Orrin Hatch and Ken Blackwell recently wrote a piece for the Wall Street Journal about the health care reform bill that just passed the Senate. In it they argue that the bill is unconstitutional.

It’s sad, really, that a sitting US Senator has become so desperate that he feels like he needs to join forces with Ken Blackwell to write an article based on a theory that was long ago debunked.

Ian at ThinkProgress smashed this right-wing nonsense months ago when Michelle Bachmann made a similar claim about the public option:

If Congress does not have the power to create a modest public option which competes with private health plans in the marketplace, then it certainly does not have the authority to create Medicare. Similarly, Congress? power to spend money to benefit the general welfare is the basis for Social Security, federal education funding, Medicaid, and veterans benefits such as the VA health system and the GI Bill. All of these programs would cease to exist in Michele Bachmann?s America.

And the LA Times Published a piece back in October by Erwin Chemerinsky, the Dean of the UC Irvine School of Law in October, that disproves, piece by piece, each of Blackwell and Hatch’s arguments.

“Although the desirability of this approach can be debated” Chemerinsky says, “it unquestionably would be constitutional.”

Who are you going to trust when it comes questions about the Constitution? Ken Blackwell or the Dean of a Law School?

 
  • mvirenicus

    ken blackwell or a law school dean? that's a tough one. i'll get back to ya.

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  • Shalom Joseph,

    As a journalist I'm more interested in why Rupert Murdoch's Wall Street Journal published the piece and what that tells us about Wall Street via the print voice of Wall Street.

    The continuing subversions of our right to life and liberty are ever endangered by a tiny minority's rights to property.

    When will we come to grips with the reality that Horatio Alger's creations were fictional characters?

    B'shalom,

  • Shalom Mvirenicus,

    What you said.

    B'shalom,

    Jeff

  • seditious

    For the first time in my life, I think Ken Blackwell makes a decent argument. Chermininsky is a very impressive Constitutional scholar but no one is flawless on everything. And, it will come down to what the U.S. Supreme Court decides and not lefty scholars.

    Here's a portion of an article by liberal activist and author David Swanson about this subject that I think is more informative than the WSJ or Chermininsky's Op-Ed's:

    Sheldon Laskin, an Adjunct Professor at the University of Baltimore Law School who has argued that the Constitution forbids such a move, describes the new and dangerous can of worms it would open up:

    ?If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it.

    ?The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don?t. Obesity crisis? Order Americans to join health clubs, or tax them if they don?t. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses.?

    http://pubrecord.org/commentary/6386/legal-chal

    Read the article at the link before making up your mind.

  • seditious

    Shalom Jeff,

    I think your comment reflects that you should dig deeper into the issue of the government using the IRS to mandate that consumers buy for-profit health insurance. I urge you to read the other comment that I posted in this thread. I agree that Rupert Murdoch has ruined the Wall Street Journal (although it's Op-Ed page has always been an abomination).

    Also, a little context. Bill Clinton and Obama embrace a Third Way for the role of government. They believe that government should mandate a social safety net but it should mostly be delivered by private, for-profit companies.

    The First Way (Washington, Jefferson, Madison, FDR) believes that government should directly provide for the social safety net. Washington, Jefferson and Madison set up govt. programs in several big cities to provide food and shelter to the poor. Most are familiar with the FDR's New Deal programs.

    The Second Way is the conservative view regarding the role of government—that government should do little more than provide for police and military protection. Although Bush even outsourced half of the military to for-profit companies such as Blackwater.

  • modernesquire

    This would be the same Ken Blackwell who promised in 2006 to bring RomneyCare to Ohio, right?

  • seditious

    The Senate's Healthcare bill is comparable to RomneyCare. What's your point?

  • seditious

    Modern,

    ok, I get it. You're correctly calling Blackwell out for his hypocrisy.

    But the bigger issue is that Obama and the Congressional Democrats are likely to pass healthcare reform comparable to what Ken Blackwell campaigned for even though they control Congress with a fillibuster-proof majority in the Sentate. Unfucking believable!!!!

    That settles it, I'm gonna register as a Green.

  • Sorry, Seditious. You can't actually 'register' for the Green party in Ohio. You identify yourself with a political party by requesting a specific ballot and the only options are Democratic, Republican or “Nonpartisan or issues only”.

    šŸ™‚

  • modernesquire

    First, given your comments here, it's pretty clear you already were a Green voter. Second, that Romney plan? Yeah, it was passed by a Democratic legislature that is more liberal than anything you've ever seen in Congress or Ohio.

    In fact, one of the criticisms of Romney is that he let the left take over the plan and made it too “costly.” It was actually one of the attacks made by Matt Naugle, Blackwell's campaign blogger, as why he thought Blackwell's pledge to make a healtch care platform off of Romney was a mistake.

    Just because something was done with a Republican involved doesn't make it instantally bad.

