Ezra’s Point About Vinson’s ObamaCare Ruling

In this article, Ezra Klein argue that the weak point in Judge Vinson’s ruling resides in his use of argument from first principles to suggest that power without logical limit cannot be a correct interpretation of the Necessary and Proper Clause.

Klein points out that Vinson’s argument contradicts the Supreme Court ruling in the case of Gonzales v. Raich, according to the dissenting opinion. In Gonzales v. Raich, Justice Stevens concluded that the power to ban marijuana growing locally existed because it is necessary and proper to help control interstate commerce. Justice Thomas disagreed, saying that granting this power allows the government to regulate “virtually everything.” Ezra is arguing that since this ruling stands, and since some Supreme Court justices think this ruling grants unlimited power to the government (albeit, different justices), then an argument against the Necessary and Proper Clause granting unlimited power to the government cannot stand until the Raich precedent is overturned.

First of all, Justice Stevens is a making a pretty weak argument here- the Necessary and Proper Clause specifically only allows powers necessary and proper for “bringing into execution” Congress’ other powers. His reasoning is that enforcement of bans on interstate trade becomes difficult when the product can be produced within the states. This alone is a stretch- the same logic would allow the government to massacre the entire populace, under the presumption that this would be the only way to get rid of all the murderers. This reductio ad absurdum is a logical problem the Supreme Court will have to deal with someday, so it wouldn’t be out of line for a District Court to question Stevens’ logic.

Even so, Justice Thomas is also incorrect, because the Raich line of reasoning doesn’t apply to the question of forcing people to get health insurance. People going without health insurance doesn’t make it harder for the government to enforce any of the other provisions within the PPAC Act. The Act does not legislate a requirement that all insurers must stay in business. Including such a requirement would violate the 13th Amendment. As stated numerous times by the defendants, the Individual Mandate provision is necessary to prevent prices from rising, and/or to prevent insurers from going out of business. Yet, neither of these effects aids in enforcement of other components of the law. So the Raich ruling, while being of questionable logic, doesn’t actually provide the precedent for truly unlimited regulatory powers as Justice Thomas feared. It may allow virtually any regulation to be put in place, but not for any reason. The reason must be a matter of enforcement of independently-granted constitutional powers, as opposed to an attempt to bring about a desired effect.

In fact, the entire defense of ObamaCare relies on ignoring this distinction between desired effects and enforcement capabilities. However, to do so has absolutely no precedent and no justification. Judge Vinson’s ruling is entirely consistent with the ruling in the Gonzales v. Raich case.

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SPEECH Act

Thanks, Obama. For once, I mean that sincerely.

H.R. 2765, known as the SPEECH Act, was signed into legislation today. This act maintains that foreign libel laws shall have no jurisdiction in U.S. courts. In the eyes of the government, U.S. citizens shall enjoy the protections granted by the First Amendment, no matter where they- or their published works -are located. This ends the practice of “libel tourism,” where those who feel offended by works published in the U.S. sue American writers in countries where the courts do not recognize the freedom of speech, and then expect the foreign judgment to be upheld under the premise of “Comity.”

For the most part, prior to the passage of this law, domestic courts would not accept comity as a legitimate justification for bypassing First Amendment rights. Nevertheless, it’s good to have these things spelled out explicitly. It would have been even better if the Act were instead a constitutional amendment that applied to all freedoms contained within (since U.S. citizens are expected to pay U.S. taxes, no matter where they reside), but then the bill probably would not have passed, seeing as how some members of Congress aren’t so enthusiastic about one or two of those Amendments. That’s okay, one step at a time…