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" Reporting from Washington - Lawsuits from 14 states challenging the constitutionality of the new national healthcare law face an uphill battle, largely due to a far-reaching Supreme Court ruling in 2005 that upheld federal restrictions on home-grown marijuana in California.

At issue in that case -- just like in the upcoming challenges to the healthcare overhaul -- was the reach of the federal government's power.

Conservative Justices Antonin Scalia and Anthony M. Kennedy joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.

They said the Constitution gave Congress nearly unlimited power to regulate the marketplace as part of its authority "to regulate commerce."

Even "noneconomic local activity" can come under federal regulation if it is "a necessary part of a more general regulation of interstate commerce," Scalia wrote.

The decision throws up a significant hurdle for the lawsuit filed last week in federal court by 13 state attorneys -- all but one a Republican. The Virginia attorney general filed a similar, but separate suit.

The suits claim that the federal government has no right to force individuals to have health insurance -- a central provision of the new healthcare law.

"By imposing such a mandate, the act exceeds the powers of the United States under Article I of the Constitution," according to the suit from the 13 states.

But this week, Obama administration lawyers pointed to Scalia's opinion as supporting the constitutionality of broad federal regulation of health insurance, and most legal experts agreed."

Whether the Federal Government can regulate healthcare is a seperate issue from whether the Federal Government can mandate that individuals enter in to a private contract with an insurance company.

The latter is unprecedented, and if the courts rule that the Fed does have that power, there is virtually nothing the Feds can't force citizens to do.

(03-27-2010 12:04 PM)Byrdy Wrote: [ -> ]Whether the Federal Government can regulate healthcare is a seperate issue from whether the Federal Government can mandate that individuals enter in to a private contract with an insurance company.

The latter is unprecedented, and if the courts rule that the Fed does have that power, there is virtually nothing the Feds can't force citizens to do.

+1,000. Also at issue is whether the federal government can force state governments to fund federal programs. If the court rules in favor of the states, it's going to effect a whole gaggle of programs already in place.

"Attorney General Thurbert Baker told Gov. Sonny Perdue on Wednesday he will not file a federal lawsuit to block federal health care reform legislation signed into law this week.

Baker, a Democrat seeking his party’s nomination for governor, told the Republican Perdue that he was “unaware of any constitutional infirmities and do not think it would be prudent, legally or fiscally, to pursue such litigation. I must therefore respectfully decline your request.”

Perdue had asked Baker to join more than a dozen other attorneys general from around the country — all of whom are Republicans — to sue to block the federal legislation, which Perdue said will devastate the state budget due to increased Medicaid costs.

“I do not believe that Georgia has a viable legal claim against the United States,” Baker wrote.

His decision, he said, was based in part on the great expense a law suit would incur at a time of cratering state revenues.

“I cannot justify a decision to initiate expensive and time-consuming litigation that I believe has no legal merit,” Baker wrote. “In short, this litigation is likely to fail and will consume significant amounts of taxpayers’ hard-earned money in the process.”

Gold Dome Live
Baker to Perdue: No lawsuit over health care bill

12:27 pm March 24, 2010, by Aaron Gould Sheinin

Attorney General Thurbert Baker told Gov. Sonny Perdue on Wednesday he will not file a federal lawsuit to block federal health care reform legislation signed into law this week.

Baker, a Democrat seeking his party’s nomination for governor, told the Republican Perdue that he was “unaware of any constitutional infirmities and do not think it would be prudent, legally or fiscally, to pursue such litigation. I must therefore respectfully decline your request.”

Perdue had asked Baker to join more than a dozen other attorneys general from around the country — all of whom are Republicans — to sue to block the federal legislation, which Perdue said will devastate the state budget due to increased Medicaid costs.

“I do not believe that Georgia has a viable legal claim against the United States,” Baker wrote.

His decision, he said, was based in part on the great expense a law suit would incur at a time of cratering state revenues.

