Tag Archives: United States Congress

“Unconstitutional,” says the 11th Circuit.

Unconstitutional”

The news making its way through the legal blogosphere, and the online news outlets, is that the 11th Circuit has ruled the individual mandate part of the Patient Protection and Affordable Care Act (the “Act”) is unconstitutional.

Let me underscore that: only the individual mandate was found unconstitutional. The rest of the law has been, for now, left untouched.

The Washington Post called it one of the “most significant legal setbacks to the Obama administration’s health-care overhaul.”

If  you’re short on time, read at least the excerpts of the 2-1 decision  (of a very lengthy opinion) over at the Volokh Conspiracy. In short the Act is:

[…] the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.

Etc, etc…and, here’s the part the right will love:

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “

Too bad this didn’t come out yesterday. The Iowa Republican debate would have been that much more juicy with the ruling hanging in the air, even with the Supreme Court still in the Act’s future.

If  you have more time, here are a few more commentaries you might look at:

From Utah Political Summary’s Curt Bentley:

One of the more odd things about the majority opinion — at least in my humble opinion — is its use of an overinclusiveness argument.  Over/underinclusiveness is a consideration in individual rights cases, but, in my opinion, has no real role to play when it comes to evaluating a Congressional action under the Commerce Clause.  The over/underinclusiveness analysis is designed to get at the sincerity of a legislature’s expressed motivations.  For example, if a legislature regulates more broadly (or narrowly) than necessary to solve a particular problem, one can infer that it may be dislike for a certain group, rather than a desire to solve the stated problem, that motivates the legislature action.

Jonathan Turley, expressing concerns about federalism issue the Act affects opined that

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

In other words, if the feds can do this, what can’t they do? (And, I would add, what does that mean for the 10th Amendment?

Ilya Somin, also at Volokh, noted that this wasn’t a partisan decision:

Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.

Jonathan Adler says “Hear, hear!

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This isn’t the hope you were looking for…

Debt, debt, debt…

It seems debt is all the rage in Washington these days, and with good reason. The federal government only stays open on debt, and unless Congress and the President can agree soon, we’ll hit that limit and…well, who knows what will happen next.

Originally, negotiators were looking at a deal to cut deficits by about $2.5 trillion over 10 years.

But as the deadline approaches, Obama has raised the stakes. The goal he is now pushing for — as much as $4.5 trillion in deficit cuts over the coming decade — would require changes both in taxes and in the government’s basic safety-net programs.

“There’s going to be pain involved politically on all sides,” Obama told reporters after the White House meeting. Continue reading

Libya: Members of Congress Challenging Constitutionality of Military Action

(en) Libya Location (he) מיקום לוב

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It’s the American way. Got a problem? Take it to court.

Even if that problem is military action in Libya.

While Rep. Boehner is taking a more diplomatic tact by sending a letter to President Obama seeking clarification on Libya, others have had enough and are challenging him in federal court.

Is our continued military action in Libya legal? That is the question Professor Jonathon Turley, representing ten Members of Congress, is asking the court to decide.

This is an action for injunctive and declaratory relief. In addition to challenging the circumvention of express constitutional language, it will also challenge arguments that no one (including members of Congress) has “standing” to submit this question to judicial review. These members will ask the federal district court for review of the constitutional question and for recognition that the Constitution must allow for judicial review of claims of undeclared wars under Article I.

via Members of Congress Challenge Libyan War in Federal Court « JONATHAN TURLEY.

The Congressional members in the suit are from both parties and include Representatives Roscoe Bartlett (R., Md); Dan Burton (R., Ind.); Mike Capuano (D., Mass.); Howard Coble (R., N.C.); John Conyers (D., Mich.); John J. Duncan (R., Tenn.); Tim Johnson (R., Ill.); Walter Jones (R., N.C.); Dennis Kucinich (D., Ohio); and Ron Paul (R., Tx).

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While we bomb Libya, is a violation of the War Powers Resolution on the horizon?

(en) Libya Location (he) מיקום לוב

Image via Wikipedia

In case you’ve forgotten, we are still bombing Libya.

Yesterday, Rep. John Boehner sent a letter to President Obama reminding him that the time has arrived–legally speaking–to obtain Congressional approval for further military action in the North African country.

Five days from now, our country will reach the 90-day mark from the notification to Congress regarding the commencement of the military operation in Libya, which began on March 18, 2011.  On June 3, 2011, the House passed a resolution which, among other provisions, made clear that the Administration has not asked for, nor received, Congressional authorization of the mission in Libya.  Therefore, it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.

via Boehner warns Obama that Libya will violate war powers | Susan Ferrechio | Beltway Confidential | Washington Examiner.

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Taunting? A way of life on Capitol Hill.

Remember yesterday when, in the midst of important budget negotiations, the President of the United States said that the Congress needed to start acting like adults? (I think he was referring specifically the Republicans, but that’s just a guess).

Well, turns out that such taunting is not so uncommon. A new study by a Harvard professor finds that Congress (and I guess as a former member of Congress President Obama might be included in this group) spends about a quarter of its time taunting the other side.

Yeah. Taunting. As in “to reproach or challenge in a mocking or insulting manner.”

“The entire government may go bankrupt, I guess. This week, right?” King said in a telephone interview. “We probably want our representatives to be listening to each other rather than calling each other names.”

via 27% of communication by members of Congress is taunting, professor concludes – The Washington Post.

Maybe it’s not so crazy that our country has such a hard time forming good public policy. When we spend a quarter of our time “mocking or insulting” each other, it’s a good bet were not trying to listen, find common ground, or formulate good policy. Rather, we’re just trying to score political points.

We’ve got a place for that kind of thing. It’s called talk radio.