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Ohio Appeals Court says government can indeed force you to buy what they tell you to buy

By a 2-1 vote, with a Bush appointee joining a Carter appointee on the yes side and a Reagan appointee the lone dissenter.

Yet another reason we need to elect constitutional conservatives and classical liberals, not corporatist Republicans or “pragmatic” moderates.

So. To recap: You have to buy what the government tells you to buy — the Constitution allows that, according to two people — but in the state of Washington, in King County, you can’t swim without a life vest.

Just like the Founding Fathers would have wanted!

64 Replies to “Ohio Appeals Court says government can indeed force you to buy what they tell you to buy”

  1. Jeff G. says:

    OT: but Romney is out selling himself as the guy who can work with Democrats!

    Yay, team R!

    Civil war time, coming soon to a pissed off town near you.

  2. Ella says:

    My mother ragged me incessantly in 2008 for not just sucking it up and voting for McCain. Yeah — she finally told me a couple of months ago that I made the right choice. OUTLAW.

    Between this and the crap going on in the “great” state of Texas, I’m pretty much never voting for a Republican ever again. For freedom.

  3. Entropy says:

    What’s going on in Texas?

  4. happyfeet says:

    Yes. Romney. Romney is a big believer in using government to force people into buying expensive gay shit.

    There’s just no way I could ever vote for him my whole life.

  5. Squid says:

    Romney is out selling

    I think you might have gotten those words in the wrong order, Jeff.

  6. Bob Reed says:

    And it’ll be even more vital this time around since there’ll surely be slots on SCOTUS needing filling. The last thing we need is for the balance of the court to shift even further left.

  7. Roddy Boyd says:

    I have not read the reasoning or briefs but I wonder what on earth they cobbled together for reasoning?
    Volokh will be good on this.

  8. Roddy Boyd says:

    forgive the overuse of the word “reasoning” above.

    I note that, per the decision, Congress can get around a prohibition against regulation of “inactivity” given the “special nature of healthcare.”

    So, that about answers Jeff’s concern about lifejackets: Even if you’re thinking about not doing it, the Feds may have an interest in circumscribing the behavior.

  9. Squid says:

    Why do the Courts never recognize the “special nature” of ME?

  10. Ella says:

    Entropy — the “no grope” bill in Texas actually says that it is impossible for any member of the TSA to commit any violation of the law unless limits are specifically defined in a Supreme Court ruling. As in, they can grope, insult, even rape “in the course of their duties” and it is a sacrosanct act. The original bill was the exact opposite, but Perry, Dewhurst (lt. governor), Patrick (senate), and the speaker (forgot his name) rewrote it so it “wouldn’t make Texas a laughing stock.”

    And then there’s extorting $300 million from Amazon to promise not to make them collect sales taxes till 2016 — because they (the Reps) are too cowardly to try to pass an unpopular law to tax internet sales and yet they want the sweet, sweet Amazon money. What to do? Just call a distribution facility the same as a store! Bang — give us money, or lose all your sales in Texas.

    God, I hate this state. I’m here for work, but these idiots make Mary freakin’ Fallin in Oklahoma look like an intellectual stalwart of principle.

  11. Ernst Schreiber says:

    I note that, per the decision, Congress can get around a prohibition against regulation of “inactivity” given the “special nature of healthcare.”

    What emanation flowing out from the penumbra of a shadow of what in the Constitution allows for that?

  12. happyfeet says:

    Ella the internet says the gropey grope bill died

  13. happyfeet says:

    the Amazon extortion doesn’t exactly put money in the state government’s pocket it’s pretty gay though and shows you a little bit about how Perry thinks about economic freedom

  14. Ella says:

    hf, thank God for the TSA thing. I am still THIS CLOSE to going all TSA on those idiot, evil, craven, insulting “law” “makers” in Austin.

    As for Amazon, I’m taking the “$300 million investment in the state” as a straight up solicitation for bribery.

