Is Obamacare unconstitutional?

Court Strikes at Health Law:
Judge Rules Mandatory Insurance Unconstitutional; First Round of Long Battle

I’ve expected this all along, though I thought Obamacare would win the first few rounds and lose in the higher courts.


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24 Responses to Is Obamacare unconstitutional?

  1. Gorbachev says:

    I knew this was coming. You can’t force people to buy anything.

    That just goes without saying.

  2. rebelliousvanilla says:

    Yes, but if you try to capture rain water, you still commit a federal offense. So called American freedom, I suppose. 🙂

  3. Anonymous Crab says:

    Awesome, there’s two full years completely wasted.

  4. rebelliousvanilla says:

    Crab, I’m glad about it. Obama wasted his time on an unconstitutional law and now he won’t do squat until he will be throw out of the White House. But don’t worry, the GOP will screw themselves anyway.

  5. Polymath says:

    The GOP are more pragmatic than they used to be but still quite capable of screwing themselves. Obama has figured out at last that he needs to pay attention to those voters who are not partisan Democrats.

    Amazingly, the rest of the Democrats have STILL not figured that out:

    Are Democrats Delusional?

    The Republicans don’t have to be really smart, they just have to be more in touch with reality than the Democrats, and the Democrats are making that easy for them. I thought the Republican cluelessness and self-destruction in 2006 and 2008 was enormous, but the Democrats are apparently even less able to learn from their mistakes than the Republicans.

    The most disturbing thing about the Charen column I linked to is how fundamentally confiscatory and envy-based the Congressional Democrats’ whole worldview is — they genuinely believe, so genuinely that they can’t imagine compromising on it, that wealth ought to be taken and redistributed for no other reason than inequality, regardless of how much the disparity in wealth was the result of hard work and how well-off already are those to whom the wealth is to be redistributed. I’m all for being taxed to prevent Americans from starving, but I’m not going to support unemployed parasites in a middle-class lifestyle or government workers in an upper-middle-class lifestyle with great pensions.

  6. Polymath says:

    RV, do you have a reference on the rainwater thing? I will include it in the post I am writing which also covers self-cleaning ovens, radar detectors, light bulbs, toilets, Happy Meals, broadcast descramblers, and other ways in which the government is presuming to criminalize private activity. (Legally the Federal Government shouldn’t be able to do prevent us from doing any of these things, and while the states can, they are limited because people can move to other states or legally buy things there they can bring back to their own states).

  7. Gorbachev says:

    Rainwater: I need a reference for that, too.

    And by the way, Poly: IF the federal government isn’t supposed to legislate in these areas (which I’m not clear about), then, … why is it doing it?

  8. Polymath says:

    Because it can.

    When Asked Where the Constitution Authorizes Congress to Order Americans To Buy Health Insurance, Pelosi Says: ‘Are You Serious?’

    They feel no shame about doing anything unconstitutional and just shrug when a court overturns it, because the voters don’t hold them accountable to their oaths to uphold the Constitution. The legislative and executive branches have independent responsibility to follow the Constitution, they can’t just rely on the Supreme Court to tell them when they have messed up because there is way too much for everything to get to the Supreme Court.

    Most are not as open about as Pelosi, who is in a very safe district (which I will be visiting over New Year’s, I’ll see if they are losing patience with her yet).

  9. FortitudineVincimus says:

    What’s your avatar, PolyMath? Can’t see a damn thing.

  10. Polymath says:

    Right click on it, paste the URL into a browser window, then change the size to something large like 512 (somewhere in the URL will be something like “?s=48” and if you change it the folks will make it that large, or as large as they can if the number is bigger than the photo uploaded to them).

  11. Polymath says:

    OK, that is stupid but not unconstitutional because it is state laws not a Federal law.

  12. rebelliousvanilla says:

    Adamson v California says that the 14th Amendment applies to the states too to enforce the bill of rights. In the bill of rights, you can find this “nor shall any State deprive any person of life, liberty, or property, without due process of law”.

    Considering that the state of Utah doesn’t pay it’s citizens for having THEIR water pass on the citizens property, they are depriving the citizens from the enjoyment that they can get out of their property while it rains. This would be avoided if the water was the property of the landowners, but then the state wouldn’t be able to impose these laws. So it is unconstitutional. 🙂

  13. Polymath says:

    That’s a good observation, but “takings” might be justified under the principle of environmental externalities justifying state action. If you are over an aquifer that the rest of your town is also over, and you dig a well and suck up all the water for your own purposes, then you are affecting them and can be regulated; preventing rainwater from replenishing the aquifer is similar. I agree with you that the particular laws in question may be unconstitutional; I’m just pointing out that the collective nature of water resources makes this not simply an issue of regulating private behavior. In the same way, your capacity to pollute or divert a river that passes over your property, that other people downstream depend on, has always been considered to be subject to regulation.

    Technically, whether you need to be compensated for being prevented from creating externalities depends on whether you can be considered to “own” air and water that are temporarily on your property. You may be right, but it’s not obvious and needs to be litigated.

  14. rebelliousvanilla says:

    Polymath, if the water is the property of the state, then if I leave food outside and the water spoils it, I should be able to sue the state for damages. Just like if I pass with a truck through your house, it was temporary on your property. 🙂 So who is the property of rainwater?

  15. Anonymous Crab says:

    <a href="; target="_blank" This is a pretty interesting article about the rainwater law in Colorado (at least at the time of the article), and explains a bit about why the law is the way it is there.