“I cannot justify a decision to initiate expensive and time-consuming litigation that I believe has no legal merit,” Baker wrote. “In short, this litigation is likely to fail and will consume significant amounts of taxpayers’ hard-earned money in the process.”

Legal scholars around the country have largely opined that the lawsuits by the states face steep odds as the courts have largely protected Congress’ ability to act in this manner."

http://blogs.ajc.com/gold-dome-live/2010...care-bill/

(03-27-2010 12:04 PM)Byrdy Wrote: [ -> ]Whether the Federal Government can regulate healthcare is a seperate issue from whether the Federal Government can mandate that individuals enter in to a private contract with an insurance company.

The latter is unprecedented, and if the courts rule that the Fed does have that power, there is virtually nothing the Feds can't force citizens to do.

Also MJ is a controlled dangerous substance covered by federal law, which might have factored into several SCOTUS Justices minds. I do not see the obstacle. In fact the Pubs offered an amendment in which insurance could be nationalized and sold across state lines and the democrats, unfortunately for them, voted it down. That vote confirmed that the selling of health insurance was a state run and controlled activity.

And then there is Byrdy's point of the unprecedented nature of compelling private citizens to purchase private insurance under the threat of fine.

BTW, the bill has a punitive fine, but also has a non-enforcement provision so no IRS agent may fine the person, may accrue interest on non-payment. I wonder how much income from fines which the government has no ability to collect reduced this monstrosity's cost. Congress' majority are lying sacks of dung!

(03-27-2010 12:04 PM)Byrdy Wrote: [ -> ]Whether the Federal Government can regulate healthcare is a seperate issue from whether the Federal Government can mandate that individuals enter in to a private contract with an insurance company.

The latter is unprecedented, and if the courts rule that the Fed does have that power, there is virtually nothing the Feds can't force citizens to do.

in a literal sense I would agree, however as a practical matter it is either this mandate that all individuals contribute to a privately-funded, business-run health care system, or else there will be a tax-funded, government-run system. At this point I'd say I'd prefer a individually-funded, business-run system instead of a tax-funded, government-run system. the alternative is another box on W-2's

(03-27-2010 04:54 PM)Tagterp Wrote: [ -> ]Also MJ is a controlled dangerous substance covered by federal law, which might have factored into several SCOTUS Justices minds.

Were you able to post that with a straight face?

(03-27-2010 06:58 PM)Supersport Wrote: [ -> ]in a literal sense I would agree, however as a practical matter it is either this mandate that all individuals contribute to a privately-funded, business-run health care system, or else there will be a tax-funded, government-run system. At this point I'd say I'd prefer a individually-funded, business-run system instead of a tax-funded, government-run system. the alternative is another box on W-2's

Congress could have instituted a tax increase to pay for it, or a tax credit for people who buy insurance. They chose not to do that 'cause the individual mandate makes the numbers look better. More shenanigans that will come back to haunt them.

"Critics of the new health insurance mandate often claim the Founding Fathers could never have envisioned the federal government telling individuals that they must take an action or buy a private product.

That, however, is not quite correct, experts said.

As one of its earliest actions, Congress passed the Militia Act of 1792, which was signed by President George Washington. It mandated that "each and every able-bodied white male citizen" must "be enrolled in the militia."

Hardly shy about imposing federal regulations on private citizens, the militia law said that each new recruit must show up within six months carrying "a good musket or firelock, a sufficient bayonet and belt, two spare flints, a knapsack [and] a pouch to contain not less than 24 cartridges suited to the bore of his musket or firelock."

Winkler also dismissed the argument that Congress cannot penalize someone for "doing nothing," such as not buying health insurance.

"If you don't believe me, just 'do nothing' this April 15 when your tax bill is due," he said."

http://www.latimes.com/features/health/l...&track=rss

(03-27-2010 07:25 PM)ChrisL68 Wrote: [ -> ]

(03-27-2010 04:54 PM)Tagterp Wrote: [ -> ]Also MJ is a controlled dangerous substance covered by federal law, which might have factored into several SCOTUS Justices minds.

Were you able to post that with a straight face?

