Obama Presidential Thread XIX: Starting a new chapter

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Madison said the same thing in Federalist 44. Essentially, the necessary and proper clause gives Congress no new powers. It gives them the power to carry out duties that are necessary and proper as related to those already enumerated. For instance, since Congress has the power to create post offices, they also by the necessary and proper clause can make stamps, it's a direct relationship.

Good analysis, thank you. I don't think anybody is contesting this, though. The question is the scope of existing powers, not any creation of new ones.

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Imagine how bad you'd feel if Reagan wasn't terrible at nominating judges.

Since he appears to have nominated for reasons other than a strict ideological litmus test, read "terrible" as "good"?

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

Good analysis, thank you. I don't think anybody is contesting this, though. The question is the scope of existing powers, not any creation of new ones.

Well, yes, I think people are contesting this. If you read the government's case, they base part of their argument on the clause. So the question then is, what existing power of Congress are they basing it on? Because if it's the commerce clause, that's already debunked.

Since he appears to have nominated for reasons other than a strict ideological litmus test, read "terrible" as "good"?

You're certainly free to do that. I guess my point is, for all the talk about how evil and conservative the court is, it could be a lot more. At least in theory.

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Well, yes, I think people are contesting this. If you read the government's case, they base part of their argument on the clause. So the question then is, what existing power of Congress are they basing it on? Because if it's the commerce clause, that's already debunked.

I don't think anybody presenting a case in Con Law would agree to the bald language "Congress can create powers ex nihil." I haven't read the government's case but I'm pretty much willing to bet they are arguing that while the powers they are claiming may be "new" in the sense of historically without precedent, they are still scoped within some existing government power since, as you say, that's how the Constitution works. Then it's just up to how convincing an argument that is (to the degree the justices have not already made up their minds based on political-ideological preconceptions).

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

You're certainly free to do that. I guess my point is, for all the talk about how evil and conservative the court is, it could be a lot more. At least in theory.

I would like to think that if Reagan had stacked his nominees with wingnuts the country would have been repelled by the moral vacuity of conservatism much earlier, so we would have gotten more Dem nominees.

Then again, just as "no Nixon, no Carter" and "no Carter, no Reagan" one could argue "no Dubya, no Barry."

There was an interesting final Jeopardy yesterday: "Of the twenty presidents elected to a second term, the three who did not complete it." The odds are quite likely that one more election win in 2012 will mean a full 8 years of Obama and at least one and maybe more Court nominees, so the balance of nominees may be swinging back towards the center point.

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Obama's at the National Prayer Breakfast this morning. No report on whether he's praying to his secular liberal Muslim terrorist Marxist robot god.

 

[LynahFan]

Re: Obama Presidential Thread XIX: Starting a new chapter

Because if it's the commerce clause, that's already debunked.

...and, if it's the "General Welfare" clause, well, I think reading into that a power for Congress to micromanage citizens' economic decisions is about as stupid as reading an individual's unfettered right to own assault rifles into a "well regulated militia." I may be a strict constructionist - but at least I'm an equal opportunity strict constructionist.

The General Welfare phrase is buried in a (typically tortured) sentence having to do with the power to raise taxes to pay off the existing war debts and pay for the future defense of the nation. Imagining that this phrase means that Congress is allowed to act as the central planning agency of the US economy is quite a stretch. If you make a list of enumerated powers, but the very first power on that list is unlimited, then what was the point of making the list? Paging Dr. Godel...

 

[Kepler]

Re: Obama Presidential Thread XIX: Starting a new chapter

Imagining that this phrase means that Congress is allowed to act as the central planning agency of the US economy is quite a stretch. If you make a list of enumerated powers, but the very first power on that list is unlimited, then what was the point of making the list? Paging Dr. Godel...

Very good point in the enumerated powers, however if one is a strict constructionist one should also remember that the Founders were far from free market capitalists. They had a range of economic philosophies but there was nothing remotely like contemporary large corporation capitalism.

The American School included three cardinal policy points:

1. Support industry: The advocacy of protectionism, and opposition to free trade - particularly for the protection of "infant industries" and those facing import competition from abroad. Examples: Tariff of 1816 and Morrill Tariff

2. Create physical infrastructure: Government finance of internal improvements to speed commerce and develop industry. This involved the regulation of privately held infrastructure, to ensure that it meets the nation's needs. Examples: Cumberland Road and Union Pacific Railroad

3. Create financial infrastructure: A government sponsored National Bank to issue currency and encourage commerce. This involved the use of sovereign powers for the regulation of credit to encourage the development of the economy, and to deter speculation. Examples: First Bank of the United States, Second Bank of the United States, and National Banking Act.

All three of those aspects have strong government "intrusion" into commerce.

 

[unofan]

Re: Obama Presidential Thread XIX: Starting a new chapter

Well, yes, I think people are contesting this. If you read the government's case, they base part of their argument on the clause. So the question then is, what existing power of Congress are they basing it on? Because if it's the commerce clause, that's already debunked.

Well, debunked according to one judicial theory. I hate the commerce clause as much as anyone, but given the precedent that "not buying vegetables on the market because you grow your own" was deemed to be interstate commerce (because in the aggregate, not buying vegetables on the market affects the market), it's not really a stretch to say "not buying health insurance because you're an idiot" is likewise a part of interstate commerce (because not buying insurance in the aggregate affects the insurance market).

