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VirtualCongress November 15th, 2017 7:08pm

Supreme Court Case: California v. United States Department of Health and Human Services brought by TheSpookyGhost

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jadeburt Ann Arbor, Michigan
11/18/17 5:28 am

I’ll post my full ruling around 1pm eastern.

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jadeburt Ann Arbor, Michigan
11/18/17 11:40 am

I didn't get to it as soon as I thought. It'll be closer to 2:15.

jadeburt Ann Arbor, Michigan
11/18/17 1:49 pm

This ruling will be relatively lengthy because the court is being asked to declare a law unconstitutional. Justice Louis Brandeis wrote in Ashwander v. Tennessee Valley Authority: “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of the constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
In other words, if you can interpret a statute in a constitutional way, you should do that rather than declare the statute unconstitutional. So, having said that, I don’t take declaring laws unconstitutional lightly. Despite the high bar required to declare a law unconstitutional, this particular law meets that standard which is why I will be ruling for the plaintiff. To explain my ruling, I will need to address the clauses that have been brought forward by the defense as possibly providing a constitutional grounding for

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jadeburt Ann Arbor, Michigan
11/18/17 1:50 pm

the Better Insurance Act.

Before I even begin, I want to add that I began by searching the VC Constitution for the provisions in Article 1 of the US Constitution to see their exact wording and it became apparent to me that there was no trace of them in the VC Constitution. Article 1 of the VC Constitution talks about the executive. Article 2 talks about the Judicial branch. Article 3 talks about the Impeachment process and then there’s a bunch of amendments. The Handbook also provides little detail about what laws are within the bounds of the Congress. Obviously, since we are a Congress, the only logical basis for where our lawmaking bounds are set is the US Constitution. Plus, there has been a long tradition of VC Supreme Court justices and legislators referencing Article 1 of the US Constitution as though it applied to the VC. I concur with them that it does. It seems that pretty much everyone is in agreement that Article 1 of the US Constitution applies to the VC so I will

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jadeburt Ann Arbor, Michigan
11/18/17 1:51 pm

include clauses from Article 1 as possible sources of authority for the Better Insurance Act. However, it may be best for someone to actually propose a constitutional amendment that formalizes the fact that Article 1 of the US Constitution is a part of the VC Constitution.

The first and simplest clause that some would bring forward as a basis for this law is the “necessary and proper” clause. However, this clause doesn’t give the government power to do whatever it deems “necessary” or “proper”. The full clause says Congress has the power “to make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department thereof.” So, in order to stake a claim to constitutionality on the necessary and proper clause, you must also point to an explicit grant of power found in article 1 section 8 or elsewhere in the Constitution.

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jadeburt Ann Arbor, Michigan
11/18/17 1:51 pm

Then, we get to the most common clause the advocates of the Better Insurance Act have been advocating. They say that the clause that the necessary and proper clause is pointing to that gives the constitutional authority for the law is the “general welfare” clause. The exact wording of the general welfare clause is as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; …” The first thing to note about this clause is that the phrases “to pay the debts and provide for the common defense and general welfare are not grants of power to Congress. Actually, they are limits to Congress’ power to lay and collect taxes, duties, imposts, and excises.

The next question is obviously, well, the Better Insurance Act is for the general welfare, so it is within Congress’s ability to lay and collect taxes to fund its new law.

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jadeburt Ann Arbor, Michigan
11/18/17 1:53 pm

*whether the Better Insurance Act is for the general welfare, so if it is within Congress's ability to lay and collect taxes to fund it's new law. However, we should look back to those who wrote the Constitution to see what they meant by the phrase. In fact, in Federalist Paper #41, James Madison directly addresses this definition. He writes, “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed that the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States’ amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction. …

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jadeburt Ann Arbor, Michigan
11/18/17 1:54 pm

What color can the objection have when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?... For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” I apologize for the long quote, but I wanted to provide the full context. Clearly, James Madison, the father of the Constitution, was of the opinion that the phrase beginning Article 1 Section is speaking broadly and the specifics of what is meant by “general welfare” and “common defense” is included in the remainder of the Section in the long list of specific powers granted to Congress.

