noname2200 said:
badgenome said:
noname2200 said:
Actually, I don't believe this is true at all. If driving was a right, it would still impact interstate commerce, and therefore fall under the commerce clause. There might be more restrictions on the mandate, most likely that the impoverished can forego insurance at their option, but again, the commerce clause does not contain an exemption that says that economic activities that are otherwise constitutional rights are exempt from the commerce clause. Those intervening rights might restrict the applicability of the commerce clause (again, see the above example), but unless the intervening right is some absolute that states it's impervious to other regulation, I don't see the issue.
|
We don't really know if a car insurance mandate would fall under the commerce clause, though, because car insurance is mandated at the state level and not the federal level. In the strictest definition of regulation - the one the framers likely meant, IMO - that would be "to make regular". But it isn't regular, since auto insurance requirements vary from state to state.
|
We do know that, though. The federal government has hitherto elected to mostly keep out of that arena. Remember, back in the 40's the Supreme Court upheld the federal government's ability to regulate any insurance transaction if it is interstate, and in fact the feds already DO regulate auto insurance as a whole. Auto insurance is not immune to anti-trust laws, for example. The feds decided, by statute, to reserve more specific regulations to the states. But this does not mean the federal government is eternally forbidden from doing more. Insurance, auto or otherwise, is inherently a commercial activity that impacts interstate commerce, and thus susceptible to federal regulation.
Kasz216 said:
4) No... actually it is factually true. There have been large numbers of cases thrown out due to free speech or freedom of expression etc. They have a case like this once or twice a year that catches the news in New York.
Demonstraters only get arrested if they resist being moved aftewords. Also, time, place and content laws have to be nuetral for all parties and not be biased towards one group. Which this healthcare law is. It would be more aplicable to content restrictions.
Where there are plenty of cases of things like people defecating on sidewalks and getting aroudn other laws by argueing "freedom of expression."
Well that combined with prior restraint. Which is making the arguement that someone act is going to have direct, immediate harm to other people.
Which, clearly this does NOT meet the burden of. Your arguement has been based on vague, indirect harm.
Which really, is an arguement you can make for all taxes... since all taxes involve people paying more, because other people need to pay less. The same arguements you make for this law.... essentially would be used by the staunchest of libretarians against all taxes.
|
Leaving aside how tangential this discussion is (just because something is an inevitable fact of modern life, does not mean it is a guaranteed constitutional right!) this is wrong. Freedom of speech is not some Medieval sanctuary law that gets you out of trouble when you claim it. This point is not debatable.
Freedom of speech, like every other right under the Constitution, is prone to regulation. The fact that enforcement generally, but not always, is restrained enough to give violators a chance to comply with the regulations before leading to arrest does not defeat the fact that the speech remains regulated. It's not even strictly true that the government is unable to regulate the content of free speech, it's merely put against the incredibly-high burden of strict scrutiny. Even prior restraint laws have been held by the Supreme Court to be valid in the past.
Perhaps your New York cases resulted from a state-specific law or rule, or the ruling was simply misinterpreted by the news, or the district court judges felt sympathecic. I don't know. But the overall question has been long settled: freedom of speech is not an absolute right, and exercising it improperly can lead to a penalty.
But we're now getting ridiculously off-topic. You're now trying to apply different free speech regulation analyses onto a question that revolves around the commerce clause. It's the wrong tool for the job. The issue at hand is simple: does the commerce clause grant the federal government the right to incentivize individuals without health insurance to acquire health insurance? The answer is more complex. But I can assure you that free speech restrictions aren't going to enter that analysis.
As a final aside to your last point above, the legal argument for federal taxes is based specifically on articles of the Constitution and an amendment to same. Nothing more, nothing less.
Kasz216 said:
1) There are plenty of Americans like that. Immigrants mostly, but there are also children who are given birth too live and don't use medical facilties when young, or if they do, use ones that are totally free. I know plenty of poeple who's kids have done that.
|
Then you are the first person I know who knows someone like that. And while I wonder who exactly paid for that "free" care, I feel compelled to point out that 1) such folks are a small minority that they weren't even brought up to counter the government's allegation that health care is inevitably going to be used, and 2) even that free health care falls under the auspices of federal regulation. It is well settled that all health care, at the moment it is offered, is prone to regulation.
Kasz216 said:
2) You don't seem to understand waht a slippery slope arguement is. A Slippery slope arguement is "If A) Happens, then B) which is different and worse will happen".
Gay marriage vs Dog marriage is a slippery slope arguement because Dogs aren't human and have no ability to consent.
There is no similar reason that forcing people to buy food is worse then forcing people to buy health insurance. I'm making a lateral arguement. A better example of my arguement using gay marriage would be. "If you don't let gay people get married, then why do we let infertile heterosexual couples get married' because they're both pairs of consenting adults who can not have children.
This is a lateral example. It shows that why A) is stupid, put into context of a roughly analgous situation with which a person doesn't have a predefined emotion towards.
|
I can't say I'm convinced, but for the sake of discussion I'll agree to call your argument a lateral example instead. My question still stands: what is the legal principle behind this argument? Constitutional, statutory, or even rule of construction, any will do. And "I don't feel comfortable with the implications" is not really a legal argument, although I concede that it is commonly used by judges and Justices as the honest impetus behind some rulings. It may even play a deciding role in this case, judging by Kennedy's questions. But it's not a legal argument.
Kasz216 said:
3) You might not think it's true... but it is. Note even the car insurance lobby is stating so, there has been many lawsuits on the arguement which largely just ended in "Driving isn't a right, therefore you can regulate it." Furthermore, these are state laws... specifically because most people won't ever drive out of there state. Which really is another reason why calling Healthcare interestate commerce is really questionable.
|
Again, no. The analyses in those cases ends at that point because that ultimately is the deciding issue; courts rarely go beyond the narrow deciding question. I forget the precise term right now, but in essence courts as a general rule do not extend their analysis any further than the bare minimum. Think of this very case: had the Court decided yesterday that the issue is moot due to this being a tax, they wouldn't have even bothered addressing the rest of the issue. Pointing to those rulings as somehow dispositive in our hypothetical example is futile.
As for the part about state laws, see my response to badgenome, above.
Kasz216 said:
Also, I'd note that the food case isn't that outlandish.
Afterall the strongest arguement for the healthcare law is that in the past the government has fined people before for growing too much wheat. Meant only for personal consumption. Argueing that because he was growing his own food he wouldn't buy food on the market.
Which was just ludicrius, but allowed because of Great Depression hysteria... and FDR thinking it was a good idea to make poor people pay more for food.
|
I agree that Wickard goes too far for my tastes. But it's definitely established precedent, one that's fairly relevant to the issue at hand, and dispositive towards rather than against the constitutionality of this law.
SamuelRSmith said:
The language of some of the questions was actually far harsher than I expected. On the whole, I don't think today was a good day for the Government's side. But, I'm not usually a follower of the Supreme Court... perhaps they always ask questions like this, and vote another way, anyway.
|
It's not uncommon, although generally most of the Justices have long since made up their minds, and are simply seeking to sway more Justices to their side and/or find nice statements to utilize in their opinions.
I'm inclined to think that, once Kennedy finds some limiting principle that sounds nice in his head (although busting out tort principles here? REALLY?!), he'll vote for, and maybe bring Roberts along too. If he can't, it'll probably go 5-4 against. I don't see any of the liberal Justices changing course.
|
