Commerce Clause

Integrity Fail: Republicans Pass An Anti-Abortion Bill, Thus Undermining Their Argument Against Unconstitutional Overreach By Democrats

/ Jack Marshall / 13 Comments
I bet this guy is a Republican.

I bet this guy is a Republican.

The bill the Republicans in the House just passed to ban abortions after 20 weeks undermines every argument the party has made against the abuse of the Constitution’s Commerce Clause to allow the federal government to meddle in state matters. One’s position on abortion isn’t relevant to the ethics and law here: I agree whole-heartedly with the ban in principle.

Abortion isn’t commerce, however. For decades, the Commerce Clause’s provision giving Congress the power to “regulate commerce . . . among the several states” has been stretched beyond all reason and the limits of language by Democratic majorities.  It has been conservative legislators, scholars and pundits who have screamed about it. Indeed, this was the primary basis for the attack on Obamacare in the Supreme Court case NFIB v. Sebelius, and the majority did find that the so-called “individual mandate” exceeded Congress’s Commerce Clause limitations.

The abuse of the Commerce Clause has been the primary means by which the Founders’ intentional restraints on federal  government power over the states and individuals have been circumvented by big government advocates. Some of the measures that were ingeniously slipped by the Commerce Clause using dubious justifications have been necessary and beneficial, like Federal laws against discrimination. Those measures, however, greased an ever-slipperier slope that has made the Clause a virtual nullity.

Supposedly, Republicans believed that it was important to start taking the Constitutional limits on Congressional power seriously again, because the alternative would be a Congressional dictatorship over the states. Now we know that the Republicans are just as willing to trample the Commerce Clause as Democrats are, as long as their pet social issues are being served. Continue reading →

The Supreme Court Upholds The Individual Mandate and Obamacare: The Ethics Opinion

/ Jack Marshall / 19 Comments

This morning the Supreme Court announced its decision upholding the key provision in the Affordable Care Act, a.k.a Obamacare. It is apparently a huge and complex decision, and is now available in text form online here.

The political and legal analysis will be coming soon from others far more qualified than I [UPDATE: The legal dissections have begun, and you can’t do better than to start here] , and while I am deeply interested in them, that’s not my job. I won’t be able to read the opinions and the various concurring opinions and dissents, not to mention digest them, for quite a while, but some ethical verdicts are already evident from what I do know: Continue reading →

The Disgrace of the Health Care Reform Debacle, Brought Into Focus

/ Jack Marshall / 19 Comments

Nice image. Unfortunately, the open book is "Catch 22"

“Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps not even a single federal judge — who has accepted the taxing power argument. Not a one. And yet a half-dozen federal judges have found the mandate to be unconstitutional. So which arguments are outside of the mainstream again?”

Thus did Jonathan Adler, Case Western law professor and Director of the Center for Business Law and Regulation, chide the arrogant supporters of the health care reform act who dismissed as wackos and radicals critics who were alarmed at its intrusions onto personal freedom. The 11th Circuit Court of Appeals’ rejection of the individual mandate, the provision requiring all adult citizens to buy private health insurance, is the most striking proof yet of the arrogant, unethical, dishonest, corrupt and incompetent manner in which the Democratic majority passed its version of health care reform. Continue reading →

Judge Vinson’s Ruling on the Individual Mandate, Rejecting Utilitarianism

/ Jack Marshall / 21 Comments

Judge Roger Vinson of Florida’s Northern District Court has struck down the much-debated individual mandate in the new health care reform law, and more striking yet, has ruled that the entire law fails to meet constitutional requirements as a result. Lawyers more skilled than I will be analyzing the opinion today and long afterward, but the opinion is also notable for its ethical approach. Continue reading →

Commonwealth of Virginia v. Sibelius Ethics

/ Jack Marshall / 8 Comments

From the Associated Press, the big story of the day:

“A federal judge declared the foundation of President Barack Obama’s health care law unconstitutional Monday, ruling that the government cannot require Americans to purchase insurance. The case is expected to end up at the Supreme Court.”

This matter, as the AP suggests, is far from settled. I just finished the opinion, which will be more accessible tomorrow. Two ethical conclusions jump out from it, however. Continue reading →