30 Replies to “Obamacare upheld”

1. geoffb says:

   February 23, 2011 at 12:21 am

   Should I take this to mean that Congress may now regulate speech by regulating the mental intent that causes the utterance to be spoken? That seems to be a de jure version of what the left through PC has been doing de facto.

2. geoffb says:

   February 23, 2011 at 12:36 am

   Interesting Judge, for certain uses of the word interesting.

3. Joe says:

   February 23, 2011 at 12:55 am

   I would joke about death threats, but this is not going to end well.

4. Danger says:

   February 23, 2011 at 1:11 am

   Ok kiddies lets complete this circle:

   Lets say you choose not to attend a church. Churches accept offerings which are a form of economic activity. So I guess Congress can pass a law requiring us to choose a church or better yet have one chosen for us. Of course the church you may be attending will have to offer a certain level of services.

   Not to worry though, if your church can’t comply the Obamachurch will provide.

5. geoffb says:

   February 23, 2011 at 1:25 am

   Shirking is not to be allowed. It is the predicate to wrecking.

6. Nolanimrod says:

   February 23, 2011 at 1:50 am

   Jeff G linking to a Patterico post. Uh-huh. Sure. Nothing weird here. Say, how many suns are going to come up tomorrow?

7. John Bradley says:

   February 23, 2011 at 2:40 am

   Ilya Somin analyzes the thing over at Volokh.

   While explaining the Left’s “healthcare is special” ‘reasoning’ behind the mandate, etc., he says this: (emph. added)

   Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision. This is true regardless of whether the producers must provide services to some consumers for free or not. […] Judge Kessler’s approach would allow Congress to impose any mandate of any kind so long as it also required at least some producers to provide their product to at least some consumers for free. This too is a road to virtually unlimited federal power to impose mandates, since producers in any industry would be happy to accept a minor “free service” obligation so long as it was coupled with a more lucrative purchase mandate.

   Which I thought was an interesting point.

8. B. Moe says:

   February 23, 2011 at 5:01 am

   Apparenty the First Amendment covers all speech except “No thank you.”

9. B. Moe says:

   February 23, 2011 at 5:11 am

   And wouldn’t this mean it would be perfectly fine to enact legislation making it illegal to refuse a job offer if you are unemployed?

10. alppuccino says:

    February 23, 2011 at 5:21 am

    …or illegal to refuse to provide your birth certificate in order to meet certain job qualifications?

11. alppuccino says:

    February 23, 2011 at 5:25 am

    …or illegal to eat all the spare ribs at the buffet thereby reducing the proprietor’s ability to put another trough of ribs out for other hippo-crit rib gluttons? Which in turn damages said proprietor economically, and furthermore disenfranchises all other fat-assed, preachy rib-addicts? A twofer. Maybe?

12. B. Moe says:

    February 23, 2011 at 5:34 am

    Depends on if it is an all you can eat buffet, in which case it may be illegal to actually eat all you can thereby putting an undue financial burden on the owner. And on pork futures.

    I can eat a lot of ribs.

13. alppuccino says:

    February 23, 2011 at 5:41 am

    And here you thought you had nothing in common with FLOTUS Moe.

14. alppuccino says:

    February 23, 2011 at 5:42 am

    She’s a uniter.

15. zamoose says:

    February 23, 2011 at 5:42 am

    We’ve been walking our kids through the Westminster Shorter Catechism of late and have spent a good deal of time discussing sins of omission versus sins of comission. It’s good to know the gov’t agrees with Reform theology in general and the Presbyterian Church in America in particular in regards to the spiritual implications of ObamaCare. Makes things easier come Judgementtax day.

    St. Crispin’s Day on a cracker, we’re hosed…

16. JHoward says:

    February 23, 2011 at 5:55 am

    Also from the Volokh piece:

    This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car.

    Judge Kessler blames the plaintiffs for supposedly choosing to “‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals [must dispense] free emergency service to the uninsured.

    The bolded portion cannot be emphasized enough. In fact, it’s unconscionable that any consideration of federally-mandated economic anything be largely contingent on a law that is itself impossible to be seen as constitutional — any tyranny of a Congressional majority can make it legal to take by force from independent and private vendors, and obviously at least one has. But is it constitutionally lawful to legalize theft, even when still earlier federal medical programs, in effect, had already manipulated, over-regulated, and preyed on that same medical industry as their inherent function?

    Very slippery slopes.

    What blows me away is that these horseshit district-level opinions are held as logical, thorough and proper. My dog reasons better than this.

