Thread: Individual mandate is unconstitutional...

Originally Posted by EricOKC

Unfortunately, for you, that clause in no way supports it. Neither does the case law you cite.

All laws "necessary and proper" applies to situations in which the federal government is authorized to legislate. As it is specifically granted the authority to coin money, any necessary and proper legislation surrounding said coinage and value, as well as banking regulations, would apply.

In the case of health care, there is no authority granted to the federal government to enter into the picture. Additionally, it is granted any authority to dictate what someone must spend their money on. In short, it violates, among other things, the 5th, 9th and 10th amendments blatantly.

Perhaps you could identify for us the exact wording in the US Constitution granting the federal government the authority to directly order an individual to purchase something? Or even the portion granting the federal government the authority to enter the insurance business?

the insurance companies are to be running the business of the healthcare premiums.

Fifth Amendment:
•Prohibition of arrest for answering any capital or infamous crime
•Protection from double jeopardy
•Prohibition of taking private property for public use
nothing here violated by healthcare law.

Amendment IX: Protection of rights not specifically enumerated in the Bill of Rights, but decreed as relevant to the people.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

nothing here that is healthcare related

Amendment X: Reservation of non delegated powers by state and people to the state and the people, as prescribed in the U.S. Constitution.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Nothing here from the healthcare law

providing for the general welfare of the US citizens was written with a nature that govt. could help provide
Welfare
welfare n. 1. health, happiness, or prosperity; well-being

Infringe
infringe vb [Latin infringere] 1: violate, transgress 2: encroach, trespass Source: NMW
In the context of the Constitution, phrases like "shall not be infringed," "shall make no law," and "shall not be violated" sound pretty unbendable, but the Supreme Court has ruled that some laws can, in fact, encroach on these phrases. For example, though there is freedom of speech, you cannot slander someone; though you can own a pistol, you cannot own a nuclear weapon.
The Constitutional Dictionary - The U.S. Constitution Online - USConstitution.net

I am sorry. I tried to read your red type. I can stand a line of it but not more.

That looked interesting, but hey, my head staying on interests me too.

If you decide to do it in another color, i would look forward to reading it.

The general welfare clause is for spending only. Congress can spend money on health care, but an individual mandate is not spending. It's a law. And they can't pass laws for the general welfare, because that would be absolute power. And of course, the text doesn't say they can do that anyway.

Originally Posted by Moonglow

providing for the general welfare of the US citizens was written with a nature that govt. could help provide
Welfare

This has got to be the single biggest abuse of language by Liberals. Article I, Section 8 enumerates the powers of Congress. There are 12. The first power is the power to lay and collect taxes. Like the 2nd Amendment, the Founding Father's provided the moral reasoning for this. Why does Congress have power to lay and collect taxes?

The answer is provided in the rest of the clause - to pay the Debts and provide for the common Defence and general Welfare of the United States. This, as opposed to defense of specific areas only (like high population centers) or for the specific benefit of corporations or any other subgroup (like Unions who pave roads). It is important to note how closely linked the Founding Father's recognized paying the debt was to national security. Lacking this power was a major short coming of the Articles of Confederation, which is why they put the power to lay and collect taxes first in Section 8.

In addition, at the conclusion of Section 8, it reads "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Congress has 12 enumerated powers. "Necessary and proper" pertains to the 12 powers not unlimited power to do whatever they want as long as they claim it is for the general Welfare.

A point of logic: IF the Founders meant the phrase "provide for the general Welfare" to be an unlimited power, there would be no point to enumerate the remaining 11 powers. To further put the proper interpretation of Section 8 in general and the first clause of the power to lay and collect taxes in perspective. One needs to look at the 10 Amendment which refers to enumerated powers. Why would the same Founding Father's pass an Amendment referring to powers not enumerated IF "to provide for the general Welfare" was meant to an unlimited power?

There is a difference in the 2nd Amendment between the right (the right of the people to keep and bear arms) with the moral reasoning for the right (because what is necessary to the Security of a Free State is a well practiced (or regulated) able bodies (militia). Just as there is a difference between the power (to lay and collect taxes) and the moral reasoning for the power (pay debts, common defense and general welfare).

Sorry but no. The moral reasoning provided in Article I, Section 8 and the 2nd Amendment is only confusing to those who want to be confused.

Even if I were to give you your point (which I don't), this is 225 years later, There's been a lot of rain on the plains. We have running water, indoor toilets, general education, regulations on looters, pillagers, and murderous bosses. We have national parks, highways, and airways. Slavery is gone, women vote, the Smithsonian is open, and the US Post Office delivers mail.
In other words, today in 2011, your point is totally and completely moot. It just makes no difference. Like it or not this is the law of the land, and no one is going back to 1789.

Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,[12] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was later overturned in United States v. Butler. There, the Court agreed with Associate Justice Joseph Story's construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.

Shortly after Butler, in Helvering v. Davis,[13] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.[14] To date, the Hamiltonian view of the General Welfare Clause predominates in case law.

General Welfare clause - Wikipedia, the free encyclopedia

However, the general welfare clause is limited to taxes and spending. It does not apply to lawmaking in general.

If forcing people to be part of a healthcare system is unconstitutional, what about state governments forcing people to buy car insurance?

Originally Posted by Occam's Razor

If forcing people to be part of a healthcare system is unconstitutional, what about state governments forcing people to buy car insurance?

Apparently state governments can do anything they want, including legalizing slavery. Its only the Feds who can't do stuff.

Originally Posted by Dick Martin

Apparently state governments can do anything they want, including legalizing slavery. Its only the Feds who can't do stuff.

Well, the scary thing is... in some ways, that's true.

For example, the reforms in the Constitution that provide voting rights for minorities and women only prevent states from discriminating against people according to things like race and gender.

Technically, no one actually has the undeniable right to vote. You only have the right to not be denied the right to vote according to these specific factors. A state government can deny you the right to vote for any reason not listed by the Constitution or its Amendments.

This is very different from most of our peers. For example, in Canada, you have the undeniable right to vote as an adult citizen.

That's the Constitution. The federal government is limited by the Constitution. State governments are limited by their constitutions. Complaining about states doing whatever they want is nonsense, since states are sovereign.

Originally Posted by adaher

That's the Constitution. The federal government is limited by the Constitution. State governments are limited by their constitutions. Complaining about states doing whatever they want is nonsense, since states are sovereign.

States might be sovereign to a degree, but it often takes federal intervention to right many wrongs by states (like ending segregation, for example).

Originally Posted by adaher

Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers.

However, the general welfare clause is limited to taxes and spending. It does not apply to lawmaking in general.

Rather arrogant for Story to deny Madison meant the clause he wrote to mean what he says he meant by that clause.

Nice analysis.

Originally Posted by Dick Martin

Even if I were to give you your point (which I don't), this is 225 years later ... your point is totally and completely moot. It just makes no difference. Like it or not this is the law of the land, and no one is going back to 1789.

This thread is about going back to 1789. The Law of the Land now is what it was back then (as no Amendments on this point have been added).