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After reading all of the posts in the thread again, including mine, I thought I would point out that there are two separate discussions going on. One is how we feel about the law itself, as in if we feel it is unconstitutional, fair, proper, or should have ever been passed. The otehr is how we feel the SCOTUS will rule on the issue. I also thought I might need to make my position a little more clear.

I think the law is one of the worst abuses of federal power and one of the last major steps toward socialism. We need to repeal it. Yes, I do think there are some good parts in it, but I don't think it is the job of the federal government.

But, I can see legal ways that the SCOTUS could rule the thing is constitutional. My interpretation is that it is not, but I am not sure that the SCOTUS will agree. One of the great strengths and great weaknesses of our Constitution is that some of the phrases are are vague enough to have different meanings. One example of this is the use of the term "cruel and unusual punishment" in the Eighth Amendment. Look at how we have used this phrase to make legal or illegal such sentences as the death penalty or chain gangs.

Relevant to this law is the phrase regulate interstate commerce. Just exactly what is legitimate regulation is not spelled out, and neither is exactly what is interstate commerce. This vagueness is why I am not sure the law will be ruled unconstitutional and why I am not sure the court would be wrong in saying so. We would be much better off working to get the law repealed through the legislative process than counting on the court.

Heartland Patriot wrote:

srothstein wrote:Ameer, I do not mean to be argumentative, but just where does the Constitution spell it out in black and white? I can see how there are several different possible interpretations of what is written in the Constitution, at least one of which could justify the whole law.

I have read many of your posts and learned a lot from some of them. But can you tell me, seriously, that the framers of the Constitution wrote any of it to allow the Federal government to FORCE people to BUY something, ANYTHING?

Actually, it clearly allows the government to force certain things. Some were so commonly taken as the government's area that no one questioned it. For example, it clearly allows the government to establish a post office, which really should be a private business IMO.

I agree with you that the Constitution has been stretched way further than it was intended to be. And I agree with Hoosier Daddy that the Constitution limits the government to the powers granted it and anything else is forbidden. But some of those powers are written so vaguely that they can almost guarantee the stretching.

For example, and the relevant part to this discussion, the Constitution allows the federal government to regulate interstate commerce. The problem is it never defines exactly what is meant by regulate, let alone interstate commerce. The one thing I think is clear is that the government can regulate health insurance. If I am in Texas and I am buying insurance from Blue Cross Blue Shield, which is based in Chicago, I am clearly engaged in interstate commerce. Now, with that specific example, it gets much murkier since BCBS uses local franchisees which are supposedly independent. But the idea is still valid in principle.

So, if they can regulate my purchase of insurance under the specifically delegated power mentioned, what parts of it can they regulate? And since there is no limit to the regulatory power stated, can requiring a purchase be a legitimate requirement? Does it make a difference if there is no criminal penalty for violating the requirement? Remember, the way they got around the possibility of the legal question was to not make it criminal. The government has the power to tax. Can they tax you based on your failure to purchase the product?

All of which gets to the point of my question. Where is it written in the Constitution so clearly as to be considered black and white? All I see are shades of gray.

WildBill wrote:

srothstein wrote:Remember that they have recognized that travel is a right, which means that the mode is irrelevant legally.

This is getting off track, but where is this right recognized? Why is driving a car not considered a right? Is riding a horse a right?

while we are getting off track, my next post will be right back on track, I promise.

Some of the right to travel cases actually do go back to horseback travel and car licenses. They were decided on the question of banning cars from a city back when the cars were first getting popular. And you need to remember that Texas did not even have a driver's license law until the late 1930s. I don't know how people became convinced that driving is a privilege and not a right, but the history shows it really is a right.

And for an interesting article on the right to travel, check this out: http://law.justia.com/constitution/us/a ... ravel.html" onclick="window.open(this.href);return false;. It is written more about residency requirements, but shows one clause of the Constitution that clearly allows for a right to travel.

Ameer, I do not mean to be argumentative, but just where does the Constitution spell it out in black and white? I can see how there are several different possible interpretations of what is written in the Constitution, at least one of which could justify the whole law.

There are two separate legal questions that the court must answer. One of them will definitely influence how they vote on the second. I don't have a lot of hope for the proper ruling on either.

The most important question to most people is if the government can mandate the purchase of any product, either through criminal penalties or a tax based on non-compliance. To me, the most important precedent on this is the purchase of insurance for a car. Remember that they have recognized that travel is a right, which means that the mode is irrelevant legally. While there is a difference in who the insurance protects, it is still requiring the purchase of a product. I think both mandates are unconstitutional but I am not nearly as sure that the court will agree with me as I would like to be.

The second question is if ruling one clause of a law invalidates the whole law. The healthcare law was passed without the customary severance clause in it that protects laws if one section is struck down. I do not see the court wanting to strike down the whole law and there is quite a bit of good in it. I do not see them wanting to make a ruling that changes established law on what is struck down. Since I don't see a way for them to rule on just this clause, I think this question may affect their thinking on the first question.

So I do not have a lot of hope for this law being struck down at all.