321 online
 
Most Popular Choices
Share on Facebook 32 Printer Friendly Page More Sharing Summarizing
OpEdNews Op Eds    H3'ed 3/30/12

When Is a Hack a Hack?

By       (Page 2 of 3 pages) Become a premium member to see this article and all articles as one long page.   No comments

Robert Parry
Message Robert Parry
Become a Fan
  (84 fans)

Serious Conservatives

We also might expect in an editorial on this important topic a reference to what the Commerce Clause actually says or an explanation of why serious conservatives, like senior Appeals Court Judge Laurence Silberman and Ronald Reagan's Solicitor General Charles Fried, came down solidly on the side of the law's constitutionality.

Silberman, a Reagan appointee, wrote the Nov. 8, 2011, ruling, for the U.S. Court of Appeals in Washington affirming the constitutionality of the Affordable Care Act. Silberman took pains to note the unrestricted wording of the Commerce Clause.

He wrote:

"We look first to the text of the Constitution. Article I, - 8, cl. 3, states: 'The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.' [Emphasis added by Silberman]

"At the time the Constitution was fashioned, to 'regulate' meant, as it does now, '[t]o adjust by rule or method,' as well as '[t]o direct.' To 'direct,' in turn, included '[t]o prescribe certain measure[s]; to mark out a certain course,' and '[t]o order; to command.'

"In other words, to 'regulate' can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term 'commerce' limited to only existing commerce. There is therefore no textual support for appellants' argument...that mandating the purchase of health insurance is unconstitutional."

Let's hear that again: "There is therefore no textual support" in the Constitution for challenging the individual mandate as unconstitutional. At that point, "strict constructionists," as all the GOP Five claim to be, should have begun folding their tent -- or got to work on a constitutional amendment to rewrite the Commerce Clause.

Instead, the GOP Five got busy "legislating from the bench," demanding that the Obama administration provide some "limiting principle" to apply to the Commerce Clause that would differentiate health insurance (or the hundreds of other federal provisions that hinge on this clause) from Justice Scalia's goofy what-if question about buying broccoli.

Nor did the Post's editorialists address former Solicitor General Fried's comments in a March 28 interview with the Post's Ezra Klein. When asked about the "limiting principle" issue, Fried responded:

"The limiting principle point kind of begs the question. It assumes there's got to be some kind of articulatable limiting principle and that's in the Constitution somewhere. What Chief Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress.

"Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story."

Tea Party Comments

Fried also criticized some of the specific comments by the Court's Republicans. Fried noted...

"Justice Kennedy said this fundamentally changes the relationship of the citizen to the government. That's an appalling piece of phony rhetoric.

"There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in in the '60s.

"That's a fundamental change. But this? This is simply a rounding out in a particular area of a relation between the citizen and the government that's been around for 70 years. ... Kennedy's Tea Party-like argument that this fundamentally changing the relationship between government and the citizen? Well, I was very sorry to hear it."

On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices' opposition to the law:

"I've never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don't get it."

Fried also took aim at the right-wing Heritage Foundation, which originated the individual mandate idea as an alternative to Democratic proposals for either a single-payer system or employer-mandated insurance, but now heatedly opposes its own concept. Fried said:

Next Page  1  |  2  |  3

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

Rate It | View Ratings

Robert Parry Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at
(more...)
 

Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Writers Guidelines

 
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

STAY IN THE KNOW
If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEd News Newsletter

Name
Email
   (Opens new browser window)
 

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

The CIA/Likud Sinking of Jimmy Carter

What Did US Spy Satellites See in Ukraine?

Ron Paul's Appalling World View

Ronald Reagan: Worst President Ever?

The Disappearance of Keith Olbermann

A Perjurer on the US Supreme Court

To View Comments or Join the Conversation:

Tell A Friend