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jadeburt Ann Arbor, Michigan
11/18/17 1:54 pm

Again, just to summarize the argument over the ‘general welfare’ clause, the anti-federalists were concerned because they were concerned that some group in the future would interpret the clause exactly like the backers of the Better Insurance Act are currently interpreting it. The Federalists replied by saying, that’s ridiculous. That was never meant to be what the clause was interpreted to mean. In other words, at the time of our nation’s founding, there was no desire for this clause to be a grant of power to do all things in the general welfare and it was not written to provide that power.

So, we keep coming back to the list of enumerated powers in Article 1 Section 8. Is there anything in there that provides a legal basis for the Better Insurance Act? This actually brings us back to the original argument of the plaintiff. The plaintiff’s argument is that the “law creates a public, government-run insurance agency to compete with private companies.”

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jadeburt Ann Arbor, Michigan
11/18/17 1:55 pm

He contends that the so-called public option is in excess of the grant of power to the government through the Commerce clause because “the Better Insurance Act in no way regulates the current policies of private insurance companies. All it does is create a new company, which the federal government has no right to do.” So, let’s turn to the last leg the backers of the law have to stand on: the commerce clause.

Again, let’s provide the actual words of the commerce clause for understanding: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Clearly, the parts of this referencing foreign nations and the Indian tribes are not applicable. So, the question we must ask ourselves is whether the explicit power of the federal government to “regulate commerce among the several states” is enough power to base this law on.

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jadeburt Ann Arbor, Michigan
11/18/17 1:56 pm

This court argues that creating a market for purchasing insurance and engaging in commerce itself by being a vendor of this insurance competing against private business is not the same thing as regulating commerce among the several states. I must also ask: if we don’t strike this law down and agree that Congress has the power to both create and participate in markets and we take supreme court precedent from the ACA that Congress can obligate people to participate in commerce by calling it a tax, what limits are left to the power of Congress with regard to economic regulation? In effect, not striking this law down lets Congress create commerce, participate in it, and compel others to participate in the economic markets they are a part of. That sounds a little too much to me like we are empowering Congress to be judge, jury, and executioner. Giving them all that power far exceeds the grant of power in the text of the Constitution.

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jadeburt Ann Arbor, Michigan
11/18/17 1:56 pm

It is unconstitutional for the government to create a corporation since that goes far beyond regulating interstate commerce.

The President, and chief writer of the law, lucaval, says, “This isn’t a corporation, but merely a service that is paid for (just like the irs (sic) charging fees, public schools, libraries, and other public entities that charge money for other services).” I disagree. First, the school system is not run by the federal government so while those perhaps compete with private enterprises, it is states that run the schools. But, furthermore, the power of the government to create the IRS is well-grounded in its power to collect taxes. There is no private agency that collects taxes and it is an explicit power of the federal government. Finally, while there are both private museums and libraries, and those run by the federal government, those are not a function of the commerce clause, but of Article 1 Section 8 Clause 17:

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jadeburt Ann Arbor, Michigan
11/18/17 1:57 pm

“To exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” I would consider institutions like the Smithsonian and the library of Congress to be needful buildings. It could also be considered (perhaps) a part of the federal authority “to promote the progress of science and useful arts…” found in clause 8.

Furthermore, in response to lucaval, I would argue that this is just renaming a corporation. What is a corporation, if not a vendor of a service (or good) that is paid for? As Shakespeare might say, you’re just calling a rose by another name. I echo the plaintiff in saying, “This is a public corporation with services that customers have to pay for.” The commerce clause’s grant of power to regulate commerce between the states makes no such provision for the federal government to establish a corporation to compete with

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jadeburt Ann Arbor, Michigan
11/18/17 1:57 pm

commerce in the states.

