If we accept the arguments of the White House, what limits would there be on the federal government?

Stephanie Cutter, Assistant to the President for Special Projects, charged with managing the communications and outreach strategy for the Patient Protection and Affordable Care Act, writing on the White House Blog, said:

Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect. Individuals who choose to go without health insurance are making an economic decision that affects all of us . . . .

Now, that’s some interesting logic. Congress certainly does have the power to regulate interstate commerce. And in his dissent on the 11th Circuit Court of Appeals ruling holding the individual mandate provision of the ObaminableCare law, “Circuit Judge Stanley Marcus accused the majority of ignoring the ‘undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries,’”¹ as though that is somehow a good thing.

Judge Marcus noted that the Patient Protection and Affordable Care Act was designed to:

regulate quintessentially economic conduct in order to ameliorate two large, national problems: first, the substantial cost shifting that occurs when uninsured individuals consume health care services — as virtually all of them will, and many do each year — for which they cannot pay; and, second, the unavailability of health insurance for those who need it most — those with pre-existing conditions and lengthy medical histories.

And he continues to assert²:

In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, “to prescribe the rule by which commerce is to be governed.”³ It has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court’s expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that “commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.”4

The individual mandate, however, is something new. With it, Congress seeks not to regulate transactions between businesses, or between businesses and individuals, but to compel individuals to buy the products of a particular set of businesses.

In April of 2010, I bought a new Ford F-150. It was my decision to buy a new truck, I chose the truck I would purchase, and I paid for it with my own money. However, this was also after the federal government bailed out General Motors, but before GM returned to being a publicly traded company. At the time I bought my F-150, 61% of General Motors was owned by the United States Government. If, to use the formulation by Miss Cutter, I was taking “an economic decision that affects all of us” by buying a Ford, the product of a privately owned company, rather than a Chevrolet, the product of a company majority owned by the government — did not my decision deny some profit to GM, and thus to the government? — why wouldn’t the Congress, under the interstate commerce clause, have had the right not only to outlaw my purchase of a Ford, but require me to by a Chevy?

After all, my decision negatively affected the value of GM, and thus the government, and thus the taxpayers!

There are plenty of economic decisions which can be said to affect all of us. By shopping at WalMart, am I not taking, for the selfish reasons of my own, personal budget, a decision which imperils the higher-priced but locally-owned shops in my community? Why can’t the federal government, under Miss Cutter’s reasoning, require that I spend 50% of my discretionary dollars at stores locally owned and operated? Under Miss Cutter’s logic, is there anything beyond the reach of the Congress, via the interstate commerce clause?

This is the problems with our friends on the left! They think that every problem requires a government solution, and, when the government solutions just happen to trample on individual rights — unless we are talking about abortion! — well that’s too bad for individual rights, but Resistance Is Futile; You Must Comply.

And that’s why we have to just plain kick them out in the next election.

________________________________
¹ – State of Florida, et al, v Department of Health and Human Services, et al, p. 208.
² – State of Florida, et al, v Department of Health and Human Services, et al, p. 208.
³ – Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824).
4Swift & Co. v. United States, 196 U.S. 375, 398 (1905).

15 Comments

  1. In my vent Fw: How Dry Is It In Texas? I noted (specifically about global warming, nut it applies to ALL forms of government control over us) …

    Now, I know (because Al Gore tells us so) that we are living in the “End Times” because of “global warming”, “climate change”, or whatever they will come up with next.

    My problem with being so damned old is that my memory goes back a long way, and although I’ve had a scare or two about my recollection, when I took the trouble to look things up and check them out, I found that memory to be working just fine.

    Along with that age comes a little bit of cynicism about the fact that nearly all of the “cures” proposed for AGW, climate change, or whatever involve putting people who couldn’t even run a lemonade stand in absolute totalitarian control of every aspect of our lives.

