March 28, 2012
REPRESENTATION AND TAXATION:
Taxation's legality is key to health reform (Michael Hiltzik, March 28, 2012, LA Times)
One afternoon in 1934, Supreme Court Justice Harlan Fiske Stone decided to quietly help Labor Secretary Frances Perkins out of a jam.
Her quandary was how to write a Social Security law that would survive scrutiny by the court's conservative bloc. Stone, a progressive, pulled her aside during a tea party at his home, glanced around to make sure he wasn't overheard, and whispered, "The taxing power of the federal government, my dear; the taxing power is sufficient for everything you want and need."
As Stone counseled, the court had earlier held that the government's taxing power was virtually absolute. And so it was that tax provisions were liberally sown throughout the bill enacting the nation's landmark social insurance program, which handily survived Supreme Court challenge a few years later. [...]
Once the lectern was turned over to lawyers for the challengers, including the small-business group and 26 states, that wasn't so clear. Kennedy and Roberts both indicated that they were at least receptive to the government position that healthcare is an interstate market that involves virtually every American, and is therefore ripe for congressional regulation.
"The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries," Kennedy said. "That's my concern in this case."
Will Scalia Rule in Favor of Obamacare? (Noah Kristula-Green Mar 27, 2012, Daily Beast)
Posted by Orrin Judd at March 28, 2012 6:41 AMFor amateur and professional court watchers who want to have a refresher on just how much power Scalia thinks Congress has, here are some of the key parts of Scalia's ruling on the subject. Doug Mataconis provides the highlights:The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce....The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.