Yes! Someone Finally Cares About Limiting Government using the Commerce Clause!!

Oh..... ohhhh.... wait a second. It's just disingenuous Republicans advancing absurd legal arguments for purely partisan gain and political theatrics. Ahhhh. That's disappointing. But don't count out the media's ability to treat it like a serious effort with a burning legal question. Good Grief!

Let me first say, that I agree substantively that requiring individuals to buy a product from a private company is unconstitutional. But this is apart of a coherent and honest philosophy I subscribe to which would also strike down a ton of currently standing, and uncontroverisal, laws on the same grounds. It is so crushingly obvious that these Attorneys General are only advancing these legal arguments because they are on Team "Hate-Healthcare-Reform" that it should immediately disqualify all of them from the class of serious legal minds.

How the fuck can someone with a law degree write a fucking sentence like this, and put this tripe bullshit in front of a court: "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage." You can not be SERIOUS!!!

The Constitution doesn't authorize a lot of things, I mean I could literally fill-in-the-blank for the next 7 years with things advanced by Republicans, yet "nowhere" authorized by the Constitution. Let's try 5 minutes:

The Constitution nowhere authorizes the United States to:

-Dictate specifically what should be taught in schools and what tests students should take

- Criminally punish someone for possessing an item that they manufactured and consumed themselves for medical reasons in compliance with a doctor's recommendation and applicable state law.

- Discard or exempt portions of the Bill of Rights for American citizens without a declaration of war, or even under a declaration of war.

- Force citizens to pay taxes into a system that reinvests that money into private corporations.

- Pay states for changing the blood alcohol content at which criminal culpability is defined.

The Constitution nowhere authorizes the United States to do about 95% of the things it does. Some of those things are totally, and unquestionably Constitutional. Some are not so clear. That's because the Document is vague, and because politicians and judges, including Republicans no less than Democrats, have expanded the role of federal government and shoe-horned powers into the Document to suit their political ends. Someone who truly believes in a very limited federal government, confined by Section 8 of Article I, regardless of political outcomes, would pretty much have to agree with the first 3 examples I provided - that those are not ok. Others might even agree with the last two examples. But Republicans have consistently disagreed with ALL OF THEM over time. It's a little late in the game to start holding up the commerce clause as a limitation, and these arguments and lawsuits surely would not be advanced if the politics were different.

As for the substance, yes the mandate is unconstitutional, in my view. Congress can regulate commerce amongst the several states, and health insurance is commerce at its essence. The Supreme Court has held that Congress can even regulate non-commercial activity (no transaction, no money, no commerce) that is somewhat related to commerce because of some fucking bullshit about how non-commercial activity can effect commerce and so regulations need to extend to even non-commercial stuff. These dumbfuck arguments can be found in cases called Gonzalez v. Raich and Wickard v. Filburn. Again, true disciples of the limited fed philosophy consider those cases utter abominations, especially - and certainly not coincidentally - the one ruthlessly prosecuted by the Bush Administration.

Those rulings notwithstanding, a legitimate argument could be made that requiring private citizens to buy a product from a private company, to enter into a contract, is just beyond anything the commerce clause can be said to authorize and runs up against many fundamental freedoms such as freedom of contract. Indeed, the argument continues, the power to force people to buy products, if bestowed onto Congress, would create an absurd slippery slope that would be ripe for corruption and abuse and turn our traditional economic freedoms on their heads. What is to stop another powerful lobby from mandating all Americans, say, have savings accounts with a $25 minimum balance?

(Thus, a well-argued lawsuit would either dispassionately outline the argument and plainly state "The Constitution does not authorize this type of Congressional behavior." OR it would present an argument that doesn't drip with the snarky wonderment of a pre-law sophomore who just read the Constitution for the first time, and say something like "This mandate goes beyond the appropriate powers of Congress to regulate commerce, by unprecedentedly requiring private parties to enter into contracts...." etc.)

Sadly, there is little doubt, and rightfully so, among legal experts that the government will prevail by emphasizing that this law is just a different type of regulation on an activity that literally epitomizes commercial activity. The Solicitor General could just robotically repeat "The Government is regulating a commercial activity" for his entire 30 minutes of argument and the Supreme Court will side with her.

The unlikelihood of success doesn't make these suits illegitimate, but the people making them probably hadn't even considered the commerce clause since their second semester of law school.

Moreover, an interesting wrinkle that no one has reported on is that these lawsuits are very likely to be dismissed immediately on grounds of mootness. That is to say there is no controversy before the court because the mandate does not kick in until 2014, and so no one has standing to sue under law that has not gone into effect. This is something the Constitution is pretty specific on, and these lawyers have to know this, which really makes these suits a publicity stunt.

My prediction: These suits get tossed for mootness, and Republicans do their normal chicken dance about "judicial activism" (which would be the most dishonest use of that term ever - which is to say a lot) and some other bullshit that the courts wouldn't even consider the merits of the case and that Americans deserve to have their courts hear the merits blah blah blah! Yes, get some goggles and a wetsuit, it's about to become a complete bullshit-fest.