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Wednesday, June 27, 2012

The Real Affordable Care Act Battle: Constitutionalists vs. Confederates

When the Justices hand down their ruling, it will be a decisive moment in a debate stretching back to the Articles of Confederation and the nation's founding. 

By Tom Perriello
Jun 27 2012, 8:01 AM ET 

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When I was growing up in central Virginia, corner stores typically sold hats emblazoned with the Stars and Bars declaring "Lee Surrendered but I Didn't." I never imagined that five men in black robes might hand Confederates a victory through the Supreme Court that they could not win at the original Constitutional Convention nor later on the battlefields of the Civil War.
Yet we may be at that juncture today. As our country anxiously awaits the Supreme Court's verdict on health-care reform, the media has reduced the case to the narrow terms of a political horserace. This characterization ignores the enormous significance of this case -- a shift from the modern fight between liberal and conservative Constitutionalists back to an older and more nationally divisive debate between Constitutionalists and Confederates.
From the Articles of Confederation to the Constitution of the Confederate States of America to the Lochner-era Supreme Court, confederationists have long believed in a United States consisting of states loosely united by a small, weak central government, and they have fought for more than 230 years to prevent, undermine, and erode the Constitution. While the term "Confederate" rightly conjures up America's sin of slavery and the racially charged movements for states' rights and state nullification, the present-day confederationists include conservative libertarians and corporatists who support a central government too weak to regulate or tax commerce.
This vision of a tiny, powerless central government has always been at odds with the U.S. Constitution, a document our nation's founders wrote explicitly to reject and replace the Articles of Confederation. George Washington once wrote that the weakness of the Articles, which lacked the Constitution's power to tax and spend for the general welfare, almost cost us the Revolutionary War. Disconnected and self-interested, the states struggled to harness the unity and cooperation necessary to defeat a world superpower.
Confederationists have fought for more than 230 years to prevent, undermine, and erode the Constitution.
The Founders addressed this by writing a Constitution that empowered America to "legislate in all cases for the general interests of the Union." Since the Constitution's creation, American leaders have enjoyed the power necessary to solve national problems, whether those problems were a Depression in the 1930s, a system of racial apartheid in the 1960s, or a costly and inadequate healthcare system in 2010.
But the Confederate legacy also lives on. As Elizabeth Wydra of the Constitutional Accountability Center notes, "The Tea Party's version of the Constitution has far more in common with the failed Articles of Confederation ... than with our actual, enduring U.S. Constitution." The Articles famously lacked our Constitution's commerce power. Similarly, the Confederate Constitution stripped the federal government's authority to "provide for the ... general welfare," from provisions relating to taxation and eviscerated the interstate commerce clause. These limitations would have likely doomed not only the Affordable Care Act, but also major federal programs such as Medicare and Social Security.
For decades after the Civil War, big corporations saw the value of a confederationist vision of a weak central government. They aligned with confederationists in the early 20th century to create a Supreme Court that struck down minimum-wage laws, child-labor laws, and laws protecting workers' right to unionize. In the 1930s, confederationist justices struck down law after law intended to rescue America from the Great Depression. The Confederate Constitution's call for weak national regulations and racial oppression echoed again in the 1950s and 1960s. Alabama Governor and U.S. presidential candidate George Wallace famously based his anti-desegregation platform on the principle of states' rights, and after the Supreme Court's momentous ruling in Brown v. Board of Education, states throughout the South claimed they could simply ignore the order to integrate schools. When Congress enacted a ban on whites-only lunch counters, segregationists claimed the ban exceeded the federal government's authority. They lost, unanimously, in the Supreme Court.
Yet today's Supreme Court is moving toward the confederationist framework of protecting corporate interests. From its decision authorizing corporations to spend unlimited political money in the Citizens United case to its assaults on equal pay for women and job security for older workers, the Court's five conservatives have left no doubt about their willingness to obviate the commerce and general-welfare clauses of the Constitution to protect powerful corporate interests. It is worth noting that, throughout the last century, when the corporatist strand has conflicted with the state's-rights position -- from Lochner (in which the Court infamously overturned New York's public health regulations in 1905) to the current Court's reversal just this week of Montana's anti-corruption campaign-finance law -- the corporatist side has won.
