24 May 13
Originally posted by MoneyManMikeFrom a conservative legal commentator in the Wall Street Journal:
Almost a year ago, the US Supreme Court upheld Obamacare's Individual Mandate as a valid exercise of Congress's taxing power. NFIB v. Sebelius. The Supreme Court's holding, however, has raised a new question. Because the Individual Mandate is a tax, did Congress follow the necessary Constitutional procedures required before certain tax bills c ...[text shortened]... onald[/i]. Sorry Stevens, the Constitution means what it says!
It's also inaccurate to say that the court's opinion upholding ObamaCare opened the door to an Origination Clause challenge. For the law contains many other taxes--including a Medicare levy on investment income and excise taxes on such things as medical devices and tanning salons--which Congress knowingly enacted as taxes for the purpose of raising revenue. And Congress did, however unrealistically, foresee a surplus. It's still far from clear that ObamaCare was a "Bill for raising Revenue," since its main purpose was to remake the health insurance market. But these other taxes, not the mandate, provide the strongest argument that it was.
Even if we assume ObamaCare was a "Bill for raising Revenue," there's one further problem. Although it's true that the version of the law that was finally enacted passed the Senate before the House, it was, as Pacific Legal notes in its pleading, styled a "House Resolution." Here's what happened (citations omitted):
In September, 2009, the House unanimously passed H.R. 3590, entitled the "Service Members Home Ownership Tax Act of 2009." The bill would have "amend[ed] the Internal Revenue Code of 1986 to modify first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees"; H.R. 3590 had nothing to do with health insurance reform. In November of that year, the Senate "amended" the House bill by gutting its contents, replacing those contents with health-insurance reforms (including the purchase requirement and associated payment), and renaming the bill the "Patient Protection and Affordable Care Act." The Senate's purported amendment resulted in the Affordable Care Act that became law.
This procedural dodge is known as a "shell bill" and is designed precisely to evade Origination Clause challenges. Pacific Legal notes in a press release that "the Supreme Court has never ruled on whether such a gut and switch ploy is constitutional." But the law at issue in Munoz-Flores was enacted in the same way, and one justice argued in a concurring opinion that that was sufficient to pass constitutional muster under the Origination Clause:
The enrolled bill's indication of its House of origin establishes that fact as officially and authoritatively as it establishes the fact that its recited text was adopted by both Houses. . . . We should no more gainsay Congress' official assertion of the origin of a bill than we would gainsay its official assertion that the bill was passed by the requisite quorum, or any more than Congress or the President would gainsay the official assertion of this Court that a judgment was duly considered and approved by our majority vote. Mutual regard between the coordinate branches, and the interest of certainty, both demand that official representations regarding such matters of internal process be accepted at face value.
That justice was Antonin Scalia, one of the four dissenters in NFIB v. Sebelius. There is every reason to think the Origination Clause will not save us from ObamaCare.
http://online.wsj.com/article/SB10001424127887323901604578159431428593260.html?mod=djemBestOfTheWeb_h
24 May 13
Originally posted by KazetNagorraI don't think the two party system is in the Constitution. Perhaps you can show me exactly what part of the Constitution you are talking about.
Yes, maybe the Constitution should be changed as to provide the voter with more choices, won't you agree?
24 May 13
1 edit
Originally posted by no1marauderStop being a presumptuous ignoramus. I wasn't talking about the NFIB plaintiffs. Rather, I was talking about the plaintiffs from three or more cases currently litigating the issue in federal court. See, e.g., Sissel v. U.S. Department of Health and Human Services.
In any event, plaintiffs did not raise this issue in any Court in the litigation and the government did argue the "tax" rationale. Thus, any such objection was waived.
Civil Pro 101, MMM.
http://www.youtube.com/watch?feature=player_detailpage&v=npCY8yDEXNA#t=177s
24 May 13
Originally posted by MoneyManMikeStop being some imprecise in your terminology and failing to provide meaningful links. Your first post mentions NFIB and repeatedly refers to the "plaintiffs". In a later post, you use a lengthy unattributed cut and paste without referring to another case. My mind reading skills don't work well with so little mind to operate on.
Stop being a presumptuous ignoramus. I wasn't talking about the NFIB plaintiffs. Rather, I was talking about the plaintiffs from three or more cases currently litigating the issue in federal court. See, e.g., Sissel v. U.S. Department of Health and Human Services.
http://www.youtube.com/watch?v=AP8jIxRQDSQ
http://www.youtube.com/watch?feature=player_detailpage&v=npCY8yDEXNA#t=177s
29 May 13
1 edit
Originally posted by EladarTrue.