    Am I exaggerating? Consider Energy Secretary Steven Chu’s recent defense of banning incandescent light bulbs, “We are taking away a choice that continues to let people waste their own money.”

    This arrogant snot is literally telling you that you are just too damned stupid to make your own decisions; so they have to do it for you. They absolutely believe this. They truly believe that, “for your own good”, you must get their permission for whatever it is you feel like doing.

    If you doubt that, then you do not even begin to comprehend the mindset of these people.

    -

  2. Dana, your entire piece is reductio ad absurdum, thus of little use, in my opinion.

    By now I understand that, out of a stubborn nature, you will fish until you find a reason not to be required to do anything. The government exerted no force on you whatsoever concerning your choice of vehicle to buy, nor I doubt that it ever would, thus your reductio ad absurdum is just that!

    Do you live in fear, lying in bed worrying about these things?

  3. Perry wrote:

    The government exerted no force on you whatsoever concerning your choice of vehicle to buy, nor I doubt that it ever would, thus your reductio ad absurdum is just that!

    Who would have imagined, just ten years ago, that the government could compel you to buy health insurance? Who — other than a busybody — would have thought that the government could make it a crime not to wear your seat belt? Who would have ever thought it was any of the government’s business what light bulbs you bought?

    Back in the early 1970s,. tyhe students at the University of Kentucky were up in arms that the University held the position in loco parentis. By God, we were grown ups! and the University had no rights to try to act as parental authority for anything. Yet today, many of the people who were so pissed off about in loco parentis are willing to take just that attitude when it comes to other adults taking choices of which they disapprove, and you would justify the Congress having such power just because you are wedded to an utterly insane scheme to enforce the purchase of health insurance.

    You say that you “doubt that (the government) ever would” dictate my vehicle choices, but you are certainly willing to allow the feds the constitutional leeway to do so. And with all of the global warming Chicken Littles out there, it’s very easy to see where the government just might decide to tell you that you have to buy a hybrid or an electric car or some other vehicle that wins the favor of the busybodies because, after all, the pollution coming from your gas guzzler, why that affects everybody, don’t you know?

    But it’s easier now to see why you were so opposed to the liberation of Iraq; you don’t seem to find freedom all that important here in the United States.

  4. “But it’s easier now to see why you were so opposed to the liberation of Iraq; you don’t seem to find freedom all that important here in the United States.”

    What an absolutely ridiculous statement to make!

    Did it ever occur to you, Dana, that there are probably a good many Iraqi Sunnis who feel that the BIG American Government had no place fighting their civil war?

    Would you have favored a foreign power to have come in to liberate our slaves?

    Your anti-big government posture should have limits; that should be obvious. If one has the mindset of an absolutist, I suppose there should be no limits on freedom.

    You don’t like to be forced to wear seat belts by big government, but you have no problem with big government invading a sovereign nation. I really, really don’t get it.

    The thing about me is, Dana, I recognize that there are reasonable limits that are put in place for the benefit of us all. If you want incandescent bulbs, you can buy them by email order from another country. Why is it such a big deal to have to wear seat belts? What is so terrible about requiring everyone to carry health insurance? We require everyone to have car insurance!

    I suppose you object to increasing CAFE standards for cars, correct? How about drinking water standards, are you against those too?

    This is not a question of my not liking/wanting freedom, but I try to understand that there are certain requirements that exist for the good of us all. I don’t understand the big deal you make about the items you listed.

    Be sure to go out and vote for Rick Perry in the primaries. He is your kind of candidate!

  5. Dana, your entire piece is reductio ad absurdum, thus of little use, in my opinion.

    Big deal. Virtually everything you write is reductio ad absurdum, thus of little use.

  6. It is all very simple because the substantive issue in 2012 is going to be about jobs. So far, the Repubs have shown no interest in a jobs creation plan, as they obviously protect the interests of the powerful, wealthy elite class.