Respected conservative constitutionalists have all but begged the Supreme Court to stay loyal to the document. Judge Laurence Silberman, a Reagan appointee who received the Presidential Medal of Freedom from President George W. Bush, warned that the case against the Affordable Care Act has no basis "in either the text of the Constitution or Supreme Court precedent." Judge J. Harvie Wilkinson III, a runner-up for the Supreme Court nomination that eventually went to Chief Justice John Roberts, warned that striking down health reform "is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off."
During his confirmation hearing, Chief Justice Roberts claimed the mantle of these conservative constitutionalists, as an umpire calling balls and strikes. But if he and the other four conservative justices overturn the Affordable Care Act, they will effectively be taking the umpire off the field. In historical context, this amounts not to a reinterpretation of the Constitution but rather its rejection. If the law is upheld, the real victory is not for President Obama but for that most durable of governing documents, the U.S. Constitution.

I was only going to post several comments but they were so good I could not resist... sorry about that and several have links in them.....
  • merfinderfin 6 hours ago
    "I predict the worst consequences from a half-starved, limping government, always moving upon crutches at every step. I do not conceive we can long exist as a nation without having lodged somewhere a power which will pervade the whole union in as energetic a manner as the authority of the state governments extends over the several states."
    Good old George Washington said that. In spite of whatever the Tea Party may claim, the founders always wanted a strong central government.
  • "Good old George Washington said that. In spite of whatever the Tea Party
    may claim, the founders always wanted a strong central government."
    Are you under the impression that you proved something? The federal government has become immeasurably stronger since George Washington said that.  He would be surprised and dismayed to see how much stronger the federal government is now. If we could transport him to today maybe he would agree that it was necessary for it to increase that much in size. But whatever he said back then doesn't matter.

  •  What, in your mind, is a reasonable size and role for the federal government then? I'm actually curious, and not trying to have a name-calling session.
  • With regard to the Commerce Clause, how about regulating citizens when they have chosen to engage in a form of  commerce which takes place among the several states, and not when they have refrained from that form of commerce ? 
  • Well, I would argue that health care is a special case in that at some point in our lives all of us will have to engage in it. If an uninsured person has a heart attack in the middle of the street, he's going to be taken to a hospital where he's going to incur $1,000s in costs. If he's too broke to pay it, then all of us taxpayers are on the hook for that money. There are several ways we can deal with that problem:
    a. we can repeal the laws that require hospitals to treat the uninsured
    b. we can insure all citizens through the government, or
    c. we can mandate that all citizens purchase health insurance, and that all insurance companies cover anyone who wants to purchase it.
    Is it an encroachment on liberty? Personally I don't see it that way. Is it a pain in the ass? Sure. So is filing income taxes. Most people don't regard that as tyranny.
  • A and B are constitutional approaches. C is not. The fact that the votes are harder to get for A and B does not make C legitimate. In fact, there was another alternative; simply pass a tax increase, with a corresponding tax credit equal to the penalty the ACA imposes. Again, our cowards in Congress did not want to simply take a straightforard approach, because being an incumbent is so, so, hard, so they instead cobbled together this mess. The fact that your Congressman doesn't want to work for a living doesn't make it constitutional for him to write laws any damned way that pleases him.
  • That's not something that I think can be adequately covered in the scope of a comments section, but my short answer is that my concern is the with the proper function of the federal government. I think it's national defense and diplomacy, preventing barriers to trade between states, establishing immigration and import/export policy (to the least extent possible), preventing states from infringing on the rights of citizens, and regulating those things which cannot be regulated at the state level.
    I recognize that the last one is subject to a whole lot of interpretation, but my sense is that the federal government is way too big at the size it is.
    A lot of the things done at the federal level can be done at the state level. Social Security and Medicare for example. I understand the arguments for why it should be done at the federal level, but then I frankly don't see what the point of having state government is at all.
  • "...What, in your mind, is a reasonable size and role for the federal government then? "
    How about this: the major function of government must be to protect our freedom both from the enemies outside our gates & from our fellow-citizens; to preserve the rule of law & civil order, to enforce private contracts, and to foster COMPETITIVE markets.
    Most of those that I encounter who want greater government centralization & control to do much more don't seem to understand or acknowledge that the power to do good is also the power to do harm.  Those who control the power today, may not tomorrow.  What one person regards as good,  another may regard as harm.
    Do any of these precepts resonate with you, or are they simply too little, too bland, or too milquetoast  for your taste?