Actually not. Who knows maybe some of the Judges are tokers!

(03-27-2010 09:14 PM)TimTerpT Wrote: [ -> ]"Critics of the new health insurance mandate often claim the Founding Fathers could never have envisioned the federal government telling individuals that they must take an action or buy a private product.

That, however, is not quite correct, experts said.

As one of its earliest actions, Congress passed the Militia Act of 1792, which was signed by President George Washington. It mandated that "each and every able-bodied white male citizen" must "be enrolled in the militia."

Hardly shy about imposing federal regulations on private citizens, the militia law said that each new recruit must show up within six months carrying "a good musket or firelock, a sufficient bayonet and belt, two spare flints, a knapsack [and] a pouch to contain not less than 24 cartridges suited to the bore of his musket or firelock."

Winkler also dismissed the argument that Congress cannot penalize someone for "doing nothing," such as not buying health insurance.

"If you don't believe me, just 'do nothing' this April 15 when your tax bill is due," he said."

http://www.latimes.com/features/health/l...&track=rss

That argument is a silly one. Summoned to the militia then was akin to being drafted more recently.

Winkler has not read the enforcement nullity in the bill, so he is not a credible source of any worthwhile input in the argument. The astute governor of Texas has read it and was talking about the nullity provision, which renders the penalty harmless and very easy to ignore. Remember Pelosi said "we have to pass it so that we can see what's in it!" Slowly we are seeing what is in it, and not surprising, it is crappola!

(03-27-2010 09:24 PM)Tagterp Wrote: [ -> ]

(03-27-2010 07:25 PM)ChrisL68 Wrote: [ -> ]

(03-27-2010 04:54 PM)Tagterp Wrote: [ -> ]Also MJ is a controlled dangerous substance covered by federal law, which might have factored into several SCOTUS Justices minds.

Were you able to post that with a straight face?

Actually not. Who knows maybe some of the Judges are tokers!

Couldn't blame the judges or anyone else. If I had to be in DC working with the Obama admin', I know I'd be token to get through it.

" "
Conservative legal scholars, other experts says bill is constitutional
Conservative law professor Adler: Supreme Court precedent would support constitutionality of mandate as part of "overarching regulatory scheme." In an August 22, 2009, blog post, Case Western Reserve Law professor Jonathan Adler stated that while he opposed Democratic health reform efforts, he could not support the argument that "neither the power to 'regulate commerce among the several states' nor the taxing and spending power could support" the health insurance mandate. He wrote:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

Adler is a contributing editor at National Review Online, a member of and has been honored by the Federalist Society, has worked for the Competitive Enterprise Institute, and is a member of the Cato Institute's Supreme Court Review Academic Advisory Board.
Opponent of individual mandate Kerr: "I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate."

In a blog post, George Washington University law professor Orin Kerr, who served as a special counsel to Sen. John Cornyn (R-TX) during Supreme Court Justice Sonia Sotomayor's confirmation proceedings, stated:

In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress's Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate.
Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don't like the individual mandate, (b) if I were a legislator, I wouldn't have voted for it, © I don't like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn't have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.
But with all of these caveats, I'll stand by my prediction."

http://mediamatters.org/research/201003240039

(03-27-2010 08:29 PM)Byrdy Wrote: [ -> ]

(03-27-2010 06:58 PM)Supersport Wrote: [ -> ]in a literal sense I would agree, however as a practical matter it is either this mandate that all individuals contribute to a privately-funded, business-run health care system, or else there will be a tax-funded, government-run system. At this point I'd say I'd prefer a individually-funded, business-run system instead of a tax-funded, government-run system. the alternative is another box on W-2's

Congress could have instituted a tax increase to pay for it, or a tax credit for people who buy insurance. They chose not to do that 'cause the individual mandate makes the numbers look better. More shenanigans that will come back to haunt them.

I haven't studied it at all but I heard a segment on NPR that said it is modeled after the MA law that has a penalty/tax if you fail to buy insurance, so you pay one way or the other