If the law in question regulated the insurance industry by restricting the plans it sold or if it were a law prohibiting insurance from being sold across state lines (or providing limits on such actions), that would be constitutional, but perhaps unpopular. No one disputes that the ACA’s restriction on what types of plans can be sold was constitutional – it’s the individual mandate that was being challenged. The law goes far beyond what was allowed by the Constitution, and therefore, I must rule for the plaintiff and strike down this affront to our Constitution.

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jadeburt Ann Arbor, Michigan
11/18/17 1:58 pm

In closing, I read over the alternative arguments presented by johonmilla in an amicus brief. My summary is as follows: There is no explicit right to health care. FDR proposed one in his 1944 state of the union, but it was never adopted. Previous Supreme Court rulings like Roe v. Wade, regardless of your opinion of the ruling, might provide a basis for an activist judge to declare some supposed right to medical care at your own expense, but certainly not that you have a right to medical care at the expense of the government (and taxpayers). In fact, there is Supreme Court precedent that you don’t have a right to medical care at taxpayer’s expense in Harris v. McRae. The rest of the article dealt with the government’s taxation power which does not come into play here because this is a dispute about whether the government has a right to create economic markets and participate in them. The individual mandate was a debate over whether the government could force other people to

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jadeburt Ann Arbor, Michigan
11/18/17 1:59 pm

participate in a market by means of a tax. The difference is that the ACA case dealt with the government regulating the actions of individuals while this case deals with defining how involved the government is allowed to be in commerce. And, for the record, the Supreme Court found the ACA law in violation of the commerce clause (but largely saved it on the tax distinction that doesn’t apply here). This law goes far beyond that law in terms of violating the commerce clause and has no complementary taxation element.

I find this case to be clearly, without a doubt, one that should result in a ruling in favor of the plaintiff.

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jadeburt Ann Arbor, Michigan
11/18/17 2:01 pm

And find the Better Insurance Act unconstitutional.

TheSpookyGhost paleoconservative
11/17/17 5:43 pm

Since several justices are pointing to the general welfare clause in their rulings, let me just take the time to point out what the general welfare clause actually says:

"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"

The purpose of this clause was merely to establish Congress's power to collect taxes, duties, imposts and excises. The actions that constitute the common Defence and general Welfare are listed afterwards. If the Founding Fathers had interpreted the "general Welfare" to give broad, sweeping authority to Congress, as some of the justices seem to think it does, then they wouldn't have gone through the trouble to list all those clauses that constitute the common Defence and general Welfare. I urges the justices that have ruled using the nonsubstantive general Welfare clause to reconsider and for those that have not to consider what I have said.

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TheSpookyGhost paleoconservative
11/17/17 5:45 pm

@hokiejac @MrAmerica @jadeburt @Zackistan @political

political Georgia
11/17/17 6:10 pm

I’ll read through this when I’m not so tired!

jadeburt Ann Arbor, Michigan
11/18/17 2:02 pm

Just posted my ruling. It took a while because I wanted to do something thorough for such an important case of such huge implications.

TheSpookyGhost paleoconservative
11/17/17 12:40 am

Bower, not repealing it is what would set a dangerous precedent for what the government can do.

Lucaval, this is not a service. This is a public corporation with services that customers have to pay for. This is a government-run company, the first of its kind, and would create dangerous precedent for the further nationalizing of private industries.

@MrAmerica @jadeburt @Zackistan @political Please let me know if you have any concern or questions.

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TheSpookyGhost paleoconservative
11/17/17 12:41 am

Oops, that was meant as a reply to lucaval's thread below me.

@lucaval @bower8899

bower8899 ...
11/17/17 7:40 am

There are actually many government corporations, I don't know what you mean by "first of its kind"

PeaceKeepaGirl advance democracy
11/17/17 9:14 am

What happens to Medicare, Medicaid, or the VHA if this is overturned? We could see a massive healthcare crisis if people try to apply a "for the plaintiff" ruling to any of these programs.