    Incidentially, everything that makes this bill like Romney Care also makes it exactly what Obama campaigned on.

  • Or you can request an non-partisan ballot and end up registered Republican. That's what happened to me.

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  • mvirenicus

    they thought you were paul

  • seditious

    Bush and Bill Frist didn't have trouble getting legislation through Congress. They threatened blowing up the fillibuster and taking away Committee Chairmanships and playing hardball by cutting campaign funds from the Party (or threatening to do so) to twist arms. Harry Reid and Obama are polite sell-outs.

    It's off the charts ridiculous that the Democrats couldn't do better than the likely final HCR bill, without a public option. Don't re-write history, Obama campaigned for a public option. Then he turned around and cut deals with Pharma and the Insurance lobby.

    I can asssure you that I've been registered as a life-time registered Democrat who has canvassed for the Party the past four elections. I'm through with that. And, only Kucinich, Feingold, Bernie Sanders and Alan Grayson will get my money in the future.

  • ryan

    Hi Seditious,

    The State already requires most of us to buy numerous insurances to drive a car.

    compulsory 9-12 education requires us to spend a lot of money educating kids who don't wanna be in school. there are a lot of mandates for having the schools wired with Internets and computers in schools: this has required us to fund programs that pay a lot of contractors and software licenses.

    the Arms industry seems to have a lot of sway getting us into expensive wars and saber rattling.

    The interstate highway system killed mainstreet, but I don't see the big box retailers complaining.

    The IRS tax deductions compel us to continually buy “real estate”: I don't see the big developers, real estate agents, and mortgage brokers complaining.

    we're not allowed to burn dead leaves in our yards like in the free-wheeling small government days of the 1950s: the state and Municalities require us to pay some one or another to cart them off

  • Michael

    Hey Joseph,
    Why are you calling Hatch out by your negative reference to his religion; seems pretty RACIST to me.

    BTW, Harry Reid is a Mormon too.

    MG

  • 1. I've got no beef with the Mormons. I actually spent almost a year working in SLC and I found the Mormons to be quite pleasant actually. Not pushy or judgmental and very accepting of my non-Mormon choices.

    2. Religious belief/church identity is not a race. So even if I called Hatch a dirty, polygamist, special-underwear-wearing, heaven-is-on-another-planet/native-americans-are-from-israel-believing freak it wouldn't make me a racist. Just an asshole who doesn't respect other people's religious beliefs.

    Thankfully, that's not me.

  • mvirenicus

    ryan, your point is understood but most of the examples you cite are funded through tax dollars, not compelling an individual to purchase something directly from a private concern; and in the case of auto insurance, driving is a privilege fraught with danger to the public, both in terms of potential personal injury and property damage. i consider that example used in regard to HC mandates to be a case of apples and oranges. btw, i have a neighbor who refuses to pay the private concern that services our city for garbage removal. he disposes of his refuse using alternative means. i don't know what his means are, but the city has obviously never compelled him to pay up to the concern under contract to the city.

  • mvirenicus

    making a negative reference to someone's religion isn't racist. our public schools obviously need better funding.

  • mvirenicus

    i'm of the opinion that religion is deserving of nothing but scorn and mockery. i don't distinguish between religions because they're all bollocks.

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  • Shalom Seditious,

    I see your point.

    At the local and state level, we have plenty of examples of government mandated purchases from private companies. The first that springs to mind are smoke detectors. Granted, governments also provide free smoke detectors to the elderly and others with limited incomes.

    At the federal level, government has mandated that all of us who own cars must buy seat belts. We don't think about it now, but back when I was first learning to drive, it was a huge deal.

    The grand-daddy of them all, of course, is the government mandate that we all buy — in the absence of proof of a an acceptable substitute line Ohio's PERS — pension insurance in the form of Social Security. As a self-employed business man I pay a whopping 17 percent of my income for this insurance.

    I see too many precedents at all levels for a Constitutional assault on Health Care Reform to have much of a chance.

    Having said that, I wouldn't place any bets on the Robert's court.

    B'shalom,

    Jeff

  • Shalom Seditious,

    Don't you think that President George Bush's Compassionate Conservatism and the Conservative movement's emphasis on the transfer of government funds to private, particularly military, but also pharmaceutical and other corporations, are also part of your Third Way?

    I've seen a lot of lip service given to your Second Way, but I've yet to see a Republican administration actually reduce government in any meaningful way.

    B'shalom,

    Jeff

  • seditious

    Hi Jeff,

    Yeah, that's a good point. I think the Republican Party knows that it will never win by touting the Second Way honestly. The Compassionate Conservative crap was a merger of government, corporations and churches. IMO, that path leads to some kind of theocratic fascism.

    I think the Conservative Movement is covertly up to two agendas. First they are trying to Starve the Beast which means that they don't mind running up huge deficits because they hope it will lead to drastic cuts to the Social Safety net out of “fiscal responsiblity.” Unnecesary wars and tax cuts for the rich are the method. I actually think the Beast is currently being starved—mostly by Democrats who are now in power.