  • How would a government foster competitive markets if it has no jurisdiction over such things? We currently have many monopolistic markets-set up with the assistance of government. Our current government could dismantle these if it chose to (but it currently likes monopolies). So just how would your states rights government protect the citizens from similarly constructed - by the states - protected monopolies?
  • " How about this: the major function of government must be to protect our
    freedom both from the enemies outside our gates & from our
    fellow-citizens; to preserve the rule of law & civil order, to
    enforce private contracts, and to foster COMPETITIVE markets."
    I agree wholeheartedly with your statement. I think government does very little to promote competitive markets though, and I think "protect our freedom from our fellow citizens" is open to a great deal of interpretation; I would like government to protect me from my citizens who practice unfair business dealings. Other people would like government to protect citizens who are business people.
    You also said this though:
    "Most of those that I encounter who want greater government
    centralization & control to do much more don't seem to understand or
    acknowledge that the power to do good is also the power to do harm.
     Those who control the power today, may not tomorrow.  What one person
    regards as good,  another may regard as harm."
    Most of the conservatives I encounter, while distrustful of the government in regard to business regulation or the delivery of mail, are at the same time enthusiastic supporters of giving the government vast police and military powers. Why, if you don't think the government can effectively regulate healthcare, would you think it could effectively field a huge military?
  •  It matters insomuch as it is not Liberals who so often claim to be "constitutionalists."  And a reading of the history of the framers indicates that many supported a strong federal government with wide reaching powers.  Even Jefferson, a famous skeptic of federal power, essentially lost his bet to Alexander Hamilton that he would grow to see the usefulness of a strong central government.  And indeed he did when he vastly increased to powers of the presidency during the Louisiana purchase and some of his other nationalist agendas.  That Washington would be "surprised and dismayed to see how much stronger the federal government is now" is convenient speculation, particularly if you are so eager to dismiss what the man himself is recorded to have believed.
  • Do you realize who you refer to when you say founders? Thomas Jefferson wanted a strong central government? Do people seek one person to base their opinions on? Washington was a mix of ideas. Mainly since his left and right men were Adams and Jefferson. Adams and Jefferson were two opposites in terms of ideas. It is absurd for you to say "In spite of whatever the Tea Party may claim, the founders always wanted a strong central government." Jefferson, might I add, who wrote the constitution would have never thought a government this strong. Jefferson sought to decentralize the ppwer of a few. The only reason Jefferson even ran for president was to oppose Adams. To balance the ideas of the political opposite. Jefferson's tomb stone reads his greatest accomplishments, President is not one of them.
  •  And maybe there's a lesson in what you've written there: the Founders embraced a variety of ideas regarding the size and function of government.  They balanced one another, and opposed one another, and still got things done.  Why can we not have healthy dissent today and still accomplish the work of government?
  • Quick correction: Thomas Jefferson did not write the Constitution, the Constitutional Convention of 1787 did. Thomas Jefferson was in Paris at the time of its drafting. However, his writings and political philosophy did exert considerable influence on the convention. James Madison (fourth president of U.S.) is generally regarded as "The Father of the Constitution." Similarly, the Declaration of Independence was written by the Continental Congress of 1776, but Jefferson is generally credited with being its primary author. It is also important to note that the Constitution has been amended several times by several legislative bodies not connected to the Constitutional Convention (in terms of being the same people, anyway). Carry on.
  • I stand corrected, and thank you. However, still does not change the other information provided. I dont get where the  before mentioned statement can fabricate from. Also Moderate213, I feel there was less corruption to contend with and less people in others pockets. Though I wish people would realize that no matter what the answer or the solution maybe for health care, why do we seek for government control of it? Can we not at least agree that everything that government intends to do left or right always gets tainted and fails to be for the greater good. Unintended consequences are numerous and some reason we seek for these men to make more decisions based on lies and corruption, but we live with it. Cause itll change next time. No matter who we elect it seems never ending. But back to the the post. I stand corrected and thank you. But as far as the above mentioned that created my post, How is it that the founders (a generalized term) can be for a strong central goevernment?
  • I also thank you for backing your correction with correct information, not an internet assualt. Thank you again.
    Did I mix the declaration with constitution?
  • There were no governments as strong or as centralized as the US government is today when Washington said that. He was thinking of some kind of self-defeating Athenian League kind of thing. He could never have imagined what modern technology could do to bring every aspect of the life of the citizenry under the watchful eye and ambit of government. There is no way in Hell he would argue that the government we have today is too weak and that represents a danger to the Republic.