    Moreover, in addition to a focus on the need for jobs at the local level, there is considerable opposition to the Repub plans to end Medicare as we know it, to put forward a balanced budget amendment that impacts mainly the middle and poor, and to take tax increases on the wealthy off of the table. Unequal sharing of the burden of our debt is a hot topic at the local level, which will be a hot topic in the 2012 election campaigns, in my view.

    Thus, considering the unpopularity of the Repub positions, I cannot see how the they will prevail in the 2012 elections, regardless of who they choose to run.

  7. Perry wrote:

    Be sure to go out and vote for Rick Perry in the primaries. He is your kind of candidate!

    Actually, I am looking at him seriously, and though I don’t know all of the facts yet, on first impressions, Governor Perry will be the candidate I support.

  8. Perry wrote:

    Moreover, in addition to a focus on the need for jobs at the local level, there is considerable opposition to the Repub plans to end Medicare as we know it, to put forward a balanced budget amendment that impacts mainly the middle and poor, and to take tax increases on the wealthy off of the table. Unequal sharing of the burden of our debt is a hot topic at the local level, which will be a hot topic in the 2012 election campaigns, in my view.

    Thus, considering the unpopularity of the Repub positions, I cannot see how the they will prevail in the 2012 elections, regardless of who they choose to run.

    You can’t, huh? Let me help you here, because it’s really very simple: if the economy improves significantly, and people see a real decrease in unemployment, President Obama will be re-elected, regardless of whom the Republicans run. If the economy stays in the toilet, President Obama will lose.

  9. Perry wrote:

    This is not a question of my not liking/wanting freedom, but I try to understand that there are certain requirements that exist for the good of us all. I don’t understand the big deal you make about the items you listed.

    And just what are the “certain requirements that exist for the good of us all” that you see, Perry?

    • You would give Congress the right to take economic decisions for individuals, for the good of us all.
    • You would restrict the freedom of speech and of the press, because some people shouldn’t have those rights.
    • You would restrict, if not wholly eliminate, the right of innocent people to own firearms because some people have committed crimes with them.
    • You would interpret the laws and the Constitution to mean something different than what they actually say, to somehow meet the needs of modernity, ignoring the actual will of the people through their elected legislatures.

    In fact, other than the somehow sacred right to abortion, I can think of no liberty you would not somehow restrict, for the good of all. You would abhor the label “socialist,” but you, in fact, do put what you see as the good of society above the rights of the individual.

  10. “You can’t, huh? Let me help you here, because it’s really very simple: if the economy improves significantly, and people see a real decrease in unemployment, President Obama will be re-elected, regardless of whom the Republicans run. If the economy stays in the toilet, President Obama will lose.”

    Dana, if your party does not come up with a viable job creation plan, there is no way they will prevail. Already Obama can show more job growth than Bush did in his two terms. However, Obama’s is far from sufficient, but the Dems are on the right track with ideas like this and this.

  11. Perry wrote:

    “You can’t, huh? Let me help you here, because it’s really very simple: if the economy improves significantly, and people see a real decrease in unemployment, President Obama will be re-elected, regardless of whom the Republicans run. If the economy stays in the toilet, President Obama will lose.”

    Dana, if your party does not come up with a viable job creation plan, there is no way they will prevail.

    Well, Perry, if we nominate Governor Perry, he will have the demonstrated record of job growth in Texas at which to point, despite poor job growth everywhere else. However, it really is simpler than you think it is: it won’t be between competing job growth plans, but a referendum on whether the incumbent has succeeded or failed. We know that you don’t want it to be that, because, by all measurable criteria, President Obama has been a failure, and, deep down, you know it.

    Oh, you want to do everything you can to somehow deflect attention from that, telling us how his wise policies have been frustrated by his wicked, racist, mortal enemies, but failure is still failure, regardless of the reasons.

    And trying to blame President Obama’s failures on the Republicans is a losing proposition anyway. Even if President Obama were to win re-election, the Republicans would still be there. and if his great leadership couldn’t win against the Republicans during his first term, why should anyone think he would during a second?

