Charlie Rose

danostrowski  04/16/2012 01:50 PM Report

QUOTE:

"The individual health mandate surely passes constitutional muster under settled judicial principles. The Constitution’s Commerce Clause grants Congress the authority 'to regulate commerce ... among the several States.' The Court's precedents establish without question that Congress may regulate intrastate economic activities that Congress (not the Court) reasonably concludes have a substantial effect on interstate commerce. The existence of such congressional authority is especially clear when the challenged provision itself is part of a comprehensive legislative scheme that regulates interstate commerce.

Henry Paul Monaghan, conservative law professor at Columbia

http://www.tnr.com/article/politics/102685/conservative-defense-obamacare-affordable-care-health

QUOTE:

"Conservatives increasingly bemoan Congress’s power to regulate interstate commerce, as illustrated by the debate over the Affordable Care Act’s requirement that individuals buy health insurance. They argue that Congress can only regulate activity, not inactivity, and so when it gets involved in a decision by a consumer to not purchase health care, it is going far beyond its reach.

If only it were that simple.

As a political argument, that resonates: 'Don’t Tread On Me' trumpets the imperishable spirit of American liberty. But as a constitutional argument, it would imbue judges with unprecedented powers to topple an exhaustively debated and duly enacted federal law and to make the determination that the decision not to buy ice cream can be neatly severed from the decision to buy chocolate or vanilla."

Harvie Wilkinson III, Judge of the United States Court of Appeals for the Fourth Circuit, conservative appointed by Reagan

http://www.nytimes.com/2012/03/12/opinion/cry-the-beloved-constitution.html?_r=1

QUOTE:

EK: The Court seemed to see it as considerably more complicated than that.

CF: There’s all this stuff that got in there about creating commerce in order to regulate it. ... But quite apart from that, what is the commerce? The commerce is not the health insurance market. The commerce is the health-

care market, as [current solicitor general Donald] Verrilli said a million times.

And it’s very hard to deny that.

There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.

Charles Fried (in conversation with Ezra Klein), professor of law at Harvard University, Reagan’s solicitor general and specialist in constitutional law

http://www.washingtonpost.com/blogs/ezra-klein/post/reagans-solicitor-general-health-care-is-intersta te-commerce-is-this-a-regulation-of-it-yes-end-of-story/2011/08/25/gIQAmaQigS_blog.html

Also notable, Laurence Silberman and Jeffrey Sutton made statements via rulings, when lawsuits challenging the law came before them. "Appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent," Silberman wrote in his decision.

http://www.cadc.uscourts.gov/internet/opinions.nsf/055C0349A6E85D7A8525794200579735/$file/11-5047-134 0594.pdf

http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

Most legal experts seem to believe ACA will/should be upheld, as far as I can tell.

caucazhin  03/28/2012 12:55 PM Report

Sorry but I had to chime in once more. Rad the article and watch the video clip. Like I said "FORKED TONGUE"

http://harndenblog.dailymail.co.uk/2012/03/supreme-irony-obamacare.html

http://www.youtube.com/watch?feature=player_embedded&v=7-1SMV3ok58

SharkswithfrikingLazers  03/28/2012 02:33 AM Report

The mandate in Massachusetts seems to be a problem:

The Wall Street Journal reported that mandates squeezed "those in the middle" in Massachusetts.[64]

Writing in the New York Times opinion blog "Room for Debate," single-payer health care advocate Marcia Angell (a former editor-in-chief of the New England Journal of Medicine), said that a coverage mandate would not be necessary within a single-payer system and that even within the context of the current system she was "troubled by the notion of an individual mandate."[65]

She described the Massachusetts mandates as "a windfall for the insurance industry" and wrote, "Premiums are rising much faster than income, benefit packages are getting skimpier, and deductibles and co-payments are going up."[65]

But does Massachusetts have the 80/20 rule? (I am still waiting for my check because I am quit sure Aetna is NOT spending 80% of my premium on health care.)

Dasein  03/27/2012 04:56 PM Report

Three "pro" and one "con" just about sums it up; of course if you count the host, it's "four" but if you count the broadcast system it's "the herd." Guilty until proven innocent sums up the latter segment. And the herd.

caucazhin  03/27/2012 01:25 PM Report

I saw Mr Toobin along with 2 others on your show last night saying they were pretty sure Obamacare would pass.

Now this morning Mr Toobin is swallowing his words.

I say thank GOD and I mean GOD. How does that crow taste Mr Toobin, Taylor & Dellinger. Mr Epstein was right on the money. This country is basically run by shyster utopian progressive lawyers & accountants and its time they all got a big fat black eye. And now its also time to get that forked tongued socialist pretender out of the white House

REMant  03/27/2012 12:11 PM Report

I'm glad the Court yesterday was not deflected by the procedural issue, which was merely a political ploy. And, indeed, no one is forced to have insurance coverage, but they are forced to pay for others' insurance - a distinction seemingly without a difference.

The point is that it's clearly not regulation of commerce under the Constitution. It's an interference in state prerogative. The Commerce clause has absolutely nothing to do with this kind of regulation, but only with bounties and tariffs, boundaries, and so forth, perhaps with criminal activity with respect to it, altho something like Prohibition was unquestionably unconstitutional, perhaps natural monopolies like railroads, but not insurance cos just because they operate in several states. The states are perfectly capable of taking care of themselves in this respect.

Hamilton, for instance, talked about regulation of commerce entirely with respect to his mercantilism, viz., "The vesting Congress with the power of regulating trade ought to have been a principal object of the confederation for a variety of reasons. It is as necessary for the purposes of commerce as of revenue. There are some, who maintain, that trade will regulate itself, and is not to be benefitted by the encouragements, or restraints of government. Such persons will imagine, that there is no need of a common directing power. This is one of those wild speculative paradoxes, which have grown into credit among us, contrary to the uniform practice and sense of the most enlightened nations." and in the Federalist 6, the prevention of war.

Ditto Madison in Convention: "The want of authy. in Congs. to regulate Commerce had produced in Foreign nations particularly G. B. a monopolizing policy injurious to the trade of the U. S. and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishg. all apprehensions of a Countervailing policy on the part of the U. States. The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations." In a letter in 1829, he remarked: "I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

The entire point of the Constitution in Madison's mind, as he explained it to Jefferson shortly after the Convention produced it, was to grant the Federal govt power to prevent the abuse of state power without at the same time granting enough to be abusive itself. (See http://press-pubs.uchicago.edu/founders/documents/v1ch17s22.html)

A ruling against this law would demolish all "managed competition," and it may be that's for the best, because the concept in practice is basically what Weber called political capitalism, which I think is as obvious here, as in, for instance, our postwar treatment of the Middle East. If we are going to be mercantilist, then let's at least be above board about it.

Just because this may be popular with liberals and neo-cons alike does not make it either fair or best.

A welfare clause program is probably also unconstitutional, but irrelevant, and that is why it isn't being argued.

My own feeling about the proceedings is that the Court will ultimately be found not to have understood the issue at all, as has happened in nearly every such significant case in our history. It doesn't say much for a govt of laws instead of men. What libertarians argue is that a govt of men is not only better, but the only real option, and I think history will prove them right. Nor does it say much for the disinterestedness of the justices, who seem increasingly to see themselves as some sort of super senate.

We have and have had neighborhood watches for a very long time, but so far the circumstances in the Florida incident are not at all clear and any talk of prejudice or hate is premature at best, and I think the president navigated those waters as well as possible.