Much fuss has been stirred up in the aftermath of the healthcare reform vote, and even before the vote, over the constitutionality of an individual mandate to get coverage.  Republicans and conservatives have taken aim at this provision and set their sites on bringing down healthcare because of it.  Many believe that the government "forcing" people to buy healthcare coverage is unconstitutional.  I am not a big fan of the mandate, but I understand the rationale that went along with it when it was decided upon to be included in the bill.  Constitutionality determinations are best left to the professionals themselves who study Constitutional law.  An interesting Politico story opened my eyes to the whole situation.  

Erwin Chemerinsky specializes in American Constitutional Law and has boosted himself right into the healthcare debate that now ensues.  His recent Politico piece will have some thinking a little harder about Constitutionality.

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America’s health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

I'm much more inclined to believe someone who studies Constitutional Law at Harvard than a yahoo toting a gun and screaming socialism at the top of their lungs, but lets read on and see just what Chemerinsky means by this.

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

He cites Article I section 8 of the Constitution, and more specifically Clause 1 stating that:  "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"  

The gray area (gray? grey?) is where does laying/collecting taxation etc. stand in regards to our current bill?  The mandate must stay within the lines of taxation and spending powers that the government has.  According to Chemerinsky, the "mandate" does just that.  

Just some food for thought.

For the article in its entirety, check out this link

http://www.politico.com/news/stories/1009/28620.html

Much fuss has been stirred up in the aftermath of the healthcare reform vote, and even before the vote, over the constitutionality of an individual mandate to get coverage.  Republicans and conservatives have taken aim at this provision and set their sites on bringing down healthcare because of it.  Many believe that the government "forcing" people to buy healthcare coverage is unconstitutional.  I am not a big fan of the mandate, but I understand the rationale that went along with it when it was decided upon to be included in the bill.  Constitutionality determinations are best left to the professionals themselves who study Constitutional law.  An interesting Politico story opened my eyes to the whole situation.  

Erwin Chemerinsky specializes in American Constitutional Law and has boosted himself right into the healthcare debate that now ensues.  His recent Politico piece will have some thinking a little harder about Constitutionality.

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America’s health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

I'm much more inclined to believe someone who studies Constitutional Law at Harvard than a yahoo toting a gun and screaming socialism at the top of their lungs, but lets read on and see just what Chemerinsky means by this.

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

He cites Article I section 8 of the Constitution, and more specifically Clause 1 stating that:  "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"  

The gray area (gray? grey?) is where does laying/collecting taxation etc. stand in regards to our current bill?  The mandate must stay within the lines of taxation and spending powers that the government has.  According to Chemerinsky, the "mandate" does just that.  

Just some food for thought.

For the article in its entirety, check out this link

http://www.politico.com/news/stories/1009/28620.html

Much fuss has been stirred up in the aftermath of the healthcare reform vote, and even before the vote, over the constitutionality of an individual mandate to get coverage.  Republicans and conservatives have taken aim at this provision and set their sites on bringing down healthcare because of it.  Many believe that the government "forcing" people to buy healthcare coverage is unconstitutional.  I am not a big fan of the mandate, but I understand the rationale that went along with it when it was decided upon to be included in the bill.  Constitutionality determinations are best left to the professionals themselves who study Constitutional law.  An interesting Politico story opened my eyes to the whole situation.  

Erwin Chemerinsky specializes in American Constitutional Law and has boosted himself right into the healthcare debate that now ensues.  His recent Politico piece will have some thinking a little harder about Constitutionality.

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America’s health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

I'm much more inclined to believe someone who studies Constitutional Law at Harvard than a yahoo toting a gun and screaming socialism at the top of their lungs, but lets read on and see just what Chemerinsky means by this.

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

He cites Article I section 8 of the Constitution, and more specifically Clause 1 stating that:  "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"  

The gray area (gray? grey?) is where does laying/collecting taxation etc. stand in regards to our current bill?  The mandate must stay within the lines of taxation and spending powers that the government has.  According to Chemerinsky, the "mandate" does just that.  

Just some food for thought.

For the article in its entirety, check out this link

http://www.politico.com/news/stories/1009/28620.html

Crossposted at Motley Moose

It is not a liberal who's saying this. It is the author of DOMA (Defense of Marriage Act), former Congressman Bob Barr saying so. First he admits that DOMA was indeed designed to pre-empt the judicial process.

DOMA was indeed designed to thwart the then-nascent move in a few state courts and legislatures to afford partial or full recognition to same-sex couples. The Hawaii court case Baehr vs. Lewin, still active while DOMA was being considered by Congress in mid-1996, provided the immediate impetus.

Barr explains in his column in LATimes that there are two parts to DOMA and their explicit aims.