17. Slartibartfast says:

    February 23, 2011 at 6:09 am

    Jeff G linking to a Patterico post. Uh-huh. Sure. Nothing weird here. Say, how many suns are going to come up tomorrow?

    I don’t see any inherent problems in the idea that Patterico can be right from time to time, or concerned by the same things that concern Jeff.

    More likely, though, Jeff is doing this to unleash the horde of slavering morons in his echo chamber on Patterico’s blog once again. Or maybe I’ve been reading his jury members too much.

18. serr8d says:

    February 23, 2011 at 6:39 am

    Congress can monitor (and thusly regulate) “Mental Activity” now. Just as we figured.

    They so want to be God.

19. serr8d says:

    February 23, 2011 at 6:43 am

    Jeff G linking to a Patterico post.

    Actually, that’s Aaron Worthing’s post, who is not near the rabid jackalope that that blog’s proprietor seems to be. And if you recall, Frey is quick to throw his sub-bloggers under the bus just as soon as he gets to feeling a bit embarrassed about anything they’ve posted.

20. Darleen says:

    February 23, 2011 at 6:43 am

    As William Jacobson points out, we’ve gone from this

    The Congress shall have power…. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

    to this

    As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

    We are living in the time of Atlas Shrugged …

    (I’m specifically thinking of the part of the book where regulations that are imposed that declare the current year Year 0 and people are directed to purchase no more or no less then they did in that base year … the government would consequently decide when to allow increased economic activity)

21. serr8d says:

    February 23, 2011 at 7:09 am

    From geoffb’s second link…

    On October 10, 2007, the Washington Post headlined “Judge Orders U.S. Not to Transfer Tunisian Detainee,” and reported that Judge Kessler “ruled last week that Mohammed Abdul Rahman cannot be sent [from Guantanamo] to Tunisia because he could suffer ‘irreparable harm.” The detainee’s lawyer said, “The executive has now been told it cannot bury its Guantanamo mistakes in Third World prisons.” He also stated that, “This is the first time the judicial branch has exercised its inherent power to control the excesses of the executive as to treatment of prisoners at Guantanamo Bay.”

    From controlling to upholding.

    This can’t get to the Supreme Court quickly enough.

22. Pablo says:

    February 23, 2011 at 7:18 am

    What would Anthony Kennedy think? I’m guessing he’d laugh at it first and then sternly wag his finger at Gladys.

23. Lost My Cookies says:

    February 23, 2011 at 7:24 am

    Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

    Welp. There goes abortion.

24. motionview says:

    February 23, 2011 at 7:55 am

    Load the muskets? The next thing you know you’ll be telling us that it’s time for bloodshed. Oh wait, you’re not a Dem Congresshole.

25. serr8d says:

    February 23, 2011 at 8:02 am

    Load the muskets?

    That’s not what the cool kids are using.

26. Alec Leamas says:

    February 23, 2011 at 8:03 am

    I’d imagine that all those millions of car-less folks in Manhattan could really give GM, Ford, and Dodge a mighty shot in the arm if they were required to buy new cars – hell, make it spendy Silverado 2500s, F-250s and Ram 2500 for an interesting lifestyle juxtaposition. I’m not saying they have to drive the trucks, only that their decision to skip happily to their barista shifts is having a deleterious effect upon the Big Three, and therefore the economy as a whole.

27. cranky-d says:

    February 23, 2011 at 8:16 am

    Since the people of Manhattan really don’t have a place to park those trucks, and they will never actually use them, perhaps they should just send the money they would have spent to GM or Dodge (Ford, after all, is currently not government-owned). That would be fair, right?

28. Curmudgeon says:

    February 23, 2011 at 8:32 am

    Jeff G linking to a Patterico post. Uh-huh. Sure. Nothing weird here. Say, how many suns are going to come up tomorrow?

    Whatever Patterico’s faults, he is spot-on here. I think we patriots have enough enemies without internecine squabbling.

29. McGehee says:

    February 23, 2011 at 8:39 am

    As noted above, that guy from Futurama didn’t write the post Jeff linked; it’s a co-blogger.

30. Joe says:

    February 23, 2011 at 8:46 am

    Actually, that’s Aaron Worthing’s post, who is not near the rabid jackalope that that blog’s proprietor seems to be. And if you recall, Frey is quick to throw his sub-bloggers under the bus just as soon as he gets to feeling a bit embarrassed about anything they’ve posted.

    That would be interesting Serr8d, what ever happened to Patterico’s blog posters. Kinda like what ever happened to the kids who went over to John Wayne Gacy’s place…analogically of course.

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