The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers
The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.
“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.ROMNEYCARE PROVES THIS WRONG BECAUSE ROMNEYCARE PROVES THAT STATES HAVE THE POWER AND MEANS TO COVER THE UNINSURED IF THEY SO CHOOSE; THEREFORE A FEDERAL INTERVENTION IS NOT "NECESSARY".
LAWYERS CLEMENT AND CARVIN ARE WELL AWARE OF THIS AND HAVE MENTIONED IT IN TELEVISED DEBATES WITH THE OBAMACARE LAWYERS:
... Here's a full video of the debate:
MORE VIDEOS HERE.
12 comments:
This reading of "necessary and proper" is purposely misleading. The fact that a state may be competent to enact a similar law does not prevent Congress from overriding state law with federal law.
Many states had child labor laws in place before federal child labor laws. The same is true for drug prohibition, taxes, or environmental law.
Your analysis is bad, and you should feel bad.
you should watch the video and then suck my dick.
child labors laws weren't enacted based on necessary and proper and they didn't levy a tax or mandate a purchase.
suck my ass.
many federal laws are unconstitutional.
like: roe v wade.
blackmun decided based on extra-constitutional extra-legal facts not constitutional law.
he went to the mayo clinic and did research into viability and used that as part of his decision.
all in woodward's book on the scotus.
remember:
we are SUPPOSED to be a federal government of limited and defined and PROSCRIBED powers with all other powers being left to the people or the states.
obamacare violates that.
oh and one more thing:
suck my dick.
Blackmun will always be remembered as the author of Roe v. Wade. The Court, in a 7-2 vote, held that states violated the right to privacy, as embedded in the due process clause of the 14th Amendment, in limiting or barring abortions. Blackmun spent much of the summer of 1972 at the Mayo Clinic's library, undertaking research regarding the issue of abortion.
http://www.michaelariens.com/ConLaw/justices/blackmun.htm
ustices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. White wrote:
I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.[34][35]
White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."
Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed:
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.[36][37][38]
From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."
wiki
Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate
Gary Lawson & David B. Kopel, Tuesday, 08 November 2011 [View as PDF]
In Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, Professor Andrew Koppelman argues that the individual mandate in the Patient Protection and Affordable Care Act is constitutionally authorized by the Necessary and Proper Clause. This view is fundamentally wrong. The Necessary and Proper Clause is based on eighteenth-century agency law, including the fundamental agency doctrine of principals and incidents. Accordingly, the Clause only allows Congress to exercise powers that are incident to—meaning subordinate to or less “worthy” than—its principal enumerated powers. The power to compel private persons to engage in commercial transactions with other private persons is not an incidental power. Thus, the mandate is not authorized by the Necessary and Proper Clause, whether or not such a power is “necessary and proper for carrying into Execution” other powers. In addition, eighteenth-century public law carried administrative law principles—including the fiduciary norms at the heart of agency law—into delegations of power to political actors. One of the most basic of these fiduciary norms is the obligation to treat multiple principals equally. That equal treatment requirement is violated by the individual mandate, which compels transactions with a favored oligopoly of insurance companies. In short, the mandate is not an exercise of incidental power within the scope of the Necessary and Proper Clause, nor is the mandate “proper.”
http://yalelawjournal.org/the-yale-law-journal-pocket-part/supreme-court/bad-news-for-professor-koppelman:-the-incidental-unconstitutionality-of-the-individual-mandate/
LEFTIST RATIONALE:
THERE 50 MILLION UNINSURED ACCORDING TO THE SOCIALISTS.
(A WILD EXAGGERATION... BUT LET'S GO ON...)
OBAMACARE SAYS NO DISCRIMINATION AGAINST PREEXISTING CONDITIONS.
AND EVERYONE HAS TO BUY SOME INSURANCE OR PAY A PENALTY.
NO MORE "FREE-RIDERS".
ROMNEYCARE DOES THIS AT THE STATE LEVEL, ERGO THERE IS NO NEED FOR OBAMACARE/THE FEDS TO DO IT.
45 MINUTE MARK PRO-OBAMACARE LAWYER ARGUES THAT IT HAS TO BE SOLVED BY THE FEDS BECAUSE IT'S AN INTERSTATE PROBLEM, BUT ROMNEYCARE PROVES THAT STATES CAN DEAL WITH IT.
ANSWER IN PART AT 51 MINUTE ARK BY THE BRILLIANT CARVIN
1 HR MARK:
CARVIN SAYS ROMNEYCARE PROVES MY POINT.
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