PeaceKeepaGirl advance democracy
11/17/17 9:14 am

What happens to Medicare, Medicaid, or the VHA if this is overturned? We could see a massive healthcare crisis if people try to apply a "for the plaintiff" ruling to any of these programs.

bower8899 ...
11/17/17 9:47 am

PKG is right. This is what we mean when we talk about how this case could set a dangerous precedent

iceberg124
11/17/17 11:39 am

Medicare, mediacaid, social security, etc. are bankrupting the country. I get that it's not politically correct to talk about that but repealing this disastrous and unconstitutional legislation will lead to a conversation. Can't just keep dishing out money once the bank breaks

bower8899 ...
11/17/17 11:50 am

It's our bloated military that's bankrupting this country.

PeaceKeepaGirl advance democracy
11/17/17 3:17 pm

I don't see why ruling for the plaintiff wouldn't set a precedent that the military has to be privatized.

iceberg124
11/17/17 3:20 pm

Article 1 section 8 says the congress has the right to raise and support armies

PeaceKeepaGirl advance democracy
11/17/17 3:31 pm

Ok so it does, I was thinking specifically about the common defense phrase. What about the Fed though, are we really going to revert to decentralized banking?

It just seems like the precedent for allowing programs as "promoting the general welfare" is to deeply ingrained to be overturned for a case that doesn't particularly stand out constitutionally speaking.

TheSpookyGhost paleoconservative
11/17/17 4:59 pm

It is deeply ingrained; that doesn't make it constitutionally correct. It'll take a lot to undo all the unconstitutional legislation over the years, including Medicaid, but it has to be done. The consequences don't matter; only the Constitution does.

lucaval STL
11/15/17 7:49 pm

This health service is government run, it collects money for services just like we collect taxes. This isn’t a corporation, but merely a service that is paid for (just like the irs charging fees, public schools, libraries, and other public entities that charge money for other services. This bill is NOT unconstitutional.

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lucaval STL
11/15/17 7:51 pm

@MrAmerica , @hokiejac , @osouless , @jadeburt , @Zackistan , @BertGoldberg , @political , @Tlaney , @PeaceKeepaGirl

lucaval STL
11/15/17 7:52 pm

As a writer of the bill, I feel I preserve the right to argue in favor of the constitutionality of the bill.

osouless Whats Next
11/15/17 7:54 pm

Lucaval, my reasoning below follows your train of thought closely. Not understanding how people aren’t seeing both sides of this issue.

lucaval STL
11/15/17 8:13 pm

πŸ‘πŸΌπŸ‘πŸΌπŸ‡ΊπŸ‡²

bower8899 ...
11/16/17 10:08 pm

You mention all those things... I feel like a repeal could set a dangerous precedent for what the government can't do

Vontrillex VC Nobody
11/15/17 5:04 pm

This is an easy FOR THE PLAINTIFF. The act is horrible. How can someone support such a sickening and outrageous bill.

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johonmilla Monroe, nc
11/15/17 5:18 pm

Oh no! Healthcare for citizens and keeping Americans healthy and financially able to pay healthcare! The horror!

Vontrillex VC Nobody
11/15/17 5:24 pm

WOW! I didn't know having an unconstitutional bill that forces a public option isn't a horrible thing.

lucaval STL
11/15/17 7:49 pm

This health service is government run, it collects money for services just like we collect taxes. This isn’t a corporation, but merely a service that is paid for (just like the irs charging fees, public schools, libraries, and other public entities that charge money for other services. This bill is NOT unconstitutional.

iceberg124
11/15/17 3:50 pm

@MrAmerica are you going to ask for order for all these unsolicited commenters trying to influence the court?

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jztheman Connecticut
11/15/17 3:52 pm

I was just wondering if it was legal for ghost to represent all of California since he is one person.