  15. geoffb says:

    What emanation flowing out from the penumbra of a shadow of what in the Constitution allows for that?

    The Progressive Clause #22. No sanity in it.

  16. happyfeet says:

    did you spot the genius?

    Dick Lavine of the Center for Public Policy Priorities, which lobbies on behalf of low-income Texans, questioned whether the jobs Amazon proposes to bring to the state are the types of jobs Texas should be pursuing.

    “I understand we need jobs at all wage levels, but what we’re looking for is people who write books, not people who sell books and move them around,” Lavine said. “Warehouse jobs are not the way to build a 21st century economy.”

    but apparently the Amazon-raping was initiated by an R hoochie named Susan Combs. Susan went to Vassar. And UT Law. She ran unopposed in 2010 for her second term. Then she got bored and began to savagely rape nice gentle dot com companies.

    oh. Also she’s paying her colorist way too much money.

  17. geoffb says:

    OT:

    We talk about the real-estate bubble here. Now this is a real-estate bubble.

  18. JHoward says:

    I’m not sure how happy Amazon is these days. Constitutional stress, which I think I’ll coin, has them not mincing too many words:

    Hello,

    For well over a decade, the Amazon Associates Program has worked with thousands of California residents. Unfortunately, a potential new law that may be signed by Governor Brown compels us to terminate this program for California-based participants. It specifically imposes the collection of taxes from consumers on sales by online retailers – including but not limited to those referred by California-based marketing affiliates like you – even if those retailers have no physical presence in the state.

    We oppose this bill because it is unconstitutional and counterproductive. It is supported by big-box retailers, most of which are based outside California, that seek to harm the affiliate advertising programs of their competitors. Similar legislation in other states has led to job and income losses, and little, if any, new tax revenue. We deeply regret that we must take this action.

    As a result, we will terminate contracts with all California residents that are participants in the Amazon Associates Program as of the date (if any) that the California law becomes effective. We will send a follow-up notice to you confirming the termination date if the California law is enacted. In the event that the California law does not become effective before September 30, 2011, we withdraw this notice. As of the termination date, California residents will no longer receive advertising fees for sales referred to Amazon.com, Endless.com, MYHABIT.COM or SmallParts.com. Please be assured that all qualifying advertising fees earned on or before the termination date will be processed and paid in full in accordance with the regular payment schedule.

    Etc., etc. Emphasis mine.

  19. JHoward says:

    I just started using Amazon for everything UPS or FedEx can haul. And I shall never reside in the shithole called California.

  20. newrouter says:

    we be screwed:

    Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate.

    link

  21. geoffb says:

    Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.

  22. zino3 says:

    Yup.

    The “Founders” intent was to make a jug eared little monkey tell you what you MUST buy!

    Porch Monkey has taken on a wole new meaning.

  23. zino3 says:

    OOPS! Add an “H” there…

  24. geoffb says:

    The Martin-Sutton approach thereby opens the floodgates to an unlimited congressional power to impose mandates of any kind. Any failure to purchase a product has some substantial economic effect, at least when aggregated with similar failures by other people. This is certainly true of failures to purchase broccoli, failures to purchase cars, failure to by a movie ticket, and so on. Even failure to engage in noncommercial activity nearly always has such effects. For example, a mandate requiring people to eat healthy food and exercise every day can be justified on the grounds that it would increase economic productivity and also increase the demand for healthy food products and gym memberships. The district court rulings in favor of the mandate all embraced some version of the “health care is special” argument [or at least the argument that not purchasing health insurance is “economic activity”] in order to avoid this slippery slope problem (albeit, unsuccessfully, in my view). By contrast, Martin and Sutton take us all the way to the bottom of the hill in one fell swoop.

    Very screwed if this is upheld by SCOTUS.

  25. zino3 says:

    “Gay shit”.

    How perfect is THAT?

