Baseball Crank
Covering the Front and Back Pages of the Newspaper
January 31, 2011
BLOG: Open Thread 1/31/11

It's been a couple of days, and none of my long-brewing essays are done yet, so have at it.

Posted by Baseball Crank at 3:21 PM | Blog 2006-13 | Comments (18) | TrackBack (0)
Comments

Come on baseball season!!!

Posted by: maddirishman at January 31, 2011 3:56 PM

Obumblercare takes another hit.

Posted by: dch at January 31, 2011 4:15 PM

I just skimmed the opinion - 78 pages - when are these courts going to learn that less is more? And worst of all, the most critical argument is in a footnote, of all places, #14 on page 38.

Again, these courts are dismissing the logic of Wickard a little too easily. This decision was at least a little better than the last one. Saying that the farmer had a "choice" doesn't really answer the question. They forced that farmer to purchase something in the market. That's hard to get around. If they are going to find this law unconstitutional, it would be analytically better to overrule Wickard in whole or in part rather than distinguish it.

Posted by: MVH at January 31, 2011 5:01 PM

"If they are going to find this law unconstitutional, it would be analytically better to overrule Wickard in whole or in part rather than distinguish it."

MVH - a district court judge can overrule the Supreme Court?

I think he does a pretty persuasive job detailing the 'parade of horribles' that would ensue from a full embrace of Wickard (ie, effectively taking the limiter off of federal power).

Interesting quote:
"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”

Posted by: tanstaaf lunch at January 31, 2011 5:25 PM

MVH - a district court judge can overrule the Supreme Court?

No, I wasn't suggesting the district court could do that, but if SCOTUS wants to declare this unconstitutional, the analytically preferable way would be to overrule Wickard. I'd just rather see one of these courts tackle the harder question posed by Wickard.

Posted by: MVH at February 1, 2011 7:26 AM

MVH, It's been a while since I read Wickard, but what was he forced to buy? My recollection was he was growing crops in excess of what was allowed, and claimed the excess was for personal consumption. While Wickard was a terrible case, it does not seem to go as far as requiring the purchase of a good, which is why it is being distinguished by the lower federal courts.

Posted by: Paul H. at February 1, 2011 11:44 AM

If memory serves, the court noted that by restricting the farmer from growing enough wheat to use for feed, he would have to purchase feed on the market.

Posted by: MVH at February 1, 2011 12:11 PM

Okay, but he wasn't actually required to buy the wheat, he was just prevented from growing more than allotted (and yes, it is ridiculous to think that the government was regulating food shortages to drive up the price of wheat). While I hope the SC overturns Wickard, the individual mandate is definitely an extension of a bad rule, and should be distinguished even if it means Wickard is not overturned.

Posted by: Paul H. at February 1, 2011 1:26 PM

Leave it to a bunch of lawyers (Shakespeare clearly got it right) to take a key issue, realize there is a forest, and focus on a frakkin' pine cone.

Health Care is a large issue, and it's a global one. So it comes down to answering the question, "Is health care a right or a privilege?" If the answer is no, then it's a business decision. If not, then the only appropriate answer is the poorly named public option. So spare me the Wickard stuff, it's all smoke to make lawyers sound like they have this special knowledge that lay people don't have. It's simply cowardice on everyone who doesn't want to either ask or answer the question. The real question.

The preamble of the Constitution is sort of probable on it. Since in many cases now, unlike 1789, doctors can actually do more than give you some leeches, make you barf and watch you die, it's a legit question. Is it in our national interest to have the public bankrupt itself to keep individuals alive. I say yes, since our "National Soul" has been that the individual is as important as the collective "us." That dictatorships put more import in the collective, and that Americans put the import on we the people.

So I say, Yes. Health Care is a right.

Posted by: Daryl at February 1, 2011 2:00 PM

Actuall ObamaCare mixes Health Care (actually taking care of people) with Health Insurance (which is one method of paying for the Health care).

Today everyone can get Health Care and they cannot be turned away by a hospital just because they don't have the money handy.

Alot of people buy Health Insurance to help handle the cost of Health Care when/if they need it.

So IMHO, while I might not agree Health Care is a right; there is no way Health Insurance is a right!

Posted by: Lee at February 1, 2011 2:48 PM

the simple answer to whether it is a right-1) is it in the Constitution-answer no 2)has the Congress passed a law or amendment making it a right-answer no. Therefore, its not a right. if people want to make it a right in the future, thats a different question.

Posted by: dch at February 1, 2011 5:07 PM

Daryl,

No, health care is not a Constitutional right in any sense. No one is arguing that in court, nor would they be. Why? Because it's not a credible legal argument. This is why we have lawyers. The issue is whether Congress has the power to pass a very particular part of a health care law. You make fun of lawyers, yet you draw a legal conclusion with no idea what you are talking about.

Posted by: MVH at February 1, 2011 8:54 PM

No MVH, I'm not making a legal argument, but a philosophical one. Possibly an economic one.

Posted by: Daryl at February 1, 2011 9:10 PM

"Okay, but he wasn't actually required to buy the wheat, he was just prevented from growing more than allotted."

But he wasn't selling it, he was using it to feed his animals. And by requiring him not to grow it, they were also forcing him to buy a product on the market. That sounds an awful lot like requiring someone to buy something they don't want.

There is a distinction - Wickard's effect is indirect - the law didn't directly force the guy to buy feed on the market. But the outcome is the same, direct or indirect.

Posted by: MVH at February 2, 2011 7:02 AM

But the farmer in Wickard could always choose to opt out - not so here. Wickard is better summarized as saying "if you are going to use this extra wheat (it was part of a rationing system), you have to buy it from these sellers". It ultimately gave control to the the farmer to decide what to do with what he had and even choose to to stay out of the market - that is, he could set another course to avoid the mandate. That is the crucial distinction with the Individual Mandate, which does not allow one to opt out.

This case wouldn't really be the one to overturn Wickard because the government power asserted in the Individual Mandate goes far beyond the purchasing requirement of Wickard. They don't need to move the lines inward to call this one a foul.

Posted by: tanstaaf lunch at February 2, 2011 10:07 AM

Did anyone notie how badly Sarah Palin dissed the sainted one, Ronald Reagan? In her "spunut" comment to Faux news, she gave JFK the credit for bringing down the USSR. If the money spent on space caused the collapse of the Soviets, it was all in place while Ronny was still doing ads for GE.

The horror. The horror.

Posted by: Magrooder at February 2, 2011 10:50 PM

Did anyone notie how badly Sarah Palin dissed the sainted one, Ronald Reagan? In her "spunut" comment to Faux news, she gave JFK the credit for bringing down the USSR. If the money spent on space caused the collapse of the Soviets, it was all in place while Ronny was still doing ads for GE.

The horror. The horror.

Posted by: Magrooder at February 2, 2011 10:51 PM

"But the farmer in Wickard could always choose to opt out - not so here. . . . It ultimately gave control to the the farmer to decide what to do with what he had and even choose to to stay out of the market - that is, he could set another course to avoid the mandate."

I guess I'm not convinced that the ability to opt out is a factor that matters - under the existing jurisprudence - when determining whether Congress has authority under the commerce clause.

My sense was under Wickard, the fact that the guy was forced to buy feed on the market was actually a reason why it was OK to regulate - he would have been forced to purchase feed on the market, which would have in turn affected the price of wheat. I don't get the sense that the court cared whether he could opt out.

Posted by: MVH at February 3, 2011 7:47 AM
Site Meter 250wde_2004WeblogAwards_BestSports.jpg