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Reconstituting the Constitution?

A federal judge ruled today that the constitution does not allow the government to require people to purchase health insurance. It should surprise nobody that this particular judge was appointed by Bush (to whom all appointments were political), and note also that two other judges have ruled that this requirement is constitutional, so it is not clear how this will eventually turn out.

But uncertainty didn’t stop Senator Orrin Hatch (R-Utah) from issuing a statement saying “Today is a great day for liberty. Congress must obey the Constitution rather than make it up as we go along. Liberty requires limits on government, and today those limits have been upheld.” His website also claims “Hatch was the first Senator to publicly argue that the individual insurance mandate is unconstitutional.”

The only problem with this, as NPR points out, is that Hatch was the one of the people who came up with the idea for the “individual mandate” (one could say he helped “hatch” it), which requires people to buy health insurance. In fact, back in 1993, he was a co-sponsor of a bill to require individuals to purchase health insurance.

Was he just “making it up as he went along” back then? Or now?

How long will it take the American people to wise up that the Republicans will be against anything Obama proposes, even if it was their idea in the first place?

UPDATE: The judge who ruled the individual mandate unconstitutional owns a significant chunk of a GOP political consulting firm that worked against health care reform, and from which he receives income in the form of dividends.



  1. ebdoug wrote:

    In other words, he should have reclused himself.

    Tuesday, December 14, 2010 at 7:27 am | Permalink
  2. EBDOUG: Precisely.

    Tuesday, December 14, 2010 at 7:38 am | Permalink
  3. Political posturing pisses me off.

    Have they decided yet whether or not lying will be illegal in Europe? I sure wish they’d bring that law over here and give it a hierarchy of enforcement, with the top level being that of people who hold public office.

    Tuesday, December 14, 2010 at 8:37 am | Permalink
  4. starluna wrote:

    Yes, he should have recused himself. That is a clear violation of federal rules for judges. What do you think the chances of the House or Senate taking up that impeachment trial?

    Tuesday, December 14, 2010 at 8:38 am | Permalink
  5. Sammy wrote:

    In answer to the question about Hatch and his change of position, I think the answer is obvious and evident that the Republican party has tilted so far to the right to satisfy the extreme right, that it doesn’t matter what their previously held positions are. The right wing media will ignore the hypocrisy and the “real” media won’t press the issue and do their job.

    Tuesday, December 14, 2010 at 11:32 am | Permalink
  6. Sammy wrote:

    @Starluna: Impeachment? I think that only happens to Democrats who have can’t control their sexual inhibitions…or presidents who dare to be black (gawd, I hope I’m wrong about that one).

    Tuesday, December 14, 2010 at 11:42 am | Permalink
  7. Bert wrote:

    Sammy, we did get Nixon. Although his crimes were pale in comparison. It wouldn’t happen today.

    Tuesday, December 14, 2010 at 11:51 am | Permalink
  8. starluna wrote:

    Bert – in comparison to who?

    Sammy – I hope you are wrong too. The House did impeach a federal judge in Louisiana for taking bribes and the Senate recently convicted him. He has been removed. What this judge did doesn’t rise to the level of bribery, but deserves at least a trial and censure. A public trial and public censure.

    Tuesday, December 14, 2010 at 11:57 am | Permalink
  9. ebdoug wrote:

    Ok, someone tell me what the right word is. I answered very early this morning and used the word “Reclused” which means a “hermit” I knew I should look it up before I used it but I didn’t. Starluna used “recused” which spell check says doesn’t exist. What is the right word?

    Tuesday, December 14, 2010 at 3:30 pm | Permalink
  10. Iron Knee wrote:

    WikiLeaks says “recused”.

    Tuesday, December 14, 2010 at 4:19 pm | Permalink
  11. Jason Ray wrote:

    FYI this is a nearly meaningless ruling. There have been (I believe) rulings in a couple of similar cases in other states where the judges went the other way, and something of this impact will not be resolved until the Supreme Court hears the signature case.

    It will be interesting to see what the Supreme Court does when the case gets there. The legal argument that this judge used (and others have been spouting) is that the Commerce Clause of the Constitution does not extend to forcing citizens to buy a particular product – in this case, health insurance. The argument hinges on the idea that this is a product, however – a competitive private product. Health insurance is arguably not a competitive private product since the largest “provider” of health coverage is the government itself. If the language had been that each citizen had to pay for a government program or opt out by buying their own insurance, or the government issued “vouchers” that had to be spent on health insurance, this case would never have gotten this far, let alone to the Supreme Court.

    And in the end, even if this requirement is found to be unconstitutional, it doesn’t change the rest of the health care enactment and there are dozens of ways (including the one described above) to make sure the same provision is applied.

    Personally, since I have intimate experience with how legal precedents can become problematic, I hope the Supreme Court rules this specific implementation (requiring citizens to buy private insurance) is, in fact, unconstitutional so that the mechanism can be corrected in any of the many ways it can, and should, be changed.

    Tuesday, December 14, 2010 at 7:12 pm | Permalink
  12. patriotsgt wrote:

    I agree Jason Ray. If they had just called it a tax to begin with there would be no challenge however, they may have had more difficulty passing it. Having the President say it’s absolutely not a tax and then the Justice Dept saying it really is a tax, kind of blows it for the gov.

    Tuesday, December 14, 2010 at 7:33 pm | Permalink
  13. starluna wrote:

    The “it’s not a tax” vs “it legally or effectively is a tax” bait and switch is not uncommon. It happens all the time with fees that regulatory agencies impose.

    I am anxious about how what this Supreme Court will do. I suspect it may depend entirely on which appellate court it takes the case from. Kagan will have to recuse herself from the case, which means that a 4-4 split is entirely possible. If that is the case, the appellate court ruling will stand. If the Court takes the case from an Circuit that ruled against the law, then this provision will be struck down. If it takes the case from a Circuit that went the other way, then the law stays intact.

    Tuesday, December 14, 2010 at 8:54 pm | Permalink
  14. starluna wrote:

    EBDoug – My browser also showed that “recuse” was misspelled, which I knew was wrong. I get see that all of the time. Technical jargon apparently is not in the Mozilla dictionary.

    Tuesday, December 14, 2010 at 8:58 pm | Permalink
  15. Morrius wrote:

    Having values or principles is gauche. Getting re-elected is more important than consistency, helping your constituency, or the truth.

    Wednesday, December 15, 2010 at 6:58 am | Permalink
  16. starluna wrote:

    Now, here is what I find interesting. Gauche does not show up as misspelled, but recuse does.

    Wednesday, December 15, 2010 at 8:32 am | Permalink
  17. Iron Knee wrote:

    The built-in dictionary on the Mac knows about recuse.

    Wednesday, December 15, 2010 at 2:37 pm | Permalink
  18. Peter wrote:

    I remember way back when the Republicans “Contract with America” said they were going to pass a bill giving the President a line-item veto. Of course, as soon as Clinton actually used his new powers, the same congressmen who voted for it ran to the Supreme Court and had it declared unconstitutional.

    Saturday, December 18, 2010 at 1:28 am | Permalink