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| Source:The Nation- columnist David Cole. |
Source:FreeState MD
“What is at stake in the case challenging the constitutionality of the Affordable Care Act (ACA), scheduled for oral argument in the Supreme Court in March? The challengers maintain that the case is about fundamental liberty, specifically our freedom not to be compelled to purchase things we don’t want. But that frame, while undoubtedly appealing to the radical libertarian strain in the Tea Party, is misleading. In fact, the only “liberty” that would be protected by a victory for the challengers is the freedom of insurance companies to discriminate against sick people.
The case is principally focused on the “individual mandate,” the law’s requirement that people who are not insured and can afford health insurance must buy it or pay a tax penalty. The federal government is a government of limited powers, and although Congress has the power to regulate interstate commerce, the challengers concede, if it can force people to “enter into commerce” in order to regulate them, then its powers are in effect unlimited. The reason Congress has never imposed such a mandate, they maintain, is that the power does not properly exist.
The Supreme Court deems the issue sufficiently serious to schedule an almost unprecedented five and a half hours of oral argument (it usually schedules a single hour). But the argument against the law is remarkably flimsy. Two of the country’s most conservative judges, Jeffrey Sutton of the Sixth Circuit and Laurence Silberman of the DC Circuit, were unable to find a valid argument against the law and voted to uphold it. Harvard law professor Charles Fried, Ronald Reagan’s solicitor general, has also said the law is plainly constitutional. It’s always dangerous to predict Supreme Court rulings on controversial cases, but if the Court applies its precedents faithfully, it should be a victory for the administration.”
From The Nation
The Welfare Clause:
"The United States Constitution contains two references to “the General Welfare”, one occurring in the Preamble and the other in the Taxing and Spending Clause. The U.S. Supreme Court has held the mention of the clause in the Preamble to the U.S. Constitution “has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”[3][4]
The Supreme Court held the understanding of the General Welfare Clause contained in the Taxing and Spending Clause adheres to the construction given it by Associate Justice Joseph Story in his 1833 Commentaries on the Constitution of the United States.[5][6] Justice Story concluded that the General Welfare Clause is not a grant of general legislative power,[5][7] but a qualification on the taxing power[5][8][9] which includes within it a federal power to spend federal revenues on matters of general interest to the federal government.[5][10][11] The Court described Justice Story’s view as the “Hamiltonian position”,[5] as Alexander Hamilton had elaborated his view of the taxing and spending powers in his 1791 Report on Manufactures. Story, however, attributes the position’s initial appearance to Thomas Jefferson, in his Opinion on the Bank of the United States.[12]
These clauses in the U.S. Constitution are an atypical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government.”
From Wikipedia
Commerce Clause:
"The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.[1] It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause,[2] and the Indian Commerce Clause.
Dispute exists within the courts as to the range of powers granted to Congress by the Commerce Clause. As noted below, it is often paired with the Necessary and Proper Clause, and the combination used to take a more broad, expansive perspective of these powers. However, the effect of the Commerce Clause has varied significantly depending on the U.S. Supreme Court’s interpretation.[citation needed]
During the Marshall Court era (1801–1835), interpretation of the Commerce Clause gave Congress jurisdiction over numerous aspects of intrastate and interstate commerce as well as activity that had traditionally been regarded not to be commerce. Starting in 1937, following the end of the Lochner era, the use of the Commerce Clause by Congress to authorize federal control of economic matters became effectively unlimited. Since United States v. Lopez (1995), congressional use of the Commerce Clause has become slightly restricted again to be limited to matters of trade or any other form of restricted area (whether interstate or not) and production (whether commercial or not).[citation needed]
The Commerce Clause is the source of federal drug prohibition laws under the Controlled Substances Act. In a 2005 medical marijuana case, Gonzales v. Raich, the U.S. Supreme Court rejected the argument that the ban on growing medical marijuana for personal use exceeded the powers of Congress under the Commerce Clause. Even if no goods were sold or transported across state lines, the Court found that there could be an indirect effect on interstate commerce and relied heavily on a New Deal case, Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops because the aggregate effect of individual consumption could have an indirect effect on interstate commerce.”
From Wikipedia
I’m honest enough to tell my readers that I’m not a lawyer and nor do I play one either on TV or online. But to me the debate about the 2010 Affordable Care Act is not a debate about whether the law is a good law or not. That’s not for the courts, including the U.S. Supreme Court to decide. The debate is about whether the ACA is constitutional or not. The people, the President of the United States, and Congress get to decide if the law is good or bad and whether it should stay in place or not. Not unelected judges, including the U.S. Supreme Court.
To me again as as non-lawyer, I believe the ACA is clearly constitutional under at least two sections of the U.S. Constitution: the Welfare Clause and the Commerce Clause:
The U.S. Government obviously has a role to look after the welfare of the country. Not run our lives for us, but to see to it that everyone’s basic needs are met and even help people in need who can’t help themselves. Otherwise what’s the point in having a Federal Government if can’t look after the welfare, as well as to protect the defend the country?
And as much as leftists (democratic and otherwise) might hate hearing this, health care and health insurance is a commodity. It’s something that people buy on the market in America. And under the Commerce Clause, the Federal Government has a role in regulating commerce in America.
So you might not like the ACA or you might love it, or you are like me and wish the law went further with a public option for Medicare, but this is not about the quality of the law, but about the constitutionality of it. If you don’t like the law, you can always lobby Congress with your First Amendment right to get the law either repealed or amended. But the U.S. Supreme Court can’t throw out laws simply because they don’t like them. Only when they believe they are unconstitutional.
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