The Hawaii court was clearly leaning toward legalizing same-sex marriages. So the first part of DOMA was crafted to prevent the U.S. Constitution's "full faith and credit" clause -- which normally would require State B to recognize any lawful marriage performed in State A -- from being used to extend one state's recognition of same-sex marriage to other states whose citizens chose not to recognize such a union....

However, we did incorporate into DOMA's second part a definition of marriage that comported with the historic -- and, at the time, widely accepted -- view of the institution as being between a man and a woman only. But this definition was to be used solely to interpret provisions of federal law related to spouses....

Barr wrestled with the unconstitutionality of the DOMA like President-elect Obama. Today he concludes that DOMA actually had become a 'club' to prevent the ability of a State to recognize same-sex unions.

In effect, DOMA's language reflects one-way federalism: It protects only those states that don't want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws -- including, immigration, Social Security survivor rights and veteran's benefits -- has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Then it seems that Barr's libertarian side is winning over his conservative religious side. He wrote "It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves." Can't say it any better....

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

And he agrees with our famed Constitutional Scholar President elect Obama....

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, "Decisions about marriage should be left to the states." He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

Thirteen years ago, this man was the architect of a highly discriminatory law. He is still not admitting that DOMA is plain and simple legitimized discrimination practised by Government against the same sex couples. But from the State's rights perspective, he is coming to the same conclusion as Obama and rest of us that DOMA needs to go. And it seems, he is moving towards a position that Government should not be in business of denying marriage status to folks based on sexual orientation.

Congressman, I don't think I liked your politics in 90s, but today your column opened the door for dialog on this important issue a little bit..For that, a big Thank you.

Read Bob Barr's full column at Los Angeles Times.

Link to Bob Barr's column at LATimes

There's more...

Cross-posted at The October Protocol.

The NYT ran a long feature Wednesday about the twelve years Barack Obama spent teaching law at the University of Chicago. The paper's framing of the story is that Obama kept himself aloof from the Chicago faculty, made his political ambitions known, and shrewdly kept his positions on policy questions such as affirmative action and government regulation close to the chest.

"He surfaced all the competing points of view on [Lani] Guinier's proposals with total neutrality and equanimity," says Prof. David Franklin, sounding a familiar theme about Obama that he excels at dispassionate analysis, with a gift for empathizing with both sides of hot button issues.  The flipside to this gift, of course, is that it leaves people heavily invested in academic and intellectual camps wondering whose side he's really on.

My take on the article's portrait of Obama as a professor, and the insights that can be gleaned from his Constitutional Law exams and answer keys, is that they confirm my view of him as a thoughtful and careful legal mind more interested at getting at the heart of policy disputes than in resolving them.  His course materials emphasize the realities of racism, disenfranchisement, and poverty--and the distortions those realities have on a democratic political process--while at the same time acknowledging the failures of heavy-handed attempts to fix them from the top down.  One question from a 1996 exam asked students to analyze two hypothetical proposals by a black mayor, in a heavily segregated city split 50-50 between blacks and whites with a significant history of institutional racism in the power structure, to ensure that the awarding of construction contracts and the hiring of firemen better reflect the city's racial composition.  Both proposals are facially race-neutral, with the construction proposal skewing toward companies based in low-income neighborhoods and the fireman proposal doing away with a (possibly culturally-biased) written exam.

Obama's answer key to both questions isn't earth-shattering: he's looking for students to analyze the right cases (Aderand, Croson, Washington v. Davis, etc.) and put forth good arguments about the level of scrutiny such proposals would face in court and the likelihood of surviving.  What strikes me though is his understanding that it's not enough to believe that the mayor is right, or that his proposals are a good idea--you have to convince a court that the proposals play by the rules the Supreme Court has set down regarding discriminatory intent, narrow tailoring to a compelling state interest, and so forth.   He seems keenly aware that knowing your arguments are the right ones is not enough in a sprawling, diverse democracy: you need to take seriously the opposing views, pare the issues down to their cores, search for the common ground, and move from there.

Lawyers are trained to be advocates, to take a goal (my client's best interest) and pursue any and all threads that lead to that goal while ignoring, minimizing, or attacking those that don't.  Obama's not an advocate.  He's a balancer.  He doesn't make a stand and then use whatever arguments happen to be convenient to defend that stand til the crack of doom--he weighs competing sides, acknowledges the impossibility of always being right, and looks for common ground.  So when Richard Epstein complains that "he's always been a thoughtful listener and questioner, but he's never stepped up to the plate and taken full swings," he means Obama's never planted his flag in the sands of an idea and loaded his guns to defend it, right or wrong.

Which is exactly what voters sick of pig-headed, reflexive partisanship find so refreshing.

By way of reflexive balance, I note the extensive use of the words "I" and "me" in Obama's memos and communications to his law classes.

There's more...