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November 14, 2011

SCOTUS health care litigation, federalism, freedom, and constitutional limits of federal criminal justice

The huge news out of the Supreme Court this morning concerns the Justices' decision to take up the various constitutional challenges to the Affordable Care Act.  This post at SCOTUSblog by Lyle Denniston, headlined "Court sets 5 1/2-hour hearing on health care," explains the basics:

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March. The Court, however, did not grant all of the issues raised and it chose issues to review only from three of the five separate appeals before it.  It is unclear, at this point, whether all of the cases will be heard on a single day.

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

I will leave it to others to debate what the particulars of cert grant means for the law and policy debates over federal health care reform.  But, as the title of this post highlights, I will be watching all the forthcoming constitutional talk (and briefing) about federalism and freedom with a keen eye on what this litigation might end up meaning for (new?) constitutional limits on the reach of the federal criminal justice system.  As of this writing given recent precedents like Raich, any and all claims by federal criminal defendants that Congress exceeded its authority via a criminal prohibition is a non-started. Whether that constitutional reality might be subject to change as a result of the ACA litigation is a matter I will be watching in the months ahead.

November 14, 2011 at 12:58 PM | Permalink


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The selective opposition to what started off as a Republican proposal is not promising for those who want limits on overreaching federal criminal law. After all, many say it is the WAY this law is drawn that is a problem. A tweak of the tax law or a true universal health insurance system is says they (now) would be okay. Nothing small "g" about that really.

Posted by: Joe | Nov 14, 2011 1:46:55 PM

Know nothing dimwits will determine the fate of a quarter of the economy. The lawyer rent seekers will naturally support Obama Care, even the conservative ones, and blow up the size and power of our Communist government.

Everyone close to or over 40 should be worried. Commie Care is cheap care. There will be no more expensive care. Commie Care killed Princess Diana. That crash would have been survived in the worst slums of the US. No EMT. No Jaws of Life. No trauma experienced supervisor. No telemetry. No helicopter ride. No specialized, dedicated trauma center. No board certified chest surgeon receiving her directly in the OR directly from the rooftop helipad. Instead? 45 minutes to get her out of the car. She was talking for 30 minutes. The medical center was 4 miles away at night, with no traffic. It took an hour and a half to to reach it. They did chest compressions in the street on a trauma victim, meaning they pumped her chest to accelerate her exsanguination. A helicopter ride and proper street care is not even advanced, nor that expensive. It is from the Vietnam era. What awaited her in the hospital, a grumpy, resentful government employee surgeon making $90K, instead of the $300K he deserved, smoking around the oxygen tanks, fresh from his hour and half lunch, and two glasses of wine in the hospital cafeteria. Once his shift is over, he is going home, no matter the state of his patient. If a princess had no chance, what chance will we ordinary people have under Commie Care.

Transplants? Now that is expensive care. Forget about it. Thank the lawyer.

Meanwhile, the plaintiff bar will have open season on all productive sectors of health care.

A major factor in the drop of murders has been advanced, expensive, war experience informed trauma care. One expects the murder rate will increase under Commie Care.

Posted by: Supremacy Claus | Nov 15, 2011 2:54:31 AM

hmm i'm not taking a side on SC's first paragraph but from the 2nd on down. He unfortunatley hitting it right on the head!

Posted by: rodsmith | Nov 15, 2011 1:00:20 PM

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