A couple of thoughts…

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Dave

Dave is a part-time blogger that writes about whatever suits him at the time.

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10 Responses

  1. Avatar Jaybird says:

    Allow me to put on the mantle of Wichard v. Filburn for a moment and ask you a chilling question:

    How would forcing 300,000,000 people to buy health insurance *NOT* have a significant effect upon Interstate Commerce and/or the General Welfare?Report

    • Avatar Jaybird says:

      I ask because it seems to me that the justifications given in Raich are not that Congress has the right to prevent a thing that has an impact upon Interstate Commerce but Congress has *JURISDICTION* over such things.

      Did I misread Stevens?Report

  2. Avatar kth says:

    It would be bizarre for a Justice to think it’s OK for the government to make you buy insurance from itself (i.e., Medicare, the expansion of which to the general population would be highly unlikely to result in a successful constitutional challenge), but not OK for the government to make you buy insurance from an insurance company. Surely the latter is less of a curtailment of individual liberty than the former would be.Report

    • Avatar Jaybird says:

      The question is not “does this take money from me that the government made possible for me to earn in the first place?” but “do you want children to die?”Report

  3. Good points and good post, Dave.Report

  4. Avatar fourthbranch says:

    We posted on the topic of originalism here:

    http://www.thefourthbranch.com/2009/12/the-trouble-with-original-intent/

    You might be interested in the discussion. We will also have a post up shortly on the constitutionality of the individual mandate. I think it most certainly is constitutional and can be structured as a tax (which are applied to groups who purchase certain items all the time- like cigarettes- so it isn’t a stretch to apply them to groups who don’t purchase a certain item). If that analysis gives people heartburn, imagine a tax on everyone with a tax deduction (available whether you itemize or not) for people who buy health insurance (effectively the same thing as taxing people for failing to buy insurance). This is analogous to taxing non-homeowners (which is effectively what happens now).

    Check us out generally at http://www.thefourthbranch.comReport

  5. Avatar fourthbranch says:

    We posted on the topic of originalism generally at http://www.thefourthbranch.com/2009/12/the-trouble-with-original-intent/

    We will also have a post up shortly on the specific question as to whether the individual mandate is constitutional (we conclude it is, and don’t view it as a particularly close call).Report

    • Avatar Dave says:

      Fourthbranch,

      I’ve read your post on originalism and I enjoyed it. At some point, when there’s time, I may try to write a response to it. You and I are on the same page with respect to original intent but there’s a lot of room to discuss originalism as it is most likely recognized (at least amongst legal academics).Report