Archive for December 18th, 2010

The mandate is constitutional, this is a distraction.

Dec 18, 2010 in Clueless Conservatives, Constitution

Gee, a Republican judge not actually heeding the Constitution, I didn’t think that was possible.

As Orin Kerr pointed out, Judge Hudson made a significant error in his reading of the Commerce Clause when he wrote “if a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.” As Kerr notes, “the point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I” (or as Justice Marshall famously put it “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”)

The Commerce clause is not what the government is claiming as authority for a mandate. The Necessary and Proper Clause is. And there is a long history and fairly well developed tests for determining what is necessary and proper. If critics want to bemoan this perceived expansion of federal power, they need to consider the necessary and proper clause and its associated tests (rational relationship basis) used to assess the constitutionality of any federal action claiming it as a source of authority.

Look, all this business with Republicans and the Constitution is, much like everything else, a bumper-sticker not an actual position. These are the same people who have been attacking liberties for years treating the Constitution as a complete list of our rights when the Ninth Amendment specifically forbids reading the Constitution this way. If they don’t like something they call it unconstitutional, and being a judge doesn’t make any difference.

-hw

Better than Clinton.

Dec 18, 2010 in teh gay

1. Clinton couldn’t pass Health Care Reform, Obama did.
2. Clinton euthanized the regulatory dogs, while Obama passed financial reform.
3. Clinton signed DADT, Obama is going to sign its repeal within days.

Of course, Clinton raised taxes, presided over an era of prosperity, and put the country on the road to paying down the deficit and shoring up Social Security. I’m betting that with eight years Obama will be able to say that and a lot more.

But right now, let’s hail this great day of freedom, the day a Republican filibuster was broken in a victory for liberty and the honor of those who have served this country proudly, regardless of their orientation.

Greatest lame duck Congress ever, even with the tax deal and all the other things Republicans are killing, like the excellent DREAM act for immigrants. Somehow, they got the courage to act after they lost the election, and they did so on an issue that seemed insurmountable just years ago. This is huge. This is a big fucking deal. Marriage rights remain, but some places in America gays can get married already. Now every soldier in the Armed Forces can set this false division behind and achieve true unit cohesion. The purges can end. The best and brightest will prosper. And America finally joins the rest of the civilized world on this one.

This is just plain huge.

-hw