    Bend over, Dick Boy, and this WILL hurt, because you CAN’T conceptualize ass fucking, until Namcy Pelosi puts her stealth dick in your butt?

    Welcome to “Amourica”, bozos!

    Whoa! The Demoncrats message, put into “reality speak”.

    Fuck you, assholes. I am set for life, and you are just a fucking useless peon! I can fuck thirteen year olds, while YOU pay my freight!

    Friggin’ beautiful!

  26. serr8d says:

    @22 Oh, my. In the absence of JD, I’ll have to elevate the nose…

    DENOUNCED~!

    (OT, but if you listen real hard you can hear LeftLibProgg heads asploding, to the tune of ‘Taxman’… )

  27. Ernst Schreiber says:

    The boys in Detroit must be salivating.

    Pity “we” sold “our” shares for a loss, now that the judiciary has theoretically fiated a guaranteed return.

  28. dicentra says:

    In other news,

    A liberal’s idea of being a bad-ass is to say vicious things to a conservative public figure who can’t afford to strike back.… I know I’ll be safe because this person has better manners than I do.… [H]ow about a one-punch rule against anyone bothering a stranger in public?

  29. serr8d says:

    My Gawd, this is beautiful…

    Liberals are not like most Americans. They are the biggest pussies on Earth, city-bred weaklings who didn’t play a sport and have never been in a fight in their entire lives. Their mothers made excuses for them when they threw tantrums and spent way too much time praising them during toilet training.

    I lurves me some Ann Coulter, yes I do.

  30. newrouter says:

    “a regular “feeder” judge”

    i’m wondering if this sutton ain’t playing political games. you know next time he’s before congress dems for the next gig he points to this. either way a despicable opinion.

  31. geoffb says:

    Consider the Constitution as the operating system for our government. What is happening is that we are seeing various, previously un or little known security holes being highlighted as they are hacked by various entities of the left. Maybe even the one that Godel found is among the ones being used.

    The task now is to find the patches needed and get them installed before the entire system is taken over by the invaders. If/when the progressive hold on government is broken there will have to be a number of amendments to keep these particular hacks from working again.

  32. newrouter says:

    “If/when the progressive hold on government is broken there will have to be a number of amendments to keep these particular hacks from working again.”

    i disagree. the amendment process is too slow and too limited. we need a radical but orderly reduction in the size and scope of the fed. gov’t. for example: epa. it’s original mission has been accomplished it like nasa is a bureaucracy in search of something and money. spin most of the fed. gov’t does to the states. block grant medicare, medcaid and social security.

  33. newrouter says:

    also in radically downsizing the fed gov’t you take away the tools proggs use when or if they return to power.

  34. geoffb says:

    The 13th amendment took less than a year from proposal to ratification. The 14th took 2 years and the 15th took a year.

    Downsizing is fine and could be done quickly but can be changed back just as quickly. Amendments can make that downsizing closer to permanent. How about a Constitutional limit on size of the federal budget to a certain percentage of the nation’s GDP. Say 15%. Want to have more funds available? Act/govern/legislate in ways that grow the actual private sector economy.

  35. Jeff G. says:

    geoffb —

    It’s my understanding that Sutton didn’t vote to uphold the mandate but rather had a question about standing.

  36. geoffb says:

    My reading of his opinion is that he finds that Congress does have the power to force individuals to perform certain actions because they have the power to force individuals to not perform certain actions.

    There is another linguistic problem with the action/inaction line. The power to regulate includes the power to prescribe and proscribe.

    I’m no lawyer though. What “standing” issue are you talking about. I’m confused there.

  37. newrouter says:

    “It’s my understanding that Sutton didn’t vote to uphold the mandate but rather had a question about standing.”

    i somin disagrees:

    “At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.”

    link

    and standing i think is legal bs thing. “you can’t claim harm because we don’t think the time is right”

    see page 10

    link

  38. sdferr says:

    “time is right” sounds like a ripeness question. Those sorts of questions are important in the sense that they restrain courts from making rulings willy-nilly at their own discretion when no actual harm or event has taken place. I ain’t read any of the ruling though so don’t take any of this as probative. I’m only guessing in other words.

