, University of California, Irvine law professor Erwin Chemerinsky stated, "Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce." Chemerinsky further stated:
Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.
Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine.
Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, "substantial effect" can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce. [10/23/09]
Yale Law professor Amar debunks arguments that reform is a "taking." According to Slate.com's Timothy Noah, Yale law professor Akhil Reed Amar and Fordham Law School dean William Treanor debunked conservatives' argument that the individual mandate could be considered a "taking" in violation of the Fifth Amendment:
[A]ccording to Akhil Reed Amar, who teaches constitutional law at Yale, the case law does not support [Peter] Urbanowicz and [Dennis] Smith [both formerly of the Department of Health and Human Services]. "A taking is paradigmatically singling out an individual," Amar explains. The individual mandate (despite its name) applies to everybody. Also, "takings are paradigmatically about real property. They're about things." The individual mandate requires citizens to fork over not their houses or their automobiles but their money. Finally, Amar points out, the individual mandate does not result in the state taking something without providing compensation. The health insurance that citizens must purchase is compensation. In exchange for paying a premium, the insurer pledges (at least in theory) to pay some or all doctor and hospital bills should the need arise for medical treatment. The individual mandate isn't a taking, Amar argues. It's a tax.
But how can it be a tax if the money is turned over not to the government but to a private insurance company? William Treanor, dean of Fordham Law School and an expert on takings, repeated much of Amar's analysis to me (like Amar, he thinks a takings-based argument would never get anywhere), but instead of a tax he compared the individual mandate to the federal law mandating a minimum wage. Congress passes a law that says employers need to pay a certain minimum amount not to the government but to any person they hire. "The beneficiaries of that are private actors," Treanor explained. But it's allowed under the commerce clause. "Minimum wage law is constitutional." So, too, then, is the individual mandate.
Yale Law professor Balkin debunks claim that Tenth Amendment prohibits reform. Responding to the arguments that health care reform violates the Tenth Amendment -- which reserves all power not delegated to the federal government to the states or the people -- Yale law professor Jack Balkin has noted that "the safeguards of federalism are political," not judicial, and that state governors do not have the power to nullify federal laws or "violate federal laws or interfere with federal employees."
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