Yes, Federal law trumps State, UNLESS the Fed law is unconstitutional (insurance, federal government)
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According to your argument.. The federal government could write a law saying that all children belong to the government and it would be valid because of the commerce clause.
That would clearly reach, and exceed, an upper limit of their authority. However, thanks in part to the commerce clause, the feds do a pretty good job of telling everyone that children need some form of education and No Child Left Behind is still at play.
There was no precedent for Social Security, Medicare, unemployment, or workers compensation. Although FDR had a devil of a time getting it through, it's stood the test of time. Interestingly enough, that time period started the expansion of the fed's power under the commerce clause, that obviously continues today.
And if one doesnt work, they are not forced to pay into ANY of the items you listed..
And if one doesnt work, they are not forced to pay into ANY of the items you listed..
True, but like those programs, most people that work for an employer will not have to buy or pay into anything. The tax penalty applies to those who are self-employed, work for a small category of employers that are exempt from having to provide insurance, or who are for other reasons need to self insure. The majority of folks will not be in the position to even be subject to the tax penalty.
None of those programs were unconstitutional. Forcing someone to pay tax for the privilege of being alive is.
Social Security was put over on the country by pretending it was a "tax" instead of a retirement program.
Then later, Medicare was put over by pointing to Social Security and saying that since retirement programs were OK for the Fed, medical insurance programs for the same elderly people were OK too.
Orwell-style doublethink like that has always been handy for ignoring Constitutional restrictions.
True, but like those programs, most people that work for an employer will not have to buy or pay into anything.
Why would you think that? Why wouldn't an employer just opt to pay the fine instead of providing insurance when they realize the fine for not providing insurance is less costly than providing insurance for their employees?
As much as I have issues with this bill, all you constitutional scholars out can forget about getting this bill thrown out on constitutional grounds. If it were possible, don't you think the opposition, most of whom are lawyers who presumably studied the constitution in much greater detail than the average CDer, would just sit back and let it fall on its own? They know it's constitutional as it stands; they read Lopez and all the other SCOTUS decisions that affect the commerce clause and federal authority.
All those states attorney generals that are beating the drums and filing suit know this as well. It's political posturing people! They threaten suit, knowing full well that it ain't going anywhere, and you applaud and say "finally, someone is doing something. That's my man for November."
My humble advice is that we should focus on November on the political process to get the changes made. If you believe that this bill is unconstitutional, you should study Articles 1 & 2, the commerce clause, dormant commerce, and non-judiciability. No one that has made it past the first year of law school honestly believes that this is unconstitutional. No court will think so either. Bad law and policy, maybe, but not unconstitutional.
"Constitutional scholars" don't have standing since no one has yet been forced to buy a policy.
Last I heard 37 states were considering suing the federal government with a number of them joining a FL law suit to be filed by AG McCollum today. With that sort of solid opposition, even if they fail in court, a Constitutional Convention is not out of the question.
Last I heard 37 states were considering suing the federal government with a number of them joining a FL law suit to be filed by AG McCollum today. With that sort of solid opposition, even if they fail in court, a Constitutional Convention is not out of the question.
A ConCon could be an interesting development, especially if spawned by this Health Care travesty.
A ConCon, of course, cannot modify the Constitution. All it can do is propose amendments, just as Congress can propose them with 2/3 majorities of each house.
Any amendment that comes from a ConCon (or from Congress) must still be ratified by 3/4 of the states, or else it goes in the trash can. But 3/4 of the states, is 38 of them. If the 37 you mentioned (I've heard 38 elsewhere) would like to put their money where their mouth is, this could get interesting.
And there is NO LIMIT to what a ConCon can propose. If 38 states see fit to ratify, then it (and they) can make ANY law they want. These 37 or so, seem to be in an anti-Federal mood... which, all things considered, isn't a bad idea nowadays. How about an amendment that declares the EPA, OSHA, etc. edicts to be null and void in any state that has not given explicit agreement to them? Or even an amendment that simply dissolves those agencies... and others?
The amendment process was deliberately designed to give the highest office in the land (the Presidency) NO voice in any amendment, either proposal or ratification. The entire country was based on the notion that the people, far removed from government, were the best arbiters of their own lives AND the running of the country. For that reason, the Framers even provided a means of amending the Supreme Law of the Land that completely cuts out ALL of the Federal government: States can call a national ConCon to propose amendment, following which the States can then ratify what they proposed... and if the Fed Govt they just modified, doesn't like it, too bad.
Liberals in the Fed govt (in both parties) have been ignoring and violating Constitutional provisions for decades - and just added to the total today. If they start trying to ignore or violate the purely-state-based amendment process too... we could have a real problem.
Of course, the idea of States unilaterally exercising supreme power like that, flies in the face of everything those far-left liberals hold holy. If the Federal government thinks it's a good idea to take the choice out of our hands of whether to buy health insurance, is it beyond consideration that they might think it's an equally good idea to take the choice out of our hands, how to modify the Fed Govt itself, particularly if those liberals don't like the proposed changes? Either act is equally a violation of the Constitution... and they've already done one of them.
Last edited by Little-Acorn; 03-23-2010 at 11:59 AM..
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