    The other Republican ploy is the Two Santa Claus theory created by Jude Wanniski of the Wall Street Journal editorial page. Here's a great essay that explains 2 Santa Claus:

    http://www.commondreams.org/view/2009/01/26-0

    Why the inept Democrats don't talk about this stuff shows their ineptness.

  • seditious

    You bring up good points Jeff and Ryan regarding health insurance mandates but my opinion is not swayed.

    Of course the government has the Constitutional power to tax for expenditures such as public education and Social Security. There are a few lunatic right wing judges who think otherwise such as Clarence Thomas but they are fringe.

    And of course the government has the power to require that cars have seat belts and regulate products. My guess is that power comes through the Commerce Clause or General Welfare clause.

    The smoke detector example is interesting. The difference to me is that smoke detectors are cheap and it's an industry that does not get anti-trust exemption as the Health Insurance Industry does. Most health insurance markets are practically monopolistic.

    IMHO, private insurance mandates are a very dangerous precedent. It's the merging power of Big Government and Big Business. Big Business Lobbys will be looking for other ways that consumers can be forced to buy goods or services with IRS enforcement behind them.

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  • ryan

    Jude Wanniski was good for spending the remainder of his career writing against the Neo-Cons, and against the Invasion of Iraq.

    American history has always been about the redistribution of property. Candidates throughout the late 18th and 19th century competed with each other in terms of which of them would redistribute “frontier” land the fastest and most accessibly.

  • Shalom Seditious,

    I'm less of the opinion that Democrats are inept and more thinking that they're too damn independent.

    The Republican leadership is very good at keeping their members in line. The Democratic leadership much less so. At times I think that Republicans are dogs and Democrats are cats.

    I think it is the role of President Barack Hussein Obama to lead not only the country, but his party as well. President Johnson may have been the last Democratic president to actually lead his party.

    (On a minor note, President Richard Nixon defeated Vice President Hubert Humphrey in 1968, not LBJ as Hartmann writes.)

    Thank you for pointing me to Hartmann's article. I've been familiar with the strategy, but not with the name Jude Wanniski.

    B'shalom,

    Jeff

  • Shalom Seditious,

    I'm with you on not allowing the insurance industry to act as a oligopoly, but I don't think opposition on Constitutional grounds is going to work.

    Good people need to stand up demand that right be done.

    B'shalom,

    Jeff

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  • mvirenicus

    jeff, this comment was an insult to cats everywhere. i have four. while true that they can't be herded, if they behaved like democrats they'd be much skinnier. they know how to get what they want, and that includes actions in concert.

  • Shalom Mvirenicus,

    I get the joke, I really do, but I know far too many intelligent, but independently minded, Democrats to toss out the comparison.

    B'shalom,

    Jeff

  • mvirenicus

    jeff, on any other day i'd debate your definition of intelligence, but what about something known as party discipline? do the dems even have a platform these days? you know what i think when i hear the term “moderate” applied to a dem? fucktard. “ben nelson, fucktard member of the dem caucus from nebraska…” most irksome is that the dems obviously have no mechanism or procedures to keep their members in line. “harry reid, sexually impotent senate mormon leader today announced that the constitution will be rescinded because he heard a rumor that the british were unhappy and some fucktard in his own caucus will miss his tea.” sorry, but that's the democratic party and it's nothing new. why would anyone with a spine choose to associate with that?

  • Shalom Mvirenicus,

    Because until we can either reshape the Democratic Party or send it the way of the Whigs, it is far better than the alternative.

    B'shalom,

    Jeff

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  • Shalom Mvirenicu,

    I think I have a better analogy than herding cats.

    How about philosophers playing football!

    B'shalom,

    Jeff

  • Shalom Mvirenicus,

    I think Ive found a better metaphor: Philosophers playing football!

    B'shalom,

    Jeff

  • mvirenicus

    hehe. if only the reality were so benign, jeff. did you see the article at huffpo exposing the fact that ONE IN FIVE AMERICAN MEN between the ages of 18 and 54 DON'T HAVE A JOB!? sorry for shouting, but i thought it appropriate. this gives lie to the “official” unemployment stats, and obviously doesn't include the additional millions of americans who are “underemployed” at lousy part-time or otherwise minimum wage jobs, just waiting for “something better” to come along. god bless their little hearts. where is the party of the working man? oh, i'm sorry, it's become the party of the “middle class,” whatever the hell that is, but in reality is just as much in the pockets of the bankers as the gop. they simply have different approaches to maintaining the status quo. i can't believe the cpusa (communist party) still insists upon working within the democratic party as part of an overall “strategy.” where is the true leftist intelligentsia anymore? not in america, obviously. sorry for my rant and thanks for the laugh, jeff.

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