Thursday, June 28, 2012

To breathe, or not to breathe

That is the question, say the Supremes dissenters;

Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
That clear principle carries the day here.  The striking case of  Wickard v.  Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the  failure to grow wheat (which is  not  an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
But, what's with that, 'That clear principle carries the day here.'?  Because it clearly didn't carry the day.  The ACA was mostly upheld.

Also, why did the dissenters go on about the severability [V] of the minor provisions from the major;

The two pillars of the Act are the Individual Mandate and the expansion of coverage under Medicaid.  In our view, both these central provisions of the Act—the Individual Mandate and Medicaid Expansion—are invalid. 
It follows, as some of the parties urge, that all other provisions of the Act must fall as well. The following section explains the severability principles that require this conclusion.
If the Individual Mandate didn't fall, why talk about why, 'all other provisions' related to it must also fall?  Why the specificity here;

The Act was passed to enable affordable, “near-universal”health insurance coverage.  .... 
The resulting, complex statute consists of mandates and other requirements; comprehensive regulation and penalties; some undoubted taxes; and increases in some governmental expenditures, decreases in others.  Under the severability test set out above, it must be determined if those provisions function in a coherent way and as Congress would have intended, even when the major provisions establishing the Individual Mandate and Medicaid Expansion are themselves invalid.
'Themselves' ?  That sounds like something the majority would say, not dissenters.

Curious.  Very curious.

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