    In the 2012 elections, Democrats will have to defend 26 seats in the Senate, compared to just ten for the GOP. If the Democrats win every one of their contested seats, and the Republicans win only half of theirs, the Republicans will still have 42 seats in the Senate, more than enough to sustain a filibuster.

  12. “In the 2012 elections, Democrats will have to defend 26 seats in the Senate, compared to just ten for the GOP. If the Democrats win every one of their contested seats, and the Republicans win only half of theirs, the Republicans will still have 42 seats in the Senate, more than enough to sustain a filibuster.”

    That’s correct, Dana. Democracy, which we idolize, rightly so, has a basic principle: majority rule. Do we practice majority rule?

    But you, with your oft referred to (by me) Machiavellian mindset, are happy with the filibuster, since it satisfies your goals to obfuscate any bill that you don’t like. Now please don’t ever tell me you are a patriot, as this proves that you certainly are not!

    While I have been disappointed in Obama on certain issues, nevertheless, given the circumstances that he inherited from your party’s malfeasance in office and the resultant great recession, he has been a success, but under-appreciated at this point in time, in my view. It is a fact that his policies saved us from a great depression, and have provided us with some growth in GDP and in jobs, though not enough, granted.

    I shudder to think what would have happened if your party retained power in 2008, because obviously we would have had austerity, negative GDP, and severe job losses, otherwise known as a great depression.

    I note that even with the recent downturn precipitated by the Republican manufactured debt ceiling crisis, the stock market (DJIA) has risen from about 6,500 to 11,500, an increase of about 90%. Not bad that! Not only that, but many American businesses have thrived under Obama, except for many small businesses who can’t get loans from our banks.

    Since Keynesian economics has a positive track record regarding GDP and job growth, now is the time to invoke it again, as I have said many times here, together with shared burden in having phased in debt reduction afterwards. You have never presented a cogent argument against this approach, which is why I keep repeating it.

    I don’t know about Rick Perry, but all the other of your candidates raised their hands against even a ten to one spending cuts to revenue increases approach to burden sharing. I’m sure Rick Perry would raise his hand as well. And you would vote for this? What then would be your justification? How can absolutists like this be expected to govern, I ask?

    The only reasonable front runner so far is Mitt Romney. The fact that many Repubs now consider him too far to the left, is indicative of how far to the right your party has moved toward absolutist positions and hatred of their opposition. Is your party basically a fascist leaning party? I think you need to ask yourselves that question.

    So yes, I envision Obama to be the calm in a tumultuous storm created in my country principally by a Republican Party out to protect the wealthy and to make them more wealthy and more powerful, to hell with the middle and the poor who suffer due to Republican policies, positions, obfuscation, and propaganda.

  13. Perry wrote:

    But you, with your oft referred to (by me) Machiavellian mindset, are happy with the filibuster, since it satisfies your goals to obfuscate any bill that you don’t like.

    No, I’m, happy with the filibuster rule when Republicans use it; I’m not nearly as happy when it serves the interests of the Democrats. And come the eleventy-third Congress, I’m guessing that you’ll have had a change of heart concerning the filibuster. As evidence, I present your statement in support of the Wisconsin Democratic state Senators, the “Fleebaggers” who tried to deny a quorum to prevent a vote on Governor Scott Walker’s union-weakening bill.

    While I have been disappointed in Obama on certain issues, nevertheless, given the circumstances that he inherited from your party’s malfeasance in office and the resultant great recession, he has been a success, but under-appreciated at this point in time, in my view.

    Well, it is certainly true that he is under-appreciated, but that is because he has been under-successful. Had his policies been successes, he’d be riding high, the Democrats would have retained control of the House, and you wouldn’t have to be making excuses for his failures.

  14. No, I’m, happy with the filibuster rule when Republicans use it; I’m not nearly as happy when it serves the interests of the Democrats.

    Much like people voting.

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