  • In what ways is the federal government too strong? I live in a Northeastern state. Our laws are very different from the laws in, say, Florida. Generally, the only interaction I have with the federal government is on April 15 and when I need to renew my passport. And, OK, whenever I fly on an airplane. I would agree that the DHS is an example of Federal overreach.
  • Go and try to take $5,000 of your own money out of your own bank account. Heck, go and take out $1,000 on five consecutive days. Watch what happens.
  •  Ha! Unfortunately I've never been in the position of having $5,000 in one account that I could remove at once.
    So, what happens?
  • GrayFlannelDwarf 5 hours ago
    "I never imagined that five men in black robes might hand Confederates a victory through the Supreme Court that they could not win at the original Constitutional Convention nor later on the battlefields of the Civil War."
    Right -- because the rebel yell on battlefields of the Civil War was actually "No forced participation in interstate commerce!"
    I have no idea how the Court will rule tomorrow, but the near-hysteria that has been the run up to the decision is priceless.
  • and I thought Fallow's piece from earlier this week ( his "coup" post) set the standard in hyperventilating.
    Perriello has put forth a serious contender.   In his mind    -- setting any limits on Congress's use of the Commerce clause is the equivalent of :    "..... a tiny, powerless central government"good grief  
  • GrayFlannelDwarf 5 hours ago
    How is the Supreme Court's ruling on the Montana campaign finance case a victory for a loosely tied together confederation?
    If anything, the opposite outcome would have been a "confederate" win.
    After all -- the underlying premise is that the First Amendment is incorporated  and thus applies to the states equally (or at least near equally) as it does to the Federal Government.
    A ruling leaving the Montana statute intact would have permitted a greater patchwork of campaign finance laws -- each state having more or less restrictions as it saw fit -- that certainly seems more "confederate."
  • Because under a confederacy corporate rights still trump states' rights.
  • SHut up, you're messing with his (absurd) narrative!
  •  What a poorly debated article... if the government had positioned ACA as a tax, we wouldn't be having this discussion (why the entitlements mentioned are not a valid comparison).  If the government had pushed single payer, we wouldn't be having this discussion.  Instead, the government got cute and started mandating that private citizens buy a product.  The argument that it's simply a financing scheme is spurious at best - wouldn't the same be true of food, family planning for wills and trusts, the casket industry?  So where is the limit, exactly, of the commerce clause in a world with virtual everything?
    I believe in national health care co-existing as an option along with private insurance.  But to paint with the large brush that the commerce clause is an open-ended trump card goes rather against the Constitution I know.  Any sane person would take the founders and put them into today's world and say that the scope of federal power has far exceeded it's original definition - this is not a bad thing as our world has changed and our government with it.  But please don't say we are going back to the Articles of Confederation...  nothing but political hyperbole.
  • No one has claimed that the Commerce Clause is open ended.  What limits use of the Commerce Clause in a world with virtual everything (whatever that is)?  Common sense - you should try it sometime rather than being hyperbolic.
  • This is not correct. It's been the left-wing's opinion that basically anything that did not run afoul of a specific Constitutional protection was OK. Heck, Lopez was a5-4 decision, and it does run afoul of a specific Constitutional protection
  •  Read the opinion.
  • "So where is the limit, exactly, of the commerce clause in a world with virtual everything?"
    See, Lopez ( http://en.wikipedia.org/wiki/U... ) and Morrison ( http://en.wikipedia.org/wiki/U... )
  • Thanks for the link:
    "The Court essentially concluded that in no way was the carrying of
    handguns a commercial activity or even related to any sort of economic
    enterprise, even under the most extravagant definitions."
    &
    "It is important to note that although the ruling stopped a decades-long
    trend of inclusiveness under the commerce clause, it did not reverse any
    past ruling about the meaning of the clause."
    Glad that's cleared up... so now that we are clear on handguns not being a commercial activity,  I will take your comment about my "virtual everything" as a fair retort.   Your above link indicated that
    for >50 years, the powers of the commerce clause had only been
    expanded til Lopez, and that Lopez was uniquely defined.  So let's just
    agree that the scope of the commerce clause has vastly expanded in our
    lifetimes. 
