Wednesday, November 16, 2011

Spelling does not take precedence

Today's Milwaukee Journal Sentinel editorial on the constitutionality of the Patient Protection and Affordable Care Act [Obamacare] says "Justices should shut out the political clamor and rule the way logic and precedence [sic] demand - in favor of the law." One of the precedents is a Court of Appeals decision with an opinion by Judge Laurence Silberman."The mandate [for individuals to purchase health insurance] 'certainly is an encroachment on individual liberty, but it is no more so than ... that a farmer cannot grow enough wheat to support his own family,' he wrote." This is a reference to Wickard v. Filburn, though summarized in a way that seems to leave room for death panels in the Department of Agriculture.

Update: Harvard law professor Einer Elhauge explains in a New York Times op-ed that
"Opponents of the new mandate [to purchase health insurance] complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. However, that fear would remain even if you accepted their constitutional argument, because their argument would allow Congress to force us to buy broccoli as long as it was careful to phrase the law to say that 'anyone who has ever engaged in any activity affecting commerce must buy broccoli.'"
He goes on to provide reassurance that
"There are, of course, limits to what Congress can do under the commerce clause. If it tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty."
Via Mickey Kaus, who comments,
"it’s a little suspicious–and surely not a selling point–that under Elhauge’s argument the only limits on government would be the rights — like 'bodily integrity' and privacy — that liberal lawyers have dreamed up but not the limit — i.e. whether or not something is 'interstate commerce' – the Founders dreamed up."

1 comment:

  1. ....which led one commenter to suggest that Silberman was setting up Wickard (and ObozoCare) for a fall.