    For what it’s worth, I don’t believe rainwater can really be owned by either the person whose property it falls on OR by the state — I think it’s a natural resource that the government is required to hold in trust for the benefit of all. As a comparison, if you have deer (or a river) on your property, you may or may not be allowed to hunt (or fish) them without a license — it varies from state to state — but you generally still have to abide by the legal hunting season for that animal, abide by the legal size and number restrictions, etc. You can’t just build a pen in your back yard, fill it with whatever it is deer like to eat, and then fence them all in and start a venison retailing business.

  16. Anonymous Crab says:

    Whoops, destroyed that URL.

    Trying again.

  17. Polymath says:

    Jehu answered this on the other thread, he said

    The rainwater thing is the result of treaties between the several states. The treaties specifically deal with ownership of acre-feet of the major rivers in the US. They’re written really tightly to prevent upstream states from diverting the flow to the detriment of the downstream ones. Personal water catchment is collateral damage of those treaties. Wars are often fought over water rights, so this is honestly kind of par for the course.

    Water is not the property of the state, it is (in certain contexts) considered a common resource, as is air. And farmers who want to use the water to irrigate their crops may find that a treaty has limited how much they can take. This is a special legal category, analogies to other goods don’t apply directly. That doesn’t mean the new laws about catching rainwater aren’t stupid, of course, but this is a legal precedent that goes way back and there is a huge amount of settled law on it which discusses the property and takings issues. You can read all about it here:

    Water Rights Laws in the Nineteen Western States

  18. Gorbachev says:


    Anonymous Crab has it right with this:

    For what it’s worth, I don’t believe rainwater can really be owned by either the person whose property it falls on OR by the state — I think it’s a natural resource that the government is required to hold in trust for the benefit of all. As a comparison, if you have deer (or a river) on your property, you may or may not be allowed to hunt (or fish) them without a license — it varies from state to state — but you generally still have to abide by the legal hunting season for that animal, abide by the legal size and number restrictions, etc. You can’t just build a pen in your back yard, fill it with whatever it is deer like to eat, and then fence them all in and start a venison retailing business.

    It’s always been a legal practice, in almost every society, to regulate water supplies collectively, regardless of whose property they fall on. While I may disagree with the wisdom of this notion in these circumstances, ie in Colorado or Utah, the principle remains in play.

    Even in the first legal codes, and among the first international treaties, it was recognized that diverting water or taking too much water out of a river was essentially stealing from those further down river; and if rainwater is seen as the same resource (though this may be wrong – most of the water likely disappears as evaporation), then I can see why it’s categorized the same way.

    It’ s not the same as, say, having a car.

    Water – however defined – is one of those things that comes under collective ownership and responsibility.

    (imagine being able to pollute water with the most toxic chemicals at will; it’s on your property, after all, right?).

    At some point, individualism must give way to collective organization if we are to have social orders and societies; the only debate is where that line should be drawn.

    Property rights aren’t – and shouldn’t – be absolute. At the same time, they shouldn’t be easily trampled, either.

  19. rebelliousvanilla says:

    Gorb, it is on my property, but if I pollute it, I must keep the pollution on my property. See, the pollution is my property and making it go on Polymath’s land would be pretty much like me driving my truck through his house. 🙂 So that’s a bad argument. Also, the law is about rain water, so arguments about rivers are hardly relevant. It’s obvious that if you incurr a loss to someone by undertaking a direct action, you shouldn’t get off scott free.

    And I don’t care about having social orders so if I was a lawyer there, I’d do a pro bonno case by helping one of these people sue the state for damages since the state property did damage to theirs, since exposing the ridiculousness of today’s world by making it as absurd as possible is my wish. Just like I support the extension of civil rights to all life forms, for example. Since species don’t really exist(and they really don’t, if you follow the logic of races don’t exist and apply it to species because the same arguments are done about those too), I think yeast should have the same rights as you – you do share 70% of your DNA with yeast and 98% with chimps, so heh. I hardly see why they shouldn’t have equal rights. And this includes you being executed for genocide if you take antibiotics and kill yeast.

  20. Polymath says:

    Rivers get fed from rainwater. If everyone in your state trapped their rainwater to irrigate their crops, the people in the downstream state would be screwed because they’d have a lot smaller river. So you would be affecting them.

  21. rebelliousvanilla says:

    You realize that you trap rainwater and water the soil with it and then it goes into the river, right? And by the way, this just shows that people downstream should pay people upstream for their water.

  22. Polymath says:

    FV, I got a better version of the avatar pic, here’s what you get when you follow my instructions above:

  23. Polymath says:

    Here’s another reason Obamacare is unconstitutional:

    ObamaCare and the General Welfare Clause

    Legislators never bother about whether the laws they pass are unconstitutional because they face no negative consequences if they are, voters are not sophisticated enough to hold them accountable for this. and the courts don’t always overturn unconstitutional laws, or only do so after many years when the damage has been done. When Bush signed the McCain-Feingold campaign finance reform bill the spin the Republicans put out was that it was OK, the Supreme Court would overturn the bad parts of the law, but they didn’t, McCain abided by his own bill, and Obama broke his promise and took private money rather than accept the bill’s spending limits, allowing him to spend McCain into the ground. This was ironic justice, the Republicans deserved to lose because they ignored their responsibilities to the Constitution.

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