Jay Tea, you need to argue with a better crowd. In the first place, the argument that Congress may require individuals to purchase health insurance lies not in the Commerce Clause but in the Necessary and Proper Clause.

"Necessary and Proper Clause."

Which immediately lends itself to JT's earlier assertion of running the lives of those on welfare. After all IT'S FOR THEIR OWN GOOD.

Two different federal courts have already told the government "Necessary and Proper" isn't going to fly.

Garand,

I'm not commenting (right now) on the validity of the argument. Just noting it.

James, I mean this most sincerely: I have not heard that argument cited before in this case. I just went to the official US government web page on the Constitution, and I presume you mean this section of Article I, Section 8:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I'm not fully buying into it, though. That clause doesn't grant any powers in and of itself; it's for the furtherance of actual, enumerated powers. I don't see the underlying power that the "necessary and proper" clause would be enabling.

J.

Let me clarify: as I see it, the "necessary and proper" isn't a power in and of itself, but an enabling power that must be linked to another power. It's utterly dependent on having another, valid power to support.

J.

"Cigarettes are the only product that, when used precisely as intended, will kill you."

This is simply not correct. Don't fall for the lies.

Just, which is the falsehood? That cigarettes will kill you, or that there are other products that will?

I stand by the former. I'd like to hear if you can contradict the latter.

J.

At first glance the "necessary and proper" clause seems to be an "after the fact" kind of thing, i.e., now that Obamacare is a law, they could argue that it is now necessary and proper....

JT - you are correct. Example, the government has the power to declare war - therefore it must also have the power to raise an army and navy.

Actually, you have a better argument with the welfare than you do with ObamaCare. Under the regime of your scenario, government would be saying, if you want welfare, you must forgo smoking. Or, only non-smokers are eligible to collect welfare. That would probably be constitutional, since smoking is not an enumerated right. It would be tougher to make the ban on procreation work, though.

Cigarettes are the only product that, when used precisely as intended, will kill you.

That is an extreme exaggeration. While some smokers will die from illnesses likely caused by smoking, it does not have a 100% mortality rate. Some smokers will die because they get hit by a truck. Or, falling from a high place. Or, struck by lightning. Or, an illness that was not caused by their smoking. Or, peacefully in their bed from old age. Etc.

I would also point out, you are trying to argue with nanny-staters that they should be against ObamaCare because otherwise the same logic can be used for other things. And then you go and list some other things that are just fine with the Progressives. Smoking? They already hate it, and have no problem with rules that impose their will on others. Mandatory birth control? Just give them a chance Margaret Sanger was there before the Chinese communists. If you give them enough play, they will get to that too.

Jay Tea:

The arguments, both pro and con, are not hard to find. If you haven't seen the argument raised, then you're in a forum where people don't understand constitutional law. I'm sorry if that sounds arrogant, but that's also where Obamacare's constitutionality will likely be decided.

I personally think the individual mandate can pass constitutional muster under the Necessary and Proper Clause (though perhaps not under portions of the Constitution), but I also acknowledge there is case law that points the other direction. The jurisprudence here gets really, really arcane, and I don't know enough about it to assess the issue definitively.

You know, the real irony is that a single-payer system would more likely pass constitutional muster than the Obamacare bill ...

OK, I've done some thinking about it, and I think I have one Constitutional argument against my idea: the Equal Protection clause. It can be argued that imposing these restrictions on the freedoms of certain people based solely on their seeking public assistance is discriminatory.

I dunno if that would work, but it's arguable.

And Anon: since no liberals have chimed in, I'll offer an argument vis-a-vis birth control: it goes against the whole "reproductive choice" idea, by denying those women the right to choose whether or not to have children. It's coming at it from the opposite direction that they're used to fighting, but if they want to be consistent, they gotta take it up.

J.

James H,

Can we now declare that it is neccessary for the good of the nation to buy GM cars? Perhaps we should fine (or tax as the dems are saying now that they have to defend it in court) everyone who buys anything else?

If forcing people to buy insurance is found under the neccessary and proper clause then nothing is excluded and the government can dictate to us every minutae of our lives. You may scoff at it now but if that is the decision then there is no barrier and no limit on what they can force upon us.

Necessary and proper was intended to mean that congress could pass laws that were necessary and proper to enforce congress's constitutional obligations. To declare that forcing people to buy insurance is constitutional by the necessary and proper clause is to avoid entirely the question of whether it is constitutional. There is nothing in that claim which substantiates why it is necessary or proper.

They already restrict who is allowed in public housing. If a kid live with his grandma and gets into trouble with drugs, they can require her to not let the kid live with her anymore, or kick her out if she refuses to comply. Smoking is not recognized as a right, so the courts are not going to protect someone who says he has a right to collect welfare and smoke if the rules say he can't.

Plus... The Michigan Judge's decision said that obamacare is constitutional based on the commerce clause and that a decision not to buy insurance is "an economic decision" and therefore covered by the commerce clause. However, this reading of the commerce clause also would render it so broad as to include all human activity. There would be no limit to what the government could force people to do or not do based on the reading.

Previously laws have only regulated people alraedy engaged in economic activity. Obamacare would cross the line to regulating people not engaged in economic activity and say that government has unlimited right to regulate whether or not they engaged in any particular economic activity and how and to what extend they engaged in it.