    Let's see how the court rules tomorrow in forcing someone to enter into a private contract for a private good/service under the guise of the commerce clause.  And if struck down, perhaps this will lead to a more honest discussion of what health care should be in our nation, how costs can be managed and service provided.  Something everyone can agree on is we spend way more per person on health care than any other nation in the world (http://www.kff.org/insurance/s... with little results in overall health, life expectancy, infant mortality, etc.
  • RoughAcres 5 hours ago
    "Elsewhere on the Web" is shorthand for "propaganda presented as 'news' by special interests such as Bank of America or on corporate sites like Newsmax."
    Forewarned is forearmed.
  • DuckingAndCovering 5 hours ago
    Nobody.
    Is saying.
    That the Feds can't create a national healthcare program.
    They can. They already have. Two of them, in fact. It is not a challenge to the general notion of the Federal government as "strong and central" as opposed to "weak and divided" to say that the otherwise general omnipotence of the Federal government stops at forcing citizens to enter into unwanted commercial transactions with other private citizens. It is a fundamentally different thing to say "If you want to enter into the stream of commerce, you will do so according to our rules" than to say "You will enter into the stream of commerce, want to or not, and you will do it according to our rules."
    Once you realize that, all your melodramatic nonsense about modern-day Confederates coming to destroy the Union isn't just refuted, it's irrelevant.
  • Cool, so that means that we can have universal single-payer health care?  Sign me up.
  • We absolutely could and it would be totally constitutional. At least, for most current understandings of what comprises totally constitutional.
  • Yes, all you need is the votes in Congress, and the President's signature. Heck, get enough votes in Congress, and you don't even need the President's signature!
    Happy to help.
  • Check this out:  10 Things You Would Miss About Obamacare
    1) Access to health insurance for 30 million Americans and lower premiums. More than 30 million uninsured Americans will find coverage under the law. Middle-class families who buy health care coverage through the exchanges will be eligible for refundable and advanceable premium credits and cost-sharing subsidies to ensure that the coverage they have
    is affordable.
    2) The ability of businesses and individuals to purchase comprehensive coverage from a regulated marketplace. The law creates new marketplaces for individuals and small businesses to compare and purchase comprehensive coverage. Insurers will have to meet quality measures to ensure that Americans can access comprehensive coverage when they need it.
    3) Insurers’ inability to discriminate against people with pre-existing conditions. Beginning in 2014, insurers can no longer deny insurance to families or individuals with pre-existing conditions. Insurers are also prohibited from placing lifetime limits on the dollar value of coverage and rescinding insurers except in cases of fraud. Insurers are already prohibited from discriminating against children with pre-existing conditions.
    4) Tax credits for small businesses that offer insurance. Small employers that purchase health insurance for employees are already receiving tax credits to encourage them to continue providing coverage.
    5) Assistance for businesses that provide health benefits to early retirees. The law created a temporary reinsurance program for employers providing health insurance coverage to retirees over age 55 who are not eligible for Medicare, reimbursing employers or insurers for 80% of retiree claims. The program has offered at least $4.73 billion in reinsurance payments to more than 2,800 employers and other sponsors of retiree plans, with an average cumulative reimbursement per plan sponsor of approximately $189,700.
    6) Affordable health care for lower-income Americans. Obamacare extends Medicaid to individuals with incomes up to 138% of the federal poverty line, guaranteeing that the nation’ most vulnerable population has access to affordable, comprehensive coverage.
    7) Investments in women’s health. Obamacare prohibits insurers from charging women substantially more than men and requires insurers to offer preventive services — including contraception.
    8) Young adults’ ability to stay on their parents’ health care plans. More than 3.1 million young people have already benefited from dependent coverage, which allows children up to age 26 to remain insured on their parents’ plans.
    9) Discounts for seniors on brand-name drugs. Pharmaceutical manufacturers are required to provide a 50% discount on prescriptions filled in the Medicare Part D coverage gap. Seniors have already saved $3.5 billion on prescription drug costs thanks to the Affordable Care Act provision.
    10) Temporary coverage for the sickest Americans. The law established temporary national high-risk pools that are providing health coverage to individuals with pre-existing medical
    conditions who cannot find insurance on the individual market. In 2014, they will be able to enroll in insurance through the exchanges. 67,482 individuals have already benefited from the program.
    http://thinkprogress.org/healt...
  • Holy Thread High-jackers, Batman! That's entirely irrelevant to any point made by the article or my response. I mean, absolutely positively 100% irrelevant. That's artistry, that is.
