Tuesday, December 14, 2010

More on Judge Hudson's Rulling on Obamacare

Brooklyn Law’s Jason Mazzone (via Jonathan Adler on Volokh) states that Judge Hudson's use of the word "activity" to describe constitutional limits on Congress under the Commerce Clause is written to influence Justice Scalia, who wrote a concurring opinion in Gonzales vs Raich, see my previous post. Scalia apparently wanted to place limits on the commerce clause authority granted to the Congress, hence his separate opinion.
Scalia’s opinion in Raich on the scope of the necessary and proper clause refers throughout to the regulation of activity: he uses the word 42 times. Activity is the key to understanding Judge Hudson’s opinion in Virginia v. Sebelius.
There is also another avenue of challenge to Obamacare that I don't believe has been fully explored, the prohibition on Bills of Attainder. From usconstitution.net:
In the context of the Constitution, a Bill of Attainder is meant to mean a bill that has a negative effect on a single person or group (for example, a fine or term of imprisonment). Originally, a Bill of Attainder sentenced an individual to death, though this detail is no longer required to have an enactment be ruled a Bill of Attainder.
In Fountas v Dormitzer, a challenge to Romneycare the law was challenged on those grounds:
The method of collecting the fines was contested as a Bill of Attainder as the fines are collected through the income tax return without any charges ever being filed and the law does not provide for a trial in a court of law to determine guilt. Bills of Attainder are prohibited to the states by Article 1 Section 10 of the US Constitution.
However, this argument did not get a full airing in court. Further, I think the manner in which it was articulated misses the point. In my view Obamacare punishes a class of citizens who have not been provided health care by their employer or by the government. These citizens, by not taking any specific action, are then being punished for that failure without due process.

No comments:

Post a Comment