Is Obamacare still unconst?

Originally posted by whodey
One thing I've realized is that the rule of law is meaningless, unless their is the will to enforce it. There is no will to overturn Obamacare anywhere in Washington, despite what the GOP may say.

From the GOP's point of view, Obamacare is good for one thing, mudslinging. The legislation is an obvious train wreck and will be good for years to come making mud pies. In addition, it will enrich their corporate cronies as they set our tax rates.

Originally posted by KazetNagorra
Yes, maybe the Constitution should be changed as to provide the voter with more choices, won't you agree?

Originally posted by moon1969
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.

Originally posted by no1marauder
From a conservative legal commentator in the Wall Street Journal:

It's also inaccurate to say that the court's opinion upholding ObamaCare opened the door to an Origination Clause challenge...

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 ...[text shortened]... .wsj.com/article/SB10001424127887323901604578159431428593260.html?mod=djemBestOfTheWeb_h[/b]

Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U.S. 266, 275, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.

McDonald v. Chicago, (Scalia, J., concurring).

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl- ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990) . We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

...

The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union. Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most im- portant ones, for which reason they alone were embod- ied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

NFIB v. Sebelius, (Joint Dissent).

Originally posted by no1marauder
From a conservative legal commentator in the Wall Street Journal:

http://online.wsj.com/article/SB10001424127887323901604578159431428593260.html?mod=djemBestOfTheWeb_h

If any act violates the Origination Clause, it would seem to be the Affordable Care Act.  The Supreme Court has never approved the “strike-and-replace” procedure the Congress employed here.  This challenge might be a good opportunity to discover whether the Origination Clause is part of the “Lost Constitution,” or whether it is still a part of the written Constitution that Congress must obey and the Courts will enforce. It seems an easy enough rule to follow and pass judgment upon.  So we will see.

http://www.volokh.com/2012/09/13/new-obamacare-challenge-the-origination-clause/

Originally posted by moon1969
Obamacare will be with us for generations and will become part of our culture. Here to stay for good.

Originally posted by MoneyManMike
I noticed how you invoked the fallacious appeal to authority by labeling James Taranto a conservative [b]legal commentator, what ever that means. I don't know why you think the conservative part was worth mentioning. Are you implying that so called conservatives accept other so called conservatives' arguments hook, line, and sinker a ...[text shortened]... e.

http://www.volokh.com/2012/09/13/new-obamacare-challenge-the-origination-clause/[/quote][/b]

Originally posted by MoneyManMike
By saying that Obamacare "will become part of our culture," you seem to be conceding that it isn't part of our culture right now. That is an interesting revelation. You seem to be conceding that Obamacare is unprecedented. That is to say, Obamacare isn't "rooted in our Nation's history and traditions." You know what Moon, I agree with you. O ...[text shortened]... friends better watch out for potential Substantive Due Process challenges in the future.

Originally posted by MoneyManMike
Although it is true that Scalia argued that origination questions are non-justiciable in his Munoz-Flores concurrence, Scalia has always been amenable to using legal doctrines that he disagrees with after the door has been opened. For example, Scalia disagrees with Substantive Due Process, yet he used it to apply the Second Amendment to the stat ...[text shortened]... that was opened in Munoz-Flores that origination issues are in fact justiciable.

Originally posted by no1marauder
So was Social Security. So was Medicare. So was etc. etc. etc.

In any event, the suit should be dismissed on procedural grounds; it was filed on July 26, 2010 and in its initial Complaint it never raised any Origination Clause issues.http://healthcarelawsuits.net/pdf/SisselvDHHS.pdf
Therefore, it has long since waived any such claim.

Originally posted by MoneyManMike
The so called Natural Law only applies when it is politically expedient for the No1PoliticalHack etc. etc. etc.

Originally posted by no1marauder
He writes for the WSJ and is on its editorial board, fool.

So you, Randy Barnett and all the other right wing clowns get to be wrong twice about this law.

Originally posted by MoneyManMike
Brilliant stuff. Truly newsworthy. Its as if you didn't already tell us that Taranto writes for the WSJ on page 2 of this thread. Give me a break...

Originally posted by no1marauder
In any event, the suit should be dismissed on procedural grounds; it was filed on July 26, 2010 and in its initial Complaint it never raised any Origination Clause issues.http://healthcarelawsuits.net/pdf/SisselvDHHS.pdf
Therefore, it has long since waived any such claim.