Whether you like the idea of obamacare or not the law as written is a direct assault on our basic freedoms. Perhaps if the dems had bothered to think it our or get bipartisan input (they refused to do both) they would have produced a bill that accomplishes their aims without stripping us of our freedoms. As it stands in order to defend their new law they will have to destroy any protection of individual rights in this country. I am certain that the government will have no problem defending itself and stripping us of our rights. Certainly obama will lose no sleep over it.

smoking may not be a right, but it is not illegal. As such the government would have a hard time prohibiting people from engaging in legitimate, legal activities in order to receive public aid.

Now you could ban it from government owned buildings and people could be required to go outside to smoke, but you cannot prohibit them from smoking anywhere at anytime.

No doubt the lefties would love to get a court to sign on to a ruling that the government could direct your activities in such a way. Well actually, obamacare is just the law that the court will make that decision on.

Jim M:

Read the arguments raised at the links above, then tell me what you think.

Jay, I am going to guess this happened over at dailykos.com; when are you going to let us know your username over there so we can look you up?

the Commerce Clause gives the government the right to control any activity (or refusal to engage in an activity) that might affect interstate commerce

Let's take this thought a bit further. How many children you have, how smart the kids are, how much resources you have to bring them up, etc all affect interstate commerce. So logically the government should decide who you marry (to optimize, ask any breeder about the benefits of selective breeding), how many children you have (obviously we should be using our smartest women as brood mares to maximize the number of smart children) and your pay check should go straight to the government so that they can optimize what you spend collectively (aka taxes) and individually (no reason to be greedy and inefficient spending it how you wish).

Of course this is the proper liberal basis for being against gay marriages (obviously there are limits to procreation in gay marriage).

The key to refuting these sorts of arguments is to take the same justification and turn it to doing what they don't want to see happen. Only then do liberals start to get the idea that a government big enough to give them what they want is also big enough to give them what they don't want.

As I under stand the Commerce Clause, it regulates interstate commercial activity.

That is activity freely engaged in. A conscious decision was made to "get in the game".

Now the government wants to impose it's will on you if YOU REFUSE to engage in said activity.

And as far as health care insurance goes, insurers are PRECLUDED under current state and federal law from engaging in INTERSTATE commerce.

So which came first, the chicken or the egg?

It is necessary and proper that government control of individual lives be lessened in the case of individual behavior that is self destructive. BarryCare is an obvious over reach by government officials lusting for more power over the masses. Not to far down the road will be necessary and proper ID chips to buy and sell everything.

Very close, I know.

I checked out those links, James. Seriously, if that is really teh case history on how "necessary and proper" is interpreted, then i can understand even more the whole "first, kill all of the lawyers" shtick.

a clear, and common sense, reading of the constitution clearly makes "necessary and proper" an enabling authority, as jay said. if the judicial branch is ruling otherwise, we obviously need better judges.

why is it that lawyers and judges never just take what is written in the constitution at face value? if i was a judge, i would strike down the health care law with prejudice.

Garand -- Interstate commerce in health insurance happens all the time, particularly now that companies like Wellpoint and United Healthcare have bought out a number of the smaller insurers that used to insure people at the local level.

That said, I would be far more comfortable with this kind of policy implemented at the state level. At least there, there's firmer constitutional ground for a health insurance mandate.

James H - still not buying that a citizen has a DUTY to purchase a product simply because they are a citizen and are alive. And not only shall you purchase the product, but you will purchase what the government specifies.

Guess I'll declare myself an 'illegal alien'. Lord knows the government isn't overly concerned about their violations of law.

"Garand -- Interstate commerce in health insurance happens all the time, particularly now that companies like Wellpoint and United Healthcare have bought out a number of the smaller insurers that used to insure people at the local level."

Yes and No on that one. Insurance regulations essentially bar the pooling of individuals across state lines. Insurers therefore have an intrastate presence within each state they do business in. You may have BCBS insurance but it is through your local BCBS association.

I go back to my comments about this broadening the understanding of both the commerce clause as well as the necessary and proper. If this is commerce then everything you do can be construed as commerce and everything within a given state ultimately effects what happens in others so with this case we will obliterate both the idea that by inaction you are not engaged in commerce and that congress can construe virtually anything as being "necessary" under the necessary and proper clause.

I would agree with the one comment in your links James that the one author trying to distinguish between what is necessary and what is proper is wrong. I don't think that one can draw a distinction legally between the two. However I don't think that is required to understand that this law challenges the security of our freedoms. If we lose this case we have lost our freedoms irrevocably.

gt, it wasn't Kos, but over at that sewer I'm "Jay Tea." I'm rather unimaginative -- I'm "Jay Tea" or "Jay Tea NH" or some variant thereof most places I need to register an ID.

J.

Democrats: Alwaysw inventing "Emanations" of "
Penumbra's" of a text to make it say things it quite plainly doesn't say and sometimes to even make it say the EXACT OPPOSITE of what it actually says. How in the he** is Healthcare one of the FOREGOING POWERS?

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the [b]foregoing Powers[/B], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Foregoing powers. As in the powers SPECIFICALLY MENTIONED in the constitution. Not "Whatever powers we want to make up and claim lie in emanations of penumbras" of the constitution.