MrAmerica Adoring the Logos
11/15/17 3:55 pm

I usually don’t ask for people to stay silent unless it happens inside of the official comment where all of the judges make their rulings.

johonmilla Monroe, nc
11/15/17 5:19 pm

Outside comments have always been allowed...

jadeburt Ann Arbor, Michigan
11/15/17 6:28 pm

I think outside comments are fine as long as they aren’t in the official thread. Just my two cents. I think of them as amicus curie briefs.

iceberg124
11/15/17 7:17 pm

It's up to the Chief Justice but I certainly would only allow designated representatives to add comments in my courtroom. Not only in the case of johon

osouless Whats Next
11/15/17 3:06 pm

While there is no explicit right provided to the government, previous court cases have maintained that the state holds a certain amount of police power based on the utilitarian use of state power towards the betterment of its citizenry. While this police power is general contained within the purview of the 10th amendment and held for the states, due to the essential nature of things such as public education and health care, the federal government has also laid claim to certain police power’s. Common law dictates that the government’s need to protect its citizens outweighs other tendencies in matters of great import. Thus, the government’s right to create and maintain a public option for healthcare falls along the same police power it finds in the creation of public schools and institutions of learning.

bower8899 ...
11/15/17 3:18 pm

I would argue protection of citizens falls under "necessary and proper"

osouless Whats Next
11/15/17 3:30 pm

Certainly that argument can be made, and i would say is being made in my reasoning as state police power is a means by which the government is acting through the “necessary and proper” clause.

FATSHADOW Cyborg Gorilla
11/15/17 2:14 pm

Am I the only one that finds it funny to read a Supreme Court Case is brought forward by a Spooky Ghost??

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jztheman Connecticut
11/15/17 1:45 pm

I would say dismiss since it isn't the state of California as one man can't speak for the whole state. California also is blue leaning so they would probably not like this anyway.

bower8899 ...
11/15/17 1:59 pm

Agreed. Should be resubmitted as ghost vs us or something

@virtualcongress

@ranger14

ranger13 Texas
11/15/17 2:08 pm

I just posted it as it was submitted and that was the title of the case.

bower8899 ...
11/15/17 2:13 pm

We are saying you should make it invalid since he cannot represent the state of California

ranger13 Texas
11/15/17 2:17 pm

Well he is a representative from California so it would make sense for him to represent California in this case.

bower8899 ...
11/15/17 1:22 pm

It's gonna be for. Calling it now. The court is unbalanced leaning towards conservative.

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chance Sirnotappearinginthisfilm
11/15/17 1:32 pm

It should be for. Govt run healthcare is ridiculous on the face of it, they have no business getting involved in the first place.

bower8899 ...
11/15/17 1:50 pm

I disagree. People deserve health care as a right.

chance Sirnotappearinginthisfilm
11/15/17 2:36 pm

Wrong, it is not a right, nor should it ever be. You want t it? Pay for it yourself. You have no right to take my money and pay for your healthcare.

bower8899 ...
11/15/17 2:39 pm

What if I can't pay for it? What if I have cancer and can't afford treatment?

chance Sirnotappearinginthisfilm
11/15/17 7:24 pm

Then you seek assistance like any responsible adult would do.

bower8899 ...
11/15/17 7:29 pm

From where?

Senate101 San Diego
11/15/17 1:22 pm

How does Spooky speak on behalf of the whole State of California?

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bower8899 ...
11/15/17 1:22 pm

Good question

iceberg124
11/15/17 8:08 pm

I'm assuming because he's a representative from California

Senate101 San Diego
11/15/17 8:34 pm

So he should file the case in his own name. He does not represent the Government nor any Institution of the State of California, and therefore is not qualified to file under title of said state.

johonmilla Monroe, nc
11/15/17 12:36 pm

An alternate source for those seeking a more non-biased source on the topic:

fas.org/sgp/crs/misc/R40846.pdf

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jadeburt Ann Arbor, Michigan
11/15/17 2:30 pm

Thank you for providing an opposing argument. I’ll be sure to read it over.