  • Hosstale 4 hours ago
    The men who drafted the US Constitution, and the voters who chose the delegates to the ratifying conventions explicitly rejected a unitary national state. Yet for most of the 20th century, Liberals and Progressives have been advocating that the Constitution be (re)interpreted as creating such a National  State.  
    Mr. Perriello, why don't you honestly come out and advocate a forthrightly nationalist constitution  instead of hiding behind the federalism of the Founders?
  • Because he has no interest in being honest.
  • Victoria Granda 4 hours ago
    I don't think you've ever heard of the 10th Amendment. Or read how specifically limited the powers of the federal government are in the Constitution.The power to force citizens to buy a product is most definitely not there. This is the most ridiculous, poorly argued article on the healthcare debate I have thus seen.
  • The "powers" in the Constitution are not limited. They are incredibly expansive and far-reaching.
    "To make all Laws which shall be necessary and proper for
    carrying into Execution the foregoing Powers, and all other Powers vested by
    this Constitution in the Government of the United States, or in any Department
    or Officer thereof."
    "The Congress shall have Power to dispose of and make all
    needful Rules and Regulations respecting the Territory or other Property
    belonging to the United States; and nothing in this Constitution shall be so
    construed as to Prejudice any Claims of the United States, or of any particular
    State."
    "This Constitution, and the Laws of the United States which
    shall be made in Pursuance thereof; and all Treaties made, or which shall be
    made, under the Authority of the United States, shall be the supreme Law of the
    Land; and the Judges in every State shall be bound thereby, any Thing in the
    Constitution or Laws of any State to the Contrary notwithstanding."
    I have discovered over the decades that conservatives are "reading impaired." From Scalia to McConnell to Boehner to yard and garden variety rightwingers at a county fair, none of the them can read ALL of the words in the Constitution.
  •  So, you must think that the authors of the Federalist Papers were just blowing smoke up their readers asses when they asserted that the powers of the proposed federal government were to be limited and enumerated?
  • Victoria Granda 4 hours ago
    Oh and he deliberately misquotes the Constitution. It says "provide for common national defense and PROMOTE the general welfare." Very different than "provide...the general welfare."
  • The Preamble reads:
    We the People of the United
    States, in Order to form a more perfect Union, establish Justice, insure
    domestic Tranquility, provide for the common defence, promote the general
    Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
    ordain and establish this Constitution for the United States of America.
    Section 8, where the "powers" begin reads:
    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
    Excises, to pay the Debts and provide for the common Defence and general Welfare
    of the United States; but all Duties, Imposts and Excises shall be uniform
    throughout the United States
    Provide, provide, provide by taxing and regulating and controlling and legislating and all that other stuff that actual, functional, operating governments have to do, etc.
    So . . . the USA government is "constituted" to promote and provide and secure stuff.
  • that is in the Preamble -- it goes on to list the specific powers, and notes that those that arent specifically given to the Federal government are reserved for the people and the states.     Those words matter.
    Using your justification:   there would be very, very little a congress couldn't do --- all it would have to do is say that they are doing it for "the general welfare".    
    The preamble isnt a blank check for Federal government power.  
  • Yes, there is very, very little that the Congress can't raise revenue for as long as it is justified by "General Welfare."  I mean, it's right there in Article I, Section 8.
    And that's why it's important to distinguish between whether the penalty for the individual mandate is a tax or a fine. Because if it were an explicit tax, well, Article I, Section 8 has that covered.
  •  Exactly.  Unfortunately, the mandate was not constructed as a tax, though it should have been.
  • Oh, don't get all wordy on Mr. Perriello.
  •  One also notes that the general welfare is the welfare of everybody in general.  Robbing Peter to give Paul health insurance is definitely specific not general welfare.
  • mg1313 4 hours ago
    How this article was written:
    The author was taking a shit and realized, "oh, I don't have any toilet paper". So he used some notebook paper to wipe his ass. And then he thought, "Wow, this pretty much exactly describes my opinion of the evolution of constitutional thought and how it relates to the Affordable Care Act. Let me turn it in to the Atlantic, which will publish it because I'm the CEO of CAP Action."
    True story.
  • InfinityBall 4 hours ago
    This is nothing but whining that you can't be bothered to do what the Constitution requires and pass an Amendment. It's pathetic, juvenile behavior. Grow up.
