i've read chief justice's roberts full decision on Obamacare, you can find it here

http://www.washingtonpost.com/wp-srv/politics/documents/supreme-court-health-care-decision-text.html

the problem i keep coming back to is this: roberts is right to say that the individual mandate is not unconstitutional in the sense that it's alternative is a tax to the IRS, but he simply says the alternative is to enter into a market of commerce to avoid the tax.

no other coercion to enter into a market or be taxes has ever been created outside of charity exemption laws, and Roberts misconstrues the commerce clause for in the context of Obamacare this is NOT a regulation of economic activity, this is a regulation of inactivity.

furthermore, i'll remind you that the idea of judicial review came from Marbury vs Madison, and the idea that courts should be the final factor to decide whether or not something is unconstitutional was NEVER in the constitution

Marshall had taken the stance that laws that ran bely to the constitution could not be upheld by the courts because the courts only supported the constitution. however, by specifically taking the action of deeming the laws unconstitutional, we have a conundrum where the courts are the final arbiter of the law.

Thomas Jefferson wrote on this:

"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves"

While there are natural problems with the separation of power, and how unconstitutional laws would get struck down otherwise, the vast sweeping of power into the judicial branch was NOT the correct solution.

until the Andrew Jackson period, when he challenged court rule, did we see ANOTHER problem: the Executive branch begin to take final charge of the law.

the constitution was ALWAYS meant to be static and amended, but that is NOT what happened with Obamacare. what happened with Obamacare was the continuation of an archaic tradition that gives unnatural power to the judicial branch, and hurts the checks and balances that the founders had originally put in place

dynamic*

lol

@yanik, you are long winded and wrong. Why allow for amendments if the original intent should be maintained? Also, if Supreme Court not intended to interpret as supreme authority on interpretation, why bother having one? If congress disagrees with Supreme Court interpretation of a law, they can always rewrite the law to be clear and thus remove opportunity for ANY interpretation. Else supreme right to change the constitution resides with the people.

"@yanik, you are long winded and wrong. "

Um. yep. This is news?

@Yanik
So, despite the 2nd amendment, the Government does not have to ensure a supply of arms because you have to pay for them. How then can life or liberty be rights? What do you pay for those?

Curious logic.

@Hauta

have you read the constitution?

Article III Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

they were the original court of appeals, and they were there to decide whether or not state laws were in line with federal laws.

the second duty was as follows:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

and let's also look at the supremacy clause:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

many people see this as an advocacy for judicial review, but it's just as easily read that the constitution is to be upheld by the courts. that does NOT mean the courts get to interpret the constitution one way or another.

let me give you a far fetched example that will surely never happen, that elucidates the power the supreme court actually has:

if there is a law created in congress that says restriction of the press is now legal and you can censor new you don't like, and Trump now has 5/9 of the supreme court on his side: they can rule it constitutional.

IS denying freedom of the press unconstitutional? YES! does it matter to the Supreme court: no.

the problem with judicial review is it binds the constitution to the supreme court, rather than binding the supreme court to the constitution.



here are the other powers of the judicial branch if you were wondering:

2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3
1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


next time read the damn constitution.

@diplomat61

Yanik said that a right to something doesn't necessarily mean that you get it for free.

You concluded that every right has to be paid.

It is your logic that is faulty.

@diplomat

"So, despite the 2nd amendment, the Government does not have to ensure a supply of arms because you have to pay for them. How then can life or liberty be rights? What do you pay for those?

Curious logic."

haha very nice. you've caught me. except... i never said that all rights had to be paid for, i just said that rights explicitly CANNOT force others to pay for you.

right to life: nobody can kill you, or directly harm you
right to liberty: nobody can restrict your freedoms outlined in the law
right to bear arms: nobody can take away the means to defend yourself.

now if you believe in a right to healthcare, that can mean two things:

people under threat of force by government have to give up money earned by their own labor so you can receive treatment (What Bernie Sanders means)

people are allowed to use healthcare to make themselves better.


if you ONLY mean the latter of the two, then that falls under "right to life" AND "Right to liberty" because you're taking away their ability to help themselves, and taking away their ability to live.

as i said before, if this is simply a problem of definitions, we can leave it there.


also:

right to bear arms, people cannot take away your already owned weaponry. buying guns ENHANCES your ability in this sense.

right to free speech, is ENHANCED by freedom of press, and freedom of assembly.

right to liberty is ENHANCED by working hard an obtaining material wealth, which allows for more free trade of more and more valuable items.

it's quite obvious to the see the constitutional quandary: why did they give the power to veto laws to the president, and then also vaguely imply that the judges can overrule even that? it makes the president's veto power near pointless.

there's an interesting paper on this that i suggest people on this site read

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1045&context=facpub

furthermore, i'd just like to add that the problem with unconstitutional laws being passed by congress is still a serious one, but the idea that the centralization of power into courts, of which the electorate have NO control over... it expressly goes against the founding tenets of the constitution.