  39. newrouter says:

    “The 13th amendment took less than a year from proposal to ratification. The 14th took 2 years and the 15th took a year. ”

    yea but you’re believing that the proggs give a fig about the law. they don’t. if you radically downsize the fed gov’t you take away the tools they’ve acquired since 1932. this is a mission to limit executive power.

    also the era took 5-10 years to die. do you think any amendment put up by classical libs isn’t going to be given the palin treatment by the proggs?

  40. Ernst Schreiber says:

    The power to regulate includes the power to prescribe and proscribe.

    Buy American. It’s the Law!

    All our problems solved.

    At least until the money runs out.

  41. newrouter says:

    Ceci and Steven Hyder filed these declarations, it is true, after a third plaintiff,Jann DeMars, obtained private insurance during this appeal. These new declarations donot contradict anything that Ceci and Steven Hyder said in their earlier declarations, and
    there is nothing exceptional, or for that matter surprising, about the contents of them,which largely parallel the original DeMars declaration. The United States concedes thatthe original DeMars declaration established injury, Gov’t Letter Br. to this Court, at 3-5,as the district court concluded and we agree

  42. geoffb says:

    In his concurring opinion upholding the constitutionality of the Obamacare individual mandate, Sixth Circuit Judge Jeffrey Sutton argues that the plaintiffs’ case must fail as a “facial” challenge to the law because there are some applications of the mandate that are clearly constitutional. On the other hand, he leaves the door open for future “as-applied” challenges, which contend merely that the law is unconstitutional in certain specific cases:

    Which would seem ripe for waivers to be granted to those few for which it is unconstitutional while the vast majority must comply with the mandate.

  43. newrouter says:

    “Which would seem ripe for waivers to be granted to those few for which it is unconstitutional while the vast majority must comply with the mandate.”

    the male version of harriet meyers

  44. newrouter says:

    mr. geoffb,

    the amendment stuff is so much posturing. congress needs to seize control of the bureaucracy. the congress has let epa through it’s pass the buck mentality rule on a fraud like “climate change”. it has let an unelected judiciary rule on “climate change”. the congress needs to assert it’s rule in the division of power. speaker boner not so much.

  45. Jeff G. says:

    I haven’t read the ruling. Just something I heard someone say on radio.

  46. Jeff G. says:

    So the Constitution, a document intended to limit the power of a centralized government, has now been held — in an appeal to itself — to give the federal government unlimited power, all under the commerce clause.

    Is that about where we are, legally speaking?

  47. sdferr says:

    Yep, certainly with regard to some significant fraction of the judiciary. How significant though, we don’t know as yet. Broccoli, the meditative substance. Ommmmm.

  48. sdferr says:

    Thinking on it a bit though, we may have been unwittingly in this position since the unanimous Wickard decision. And it’s taken this long to bring the fundamental stomping into the light.

  49. geoffb says:

    the amendment stuff is so much posturing.

    Mom always said my posture was terrible, it seems that you agree since I was the one saying it and not just quoting someone else. My thoughts are the posturings I see.

    You can do all that you say to do and it is still just one election away from being changed by 180. Do it fine but I still say the only semi-permanent, there is no permanent, solution is through amendment. Takes control of Congress and 38 States legislatures.

  50. Jeff G. says:

    The Constitution, like Machiavelli’s Prince (provided you don’t, as I do, see it as a parody), is a self-deconstructing document. We’ve so bastardized interpretation and the judicial system that what was clearly meant to circumscribe the federal government is the very thing that, when pressured, gives it unlimited authority to act as our slaveholder.