As long as the Supreme Court does not declare it unconstitutional, it is Constitutional.
As long as they have actually considered and upheld the law (did not strike down the law).
A law that has never been subjected to judicial review may be unconstitutional even though the Court has never declared it unconstitutional. In other words, while there should be deference to Congress and majority rule, it should not be presumed that every law Congress enacts is constitutional without question. For one, while they have a good track record, it is not unblemished.
But I get your point. The Supreme Court is the ultimate arbiter of the Constitution, and the decide what the Constitution means and have the final say on what laws are constitutional/unconstitutional.
29 May 13
Originally posted by EladarAFAIK (but I don't know the Constitution in detail) it does not prescribe a two-party system; however, it gives States the freedom to implement such systems by allowing them to use district systems. It would be better if the Constitution mandated a multi-party system through forcing States to elect their HoR and Senate members through proportional representation (or better still, elect all national politicians nationally).
I don't think the two party system is in the Constitution. Perhaps you can show me exactly what part of the Constitution you are talking about.
29 May 13
Originally posted by KazetNagorraAmend the Constitution to be a parliamentarian system. Of course, would never happen.
AFAIK (but I don't know the Constitution in detail) it does not prescribe a two-party system; however, it gives States the freedom to implement such systems by allowing them to use district systems. It would be better if the Constitution mandated a multi-party system through forcing States to elect their HoR and Senate members through proportional representation (or better still, elect all national politicians nationally).
By the way, the two=party system has it's advantages.
29 May 13
Originally posted by moon1969Sure. The main advantage is that it tends to result in stable governments, because there tends to be little in-fighting in a one-party government. However, the lack of accountability tends to drive up corruption and because minority voices carry little weight the will of the people is not effectively enforced.
Amend the Constitution to be a parliamentarian system. Of course, would never happen.
By the way, the two=party system has it's advantages.
29 May 13
2 edits
I do not think it is necessarily such a bad thing that very small minorities at the freakish fringe ends have little impact or influence, and typically can't significantly hinder the majority generally.
Yet, interestingly, the freakish fringe right at the very end of the spectrum next to the cliff about to fall off, have come to dominate the Republican Party. Of course they get the bulk of their support from the sizable portion of the population who are religious fundamentalists. Fundamentalists brainwashed and ignorant, and voting Republican against their personal economic interest because the Republican candidate is a "good Christian man" and the opposing Democrat candidate is a "heathen." You don't know how many times I have heard that.
29 May 13
Originally posted by moon1969Yeah, it's mainly libertarians and fiscally conservative, small-government proponents who get screwed currently, since they are forced to either vote Republican or throw away their vote.
I do not think it is necessarily such a bad thing that very small minorities at the freakish fringe ends have little impact or influence, and typically can't significantly hinder the majority generally.
Yet, interestingly, the freakish fringe right at the very end of the spectrum next to the cliff about to fall off, have come to dominate the Republican P ...[text shortened]... osing Democrat candidate is a "heathen." You don't know how many times I have heard that.
29 May 13
Originally posted by KazetNagorraYah, well that's your government dominated point of view! Why should a government document dictate anything? Why not simply allow people to decide for themselves? Oh yah, its because things run better when the government dictates how it is to be done.
AFAIK (but I don't know the Constitution in detail) it does not prescribe a two-party system; however, it gives States the freedom to implement such systems by allowing them to use district systems. It would be better if the Constitution mandated a multi-party system through forcing States to elect their HoR and Senate members through proportional representation (or better still, elect all national politicians nationally).
Yah, yah that's the ticket!
29 May 13
Originally posted by EladarAccording to that "logic", why have a constitution or any law at all?
Yah, well that's your government dominated point of view! Why should a government document dictate anything? Why not simply allow people to decide for themselves? Oh yah, its because things run better when the government dictates how it is to be done.
Yah, yah that's the ticket!
29 May 13
1 edit
Originally posted by whodeyYah, you kind of have to actually follow what the Constitution says for it to actually work. I think you can trace much of the evolution of the Federal power back to the invention of the income tax. Giving the government that much control over individuals helped to create the monster we see today.
Nope, cause it does not work.
I view the Constitution as a means of judging how corrupt government is when they violate it.