We are left with two problems:

If the SCOTUS rules a bill unconstitutional when it is in fact constitutional, and if the SCOTUS rules a bill constitutional when it is in fact unconstitutional.

there are some ways to restrict the judiciary:

1. term limits. these would have to be significantly longer than most others, perhaps 15-20 years, but it'd limit the effects of bad judges.

2. ???

i'm being serious. this thing is a mess

first congress drafts and internally approves the bill, the president can veto, the congress can override the veto, and the courts can rule it unconstitutional

keeping in mind, the president picks the justices, who are approved by the senate.

if there is believed to be an error on the parts of the court, and there is only a 5-4 decision, then perhaps by decree of the president with a simple majority in the house and a 2/3 majority in the senate there could be... who? which branch do we delegate to preside over the courts? it seems like after they're chosen and approved, they can operate with very little oversight.

this is the problem with judicial review, and giving so much power to a group of people with so little oversight.

@Yanick
"i just said that rights explicitly CANNOT force others to pay for you."

And yet you expect your right to life, liberty, etc to be protected. That costs money. Depending upon your income you may or may not contribute to that.

How is healthcare different?

@diplomat, I think in the conservative world view it isn't different. If you are poor you can be deprived of life and liberty more or less arbitrarily, and that isn't much of an issue. For example, if you can't afford a lawyer, you might be provided one, albeit one with literally two hundred other cases who can spend five minutes on your case. Prosecutors and cops can lie and cheat all they want to frame you, and if you're too poor to afford an expensive lawyer, you're screwed and that's totally ok for conservatives. In the immortal words of conservative icon Justice Antonin Scalia, being innocent is no bar to being executed. It is hard to imagine a more up front admission of the guiding philosophy and aproach to your "rights" by the right wing than that. The ONLY right that is deemed to be absolute in those circles is the right to bear arms.

The judicial branch only rules on laws or the constitution, not laws that don't exist. The legislative branch overrides vetoes.

@Ogion
that may be the practice, but I am interested in Yanik's theoretical answer.

@Zmaj
"You concluded that every right has to be paid."
I don't think that, I was testing the extent of his argument.

@diplomat

"@Yanick
"i just said that rights explicitly CANNOT force others to pay for you."

And yet you expect your right to life, liberty, etc to be protected. That costs money. Depending upon your income you may or may not contribute to that.

How is healthcare different?"


in a sense it's not, but let's not confuse our terms again.

you are saying that the right to life, liberty and property need to be protected, and that costs money, yes? agreed, which is why we bestow powers to the government.

now, i have the right to (healthcare) use medicine to help my body, and it needs to be protected.

anyone who tries to prevent me from using legally obtained medicine, is now restricting my rights, and the state must protect me.



OR you mean Bernie sander's positive rights, which have no basis in the constitution, and by NOT providing you with money for welfare, i am actively stripping you of your POSITIVE rights.


once again, if i have a POSITIVE right for guns, then you not paying for my guns is restricting my POSITIVE right.

but no, we have a NEGATIVE right for guns, which means i'm allowed to own them, and you're not allowed to prevent me




@Ogion

"@diplomat, I think in the conservative world view it isn't different. If you are poor you can be deprived of life and liberty more or less arbitrarily, and that isn't much of an issue. For example, if you can't afford a lawyer, you might be provided one, albeit one with literally two hundred other cases who can spend five minutes on your case."

if you hate the criminal justice system and how TOO MANY GOVERNMENT CREATED LAWS are burdening it, i 100% agree.


"Prosecutors and cops can lie and cheat all they want to frame you, and if you're too poor to afford an expensive lawyer, you're screwed and that's totally ok for conservatives."

it's actually not ok for conservatives. that's bullshit.

but let's look at the liberal solution to cops and prosecutors who hate poor people: give them more taxpayer money!!!

you see, the less power government has, the less they can harm poor people


"In the immortal words of conservative icon Justice Antonin Scalia, being innocent is no bar to being executed."

1. he said exonerated, but you don't know the difference.
2. maybe our court system (BIG GOVERNMENT) is messed up... and also the supreme court has too much sway in some ways... whoa almost like everything i've said before!
3. arguing the current laws around the death penalty with me? do you even libertarian?