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

Well, debunked according to one judicial theory. I hate the commerce clause as much as anyone, but given the precedent that "not buying vegetables on the market because you grow your own" was deemed to be interstate commerce (because in the aggregate, not buying vegetables on the market affects the market), it's not really a stretch to say "not buying health insurance because you're an idiot" is likewise a part of interstate commerce (because not buying insurance in the aggregate affects the insurance market).

Right. Debunked was probably too strong a word for the court as a whole. I was trying to make the point that the government can't say in this specific case "Commerce Clause!" and when that gets rejected go "Necessary and Proper!" only to go back to "Commerce Clause!" when this particular judge has already ruled against that argument.

 

[unofan]

Re: Obama Presidential Thread XIX: Starting a new chapter

Right. Debunked was probably too strong a word for the court as a whole. I was trying to make the point that the government can't say in this specific case "Commerce Clause!" and when that gets rejected go "Necessary and Proper!" only to go back to "Commerce Clause!" when this particular judge has already ruled against that argument.

Well it's already won under a commerce clause argument before, so it's justified in continuing that argument regardless of losing before this judge. Likewise, I'm sure it argues necessary and proper in the alternative, so it can make that one, too.

While it's likely that whenever this reaches SCOTUS they'll consolidate a number of the cases, it would be interesting to see the effects of the argument if it doesn't. Talk about a case where SCOTUS's choice for the actual case they consider could make a huge difference.

 

[5mn_Major]

Re: Obama Presidential Thread XIX: Starting a new chapter

...and, if it's the "General Welfare" clause, well, I think reading into that a power for Congress to micromanage citizens' economic decisions is about as stupid as reading an individual's unfettered right to own assault rifles into a "well regulated militia." I may be a strict constructionist - but at least I'm an equal opportunity strict constructionist.

By design, your examples of micromanaging citizens decisions or unfettered rights to own assault rifles are extreme. And truly not in the nations welfare - polls would absolutely show that - and therefore, would likely be unconstitutional.

Any legislation that is within the bounds of the Constitution but bad policy nonetheless...is to be judge by voters who will punish Congress and not by the judical system.

The General Welfare phrase is buried in a (typically tortured) sentence having to do with the power to raise taxes to pay off the existing war debts and pay for the future defense of the nation.

If by buried you mean one of three primary components in the first and cornerstone clause that defines what Congress can do...ya I guess its buried then.

 

[Craig P.]

Re: Obama Presidential Thread XIX: Starting a new chapter

The General Welfare phrase is buried in a (typically tortured) sentence having to do with the power to raise taxes to pay off the existing war debts and pay for the future defense of the nation.

Actually, that's a good point. Congress does not have the unfettered power to provide for the general welfare of the country, but rather to <em>raise money</em> to do so (via taxes, duties, imposts, and excises). That's an important distinction, and one that I think 5_mn is ignoring. It's the revenue-raising power that is essentially unfettered.

 

[LynahFan]

Re: Obama Presidential Thread XIX: Starting a new chapter

Actually, that's a good point. Congress does not have the unfettered power to provide for the general welfare of the country, but rather to <em>raise money</em> to do so (via taxes, duties, imposts, and excises). That's an important distinction, and one that I think 5_mn is ignoring. It's the revenue-raising power that is essentially unfettered.

It's all in how you parse it - which does leave room for interpretation. Taking the entire sentence as a whole, though, it seems obvious to me that the power that was intended to be enumerated was not "Congress can do whatever it wants as long as it's good for the country."

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

Well it's already won under a commerce clause argument before, so it's justified in continuing that argument regardless of losing before this judge. Likewise, I'm sure it argues necessary and proper in the alternative, so it can make that one, too.

Yep. I agree completely. I'm not disputing that. My original comment was in response to Kepler saying that the necessary and proper clause builds off existing powers. I'm just asking what power exactly it builds off here in order to mandate purchasing insurance. To answer clearly seems to be the commerce clause. I guess my point is to say that that in and of itself doesn't get you home free so to speak, that argument by itself carries with it some issues. (Which is a far better way to phrase it than "debunked", I admit).

 

[WeWantMore]

Re: Obama Presidential Thread XIX: Starting a new chapter

By design, your examples of micromanaging citizens decisions or unfettered rights to own assault rifles are extreme. And truly not in the nations welfare - polls would absolutely show that - and therefore, would likely be unconstitutional.

So, polls are the key to what's constitutional or not? You sure you want to go down this path? Really?

 

[dxmnkd316]

Re: Obama Presidential Thread XIX: Starting a new chapter

So, polls are the key to what's constitutional or not? You sure you want to go down this path? Really?

Might be one of the worst ideas ever... Using polls to determine constitutionality...

 

[LynahFan]

Re: Obama Presidential Thread XIX: Starting a new chapter

So, polls are the key to what's constitutional or not? You sure you want to go down this path? Really?

I guess the argument goes like this: If it's a popular policy, then people must think it's good for the country. If it's good for the country, then it must be helping the general welfare. If it's helping the general welfare, then it must be constitutional.

Sounds more like tyranny of the majority to me.

 

[walrus]

Re: Obama Presidential Thread XIX: Starting a new chapter

So, polls are the key to what's constitutional or not? You sure you want to go down this path? Really?

When it fits what he likes, of course, when it doesn't, of course not

 

[LynahFan]

Re: Obama Presidential Thread XIX: Starting a new chapter

It also brings up the uncomfortable question of what happens if Congress passes a law that the majority of people don't want...