  51. newrouter says:

    “You can do all that you say to do and it is still just one election away from being changed by 180. Do it fine but I still say the only semi-permanent, there is no permanent, solution is through amendment. ”

    mr. baracky ignores you. takes his keys away congress. divided gov’t yes. and when these critters run ask them about the “imperial precedentcy”?

  52. newrouter says:

    “gives it unlimited authority to act as our slaveholder.”

    i’m fond of pointing out the demonrats party’s slave/jim crowe tendencies. red eye should do an hour on this in a jocular way. hey al sharpton YOUR country supported slavery. hey al sharpton YOUR PARTY supported slavery. for the reaction!

  53. Patrick Chester says:

    So the Constitution, a document intended to limit the power of a centralized government, has now been held — in an appeal to itself — to give the federal government unlimited power, all under the commerce clause.

    Is that about where we are, legally speaking?

    The polite way of describing it.

  54. Cyber Johnny says:

    The core argument made by the people who brought suit was that Obamacare was unconstitutional on its face. Judge Sutton essentially disagreed that it was unconstitutional on its face, but did not rule on its constitutionality in application because nobody has been forced to buy anything yet. This is the standing issue – no harm, no foul – yet. He warned that when the first person who is forced to purchase insurance complains about how the law unconstitutionally forces him to do so, then that person’s legal claim is open. Just because this court ruled Obamacare is not unconstitutional on its face, does not mean it won’t be proven unconstitutional in its application to a given person. I think…

  55. sdferr says:

    Or ruled unconstitutional on its face by yet another court.

  56. Ernst Schreiber says:

    Even if the commerce clause allowed Congress to regulate via proscription, how is that either necessary or proper?

  57. geoffb says:

    Ah. No one has standing yet because the law has not forced anyone to buy anything yet. Ok.

    Trouble is that since they are implementing much, other than the mandate, now then by the time we get someone with standing it will be a fait accompli. So that means either some other ground must be found or we have to win enough in 2012 to repeal it.

  58. geoffb says:

    Another view.

    So, contrary to Katyal’s protestations at the various oral arguments and the opinions of Judges Martin and Sutton, the class of activities at issue is the mere presence in the country without qualifying health insurance, and the question really is whether Congress may mandate the purchase of a given good or service. In other words, the question is whether such a mandate itself is facially constitutional as an exercise of federal power, not whether we can identify a range of situations in which such a mandate could be constitutionally applied.

  59. Nolanimrod says:

    And no smoking while you’re swimming. Under penalty of law!

  60. Joe says:

    This decision by Sutton is very bad. He is a former Supreme Court clerk and the justices know him. He argued states right cases to the Supremes. He is a respected circuit judge by guys like Kennedy. That is why opponents to Obamacare are very much freaked out by his ruling on this–and why the Obamaphiles are smiling today.

    So maybe we better put on our life vests. This ship is going down.

  61. Joe says:

    Since the 1930s, after the Depression spurred federal intervention to revive the economy, the high court “has given Congress wide berth in regulating commerce,” Judge Sutton wrote.

    Those decisions were fucked. This decision needs to be overturned.

    The 10th amendment needs to be enforced:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  62. Yackums says:

    Maybe Sutton just wants to “feed” this case to the Supremes now, in case Zero gets reelected and the Court lurches further leftward. He could think this might be the last chance. And maybe his buddy Scalia assures him the votes against the mandate will be there.

    Risky gambit…if even possible.

  63. Showy says:

    Technically, the Sixth Circuit isn’t an Ohio Appeals Court, it’s a federal appeals court with jurisdiction in Ohio, Michigan, Kentucky, and Tennessee.

  64. Jeff G. says:

    Technically, the Sixth Circuit isn’t an Ohio Appeals Court, it’s a federal appeals court with jurisdiction in Ohio, Michigan, Kentucky, and Tennessee.

    I didn’t write the title; it’s the title of the article I quoted from.

    GODZILLA!

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