  • elperroguapo 3 hours ago
    The mandate was quite clumsy, no doubt about it.  The legal way to do it
    would be to impose a health care tax with a redeemable credit for those
    who buy in to the system.  Basically, it would make little sense not to
    claim your healthcare under such a system because you're paying for it anyway and the credit is an extra carrot.  It amounts to the same thing as the mandate, but it works within the unquestioned power of the federal government to tax and credit.
    Quite frankly, I'm not sure the mandate is legal (and I support health
    care reform) and am disappointed that it wasn't engineered to avoid this
    mess.  As for confederates vs. constitutionalists, I would agree that
    much of the current tea party/libertarian ideology trends toward
    confederacy, with the unintended consequence of actually damaging states
    rights in the citizens united case (i.e. corporatism and confederacy are not always aligned).  If you look at the recall election
    in Wisconsin for example, that fiasco was dominated by outside
    interests and money, and though the good people of Wisconsin got to pull
    their levers, the discourse was almost wholly not theirs.
  • The mandate was based on the one that was passed in Massachusetts, and proposed by Republicans (Olympia Snowe proposed the mandate amendment during committee). It's slightly more lenient than the one in MA. There is nothing unconstitutional about it, as we will see when the court does legal gymnastics to rule against the federal mandate while trying to protect the MA mandate from similar challenges. It's just politics.
  • The legislature of Massachussetts has powers, with regards to regulating the citizens of Massachussetts, that Congress does not, with regard to regulating the citizens of the United States.
  •  The MA mandate was initiated by a state.  Mandates are clearly within the constitutional power of the states.  The issue with the ACA is that mandates they are NOT within the power of the Federal government.
  • Not quite, the MA mandate required federal buy-in. Romney was quite proud of being able to convince the Bush admin to allow it. Not even republicans subscribe to the fallacy that health-care is not a federal issue, as evidenced by their repeated attempts to tax health benefits and federalize insurance purchasing.
  • Saying that a state can't do something without Federal cooperation for fiscal reasons is not the same thing as saying that a state isn't allowed to do something. MA could have made their own shiny new health care program which did not interface with the Federal ones, and the Bush administration could have gone and jumped in the lake if they didn't like it. But they didn't want to do that: they wanted it to use Medicare/Medicaid money, etc, etc. That meant they needed the Feds on board. Who pays the piper, calls the tune.
  •  States have broader police powers than the federal government. It's not even legal stretching to say that a statute is constitutional at a state level but unconstitutional at a federal level.
  • When the state is attacking a fundamental liberty it matters not what the pecking order of the state is. Unless your saying that the mandate is not a fundamental liberty issue, thus starting the legal gyrations... as I said politics.
  • Really? Have you heard of "incorporation" (with regard to Constitutional protections)? Heck, the four guaranteed votes for the mandate don't think you're right about this, as you'll see in McDonald v. Chicago
    edit: I may be screwing up who signed on with which parts of the dissent, so it's possibly some number less than four.
  •  No. The federal government's laws must be both permitted by the Constitution, and not prohibited by it. State laws must only pass the test of not being prohibited by the Constitution.
    The argument isn't that the Constitution prohibits Congress from passing a mandate. The argument is that the Constitution doesn't permit Congress to pass a mandate.
  • "The great tragedy (& the powerful irony) of the drive to centralization, as of the drive to extend the scope of government in general, is that it is mostly led by men & women of good will who will be the very first to rue & to bemoan its consequences."
    If those Americans on the Left didn't learn this lesson during the 8 lamentable years of GW Bush, when will they learn it?
  • willallen2 3 hours ago
    Among other inaccuracies, the author  implies that corporations are reliably opposed to regulation. Anyone who isn't lying or not paying attention understands quite well that large corporations often
    strongly favor regulation, in that it provides the means to errect barriers to smaller competitors. See the airline industry when it was in some ways deregulated, for instance. There were executives at major carriers calling for re-regulation into the 1990s.
    If all the inaccuracies (to be charitable) were removed from this piece, it'd be reduced to about two short paragraphs.
  • It would be more accurate to say that corporations are more opposed to regulations that aid consumers (proposed by democrats) and more favorable to regulation that aids them (proposed by republicans). Since corporations are people it only makes sense that they would have their own political party, bought and paid for.
  • You really can't be this naive. Do you really live in a world where one team wears the white hats, and the other team the black hats? Where Democrats have never been service to corporations' desire to use regulatiom to stifle competitors?