MrAmerica Adoring the Logos
11/15/17 12:17 pm

ALL JUSTICES:

lets use this thread to keep track of our decisions.

A simple "For the Plaintiff" or "Against the Plaintiff" or "Vote to Dismiss" will suffice.

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iceberg124
11/15/17 12:19 pm

I've read the case previously and have read lots of the debates on the 'Better Insurance Act' and I agree wholeheartedly with the plaintiff that it is unconstitutional along with the public option.

For the plaintiff.

osouless Whats Next
11/15/17 3:00 pm

Against the plaintiff. Reasoning to follow above.

PeaceKeepaGirl advance democracy
11/15/17 8:10 pm

Against the plaintiff. I concur with Justice osouless' ruling, and further opine that, healthcare being a human right, laws which expand access may be protected under the 9th amendment protection of unenumerated rights.

TomLaney1 Jesus is Lord
11/15/17 8:23 pm

FOR THE PLAINTIFF. Plaintiff’s argument is 100% correct. Healthcare is NOT a right, it is NOT covered by the 19 Enumerated Powers of Congress, and therefore, according to the Tenth Amendment, is reserved exclusively to the states. Federally run healthcare is, by definition, unconstitutional.

hokiejac Decatur, GA
11/16/17 9:35 pm

AGAINST the plaintiff. Article 1, Sec 8, clause 1 states Congress May “provide for the common Defense and general Welfare of the United States; “ Providing for the general welfare of the country includes the provision of a public option and the taxes to pay for it. The constitution’s meaning was vague enough to fit with an unknown future. The founders likely didn’t think it would be in use 230 years later but it is the fact that it’s not frozen in 1787 that makes it work.

Zackisan VC Member
11/17/17 10:36 am

Against the plaintiff. I concur with Justice hokiejac’s ruling

jadeburt Ann Arbor, Michigan
11/18/17 1:49 pm

For the plaintiff. See full (very long) ruling above.

MrAmerica Adoring the Logos
11/18/17 4:42 pm

Concur with Justice Jadeburt. For the plaintiff.

political Georgia
11/19/17 7:34 am

For the Plaintiff

VirtualCongress Speaker NDAmerican
11/15/17 12:10 pm

@MrAmerica , @hokiejac , @osouless , @jadeburt , @Zackistan , @BertGoldberg , @political , @Tlaney , @PeaceKeepaGirl

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MrAmerica Adoring the Logos
11/19/17 7:16 am

Emperor @Political no rush, just making sure that you remember this case.

VirtualCongress Speaker NDAmerican
11/15/17 12:08 pm

California v. United States Department of Health and Human Services - Better Insurance Act:

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VirtualCongress Speaker NDAmerican
11/15/17 12:08 pm

The Better Insurance Act is a law that creates a public, government-run insurance agency to compete with private companies. In common vernacular, this is known as the public option.

VirtualCongress Speaker NDAmerican
11/15/17 12:09 pm

I contend that the public option is wholly unconstitutional. The legislative power of the United States Congress is listed clearly and precisely in Article I, Section 8 of the US Constitution. Nowhere does it give Congress the power to create what is by all accounts a state-run insurance company, nor is it "necessary and proper" to carry out any of its other duties.

VirtualCongress Speaker NDAmerican
11/15/17 12:09 pm

While the defense may argue that this poor excuse of a law regulates interstate commerce, it really does not. The Better Insurance Act in no way regulates the current policies of private insurance companies. All it does is create a new company, which the federal government has no right to do.

VirtualCongress Speaker NDAmerican
11/15/17 12:09 pm

For more constitutional arguments against the public option, please see dailysignal.com/2009/08/20/is-national-health-insurance-constitutional/