    On second thought, don't bother to respond. You have chosen your narrative, and the chances you will take the energy to change it are very small. Have a nice day.
  • Democrats are no white knights. They generally take a 50-50 approach under the guise of compromise - a bit of help for consumers, a bit of aid for corporations (please don't hurt us!). That said Republicans don't care about consumers at all, why should they? They're the party of the corporations through-n-through, people (actual people that is) are just sheep.
  • KentCDetrees 2 hours ago
    If we are going to have a system of confederation rather than federalism, it needs to cut both ways. if we can't enforce regulations on a national level, than states should be more able to restrict trade with states that refuse to enact regulations.
  • Tim_Sims 2 hours ago
    "
    From the Articles of Confederation to the Constitution of the Confederate States of America to theLochner-era Supreme Court, confederationists have long believed in a United States consisting of states loosely united by a small, weak central government, and they have fought for more than 230 years to prevent, undermine, and erode the Constitution."
    So called confederationists would, I'm quite certain, claim that they are upholding the constitution and that "federalists" such as Lincoln, Roosevelt, etc are the ones who have eroded it.
  • Ahem...
       "The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution."
    http://en.wikipedia.org/wiki/A...
    In cased you missed it... the Confederation failed to meet the "perpetual" goal. Most nations at the time operated under the Unitary political system. We tried a confederacy. It fell apart. We replaced it with a "________________" system.
    Answer, "Federal"
  • You miss the point. The original constitution was perfect. Everything that came after, including all the amendments 11 to 27, by definition detract from that perfection. It's like the bible. You just need to have blind faith.
  • I'm afraid YOU miss the point. The Constitution was never perfect. Indeed, it is amendable for exactly that reason.That liberals prefer to skip amendments in favor of simply saying that the Constitution is a "living" document and therefore means whatever they imagine at that moment does not negate that fact. You want the National government to have unlimited powers? Amend the Constitution to explicitly say that. Oh wait, then you'd need consensus, whereas liberals prefer a dictatorship of the intelligensia.
  • I think you need to tune up your sarcasm detector.
  • I hope he was being sarcastic. But as he didn't use the standard sarcasm notation I took what he wrote at face value.  Plus, if I read his other posts as non-sarcastic, then I made the right assumption.
  • And here all this time I was thinking it was just about one party who is doing everything in their power to make sure Obama's administration fails. We'll see just how "Constitutionalist vs Federalist" it is when the Republicans propose the exact same plan 4 years from now.
  • Eupseiphos 1 hour ago
     Tom, your calibration is off.
    It's not Constitutionalists (liberal) vs. Confederates (conservative). That battle was over in 1789. It's Constitutionalists (conservative) vs. "living" constitution (liberal). Since the early 1900s the Progressives and left in general in the country has rued the constraints on power that the Constitution imposes on the federal government. Leading Progressives like TR and Wilson were vocally anti-Constitutional, FDR proposed a new, materialist version of the Bill of Rights, Obama has talked about how he doesn't like feeling so constrained by the Constitution.
    The progressive attack against the Constitution has been primarily two-fold: i. re-write it from the bench by imagining new rights and powers that are clearly extra-Constitutional but are invented to trump the political branches, or ii. just ignore it.
    It looks like they are opening a new front, though, in anticipation of tomorrow's rulings.
  • gwatkins 1 hour ago
    Hmm..50 squabbling states with a weak central government but a strong military.  Sounds like a recipe for a military coup if you ask me.
  • Mike Richardson 52 minutes ago
    this writer is doing mental backflips.....the whole point of this article seems to be that constitutionalists are in favor of a strong federal government while conferderationists (and big mean corporations) are in favor of the opposite because that means they make more money.  But....he/she then writes "to the current Court's reversal just this week of Montana's anti-corruption campaign-finance law -- the corporatist side has won."
    the reversal of the Montana law was exactly a Constitutionalist view as he/she defined it....on state attempting to go off on it's own against a federal law...so I guess the broad federal law was won by the confederatists....
    it's simple....if something doesn't fit your worldview it's wrong and Republicans are Nazis....you people are all too wierd for words
  • gwatkins 35 minutes ago
    Hmm..50 loosely united yet squabbling states with a weak central government and a strong military?  Sounds like a recipe for a military coup to me.
  • No way, no how. Not with the military we've got now. They wouldn't do it.
    Give the politicians more time to keep destroying military tradition, and anything could happen. But not for a long time.
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