"It is hard to imagine a more up front admission of the guiding philosophy and aproach to your "rights" by the right wing than that. The ONLY right that is deemed to be absolute in those circles is the right to bear arms."

and freedom of speech. and religion. and press. and peaceful assembly. and petition. and i think there was this whole "Constitution" thing that conservatives really like... but continue on your mischaracterization train.

your obvious lies are why Trump won.




so... actually maybe stop your bullshit

"you see, the less power government has, the less they can harm poor people"

That isn't true since poor people get harmed directly and indirectly because they don't have the government providing them with things that the rich can buy without thinking.

You already refer to lawyers with the difference between O. J. Simpson being able to hire a Dream Team of the top lawyers and getting an overworked public defender. Even if you have the money for a lawyer, you may not be able to get a good one because they are busy and selective in taking cases.

The Wall Street Journal has a long story today about rural broadband internet service being only slightly above dial-up in speed. While the government has pushed for increased access, if you aren't in an area that the companies want to build better access, then you don't get it. It's only about 80 years since rural areas were finally being electrified as a result of a congressional act because building transmission lines was expensive.

Right now states are objecting to a cut by Congress to cut preventative healthcare plans that would reduce chances of getting major illnesses. A smaller government program would increase healthcare costs in a few years as more people would have expensive illnesses like heart attacks and cancer.

"you see, the less power government has, the less they can harm poor people"

The less they can harm rich and powerful people too. That's why the "billionaire class" has consistently tried to hijack government.

Rise, like lions after slumber
In unvanquishable number!
Shake your chains to earth like dew
Which in sleep had fallen on you:
Ye are many—they are few!

@Randmizer

1. as someone who has for some of his life lived in rural areas with VERY shitty internet: it doesn't mea i get to use government threat of force to get better internet from companies.

2. if people want socialized healthcare, they can do it within their community. don't force me to pay on a massive federal scheme for other people's healthcare.

billionaire classes hijacking political parties...

do you even libertarian bro?

Right. Koch bros.

@JamesYanik - In the US we can either pay using a federal scheme or go back to paying at state level. The old system where the uninsured use emergency rooms and don't pay. Then the state has a reimbursement fund from state taxes to cover unpaid hospital bills to keep the hospital running. Also higher insurance premiums since hospitals raise rates to cover unpaid bills.

People don't realize all the ways they pay for socialized healthcare through taxes. Insurance companies aren't going broke, they just want to increase their profits.

http://money.cnn.com/2017/06/15/news/economy/health-insurers-profits-obamacare/index.html

Left: George soros

@Randomizer

well the first move is to lower the price of drugs and medical equipment across the board, which is most effectively done by the following simultaneously:

- deregulation
- intricate legal liability statutes
- temporary price ceilings

cut the price to produce the good, make the quality of the good a big liability for companies rather than letting the FDA deal with final tests and restricting, and then temporary price caps so the market price can adjust


after that, we'd be able to talk about affordable single payer, and no matter what system we use, drug prices will have dropped

I don't know why we keep on getting hung up on the definition of a "right". Wikipedia defines a right as:

"Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.[1] Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology."

@JamesYanik/Rand Paul is saying a "right" can only be a principle of freedom whilst when people talk of healthcare as a "right" they are meaning an entitlement. I don't understand why we can't all see the bleeding obvious and understand that the word "right" is being used in two different ways and both ways are, how can I say it, "right"! :)

@flash

that's something i've said this entire time: we're mincing our definitions of the word.

however, there is a seemingly widespread consensus on the left that there are no moral repercussions with positive rights, whereas the right feels differently in this country.

the constitution, and the founding fathers, only ever created a system of negative rights.

specific powers could be given to the government by the people, but they were more rigorously outlined.

everything in this matter: went. to. the states.

Flash, that's way too advanced

@"cut the price to produce the good, make the quality of the good a big liability for companies rather than letting the FDA deal with final tests and restricting, and then temporary price caps so the market price can adjust"

I think this suggestion has terrible issies.

Drug safety testing is expensive and difficult, and there are several example of unsafe drugs being released to the general public.

The problem is with the liability. If you create a legal entity (corporation) with full liability for possible damages, but without the financial reserves to pay out those liabilities: so they are selling a drug for $10 to 100 million people - their profits are, for the sake of arguement $2 per person.

If 10% of people suffer serious disability as a side effect, then for their entire life they will need to be taken care. But you've only earned ~$2/ 10% per disabled person. So this loability will bankrupt the corporation. And the investors will still make money from other drugs they have invested in. The state may be left picking up the cost of caring for those people after the company ceases to exist. (And you can't punish the rest of the industry, even if they are the same investors spending their money taking risks which happened to pay off).

Alternatively, it becomes very difficult/expensive to prove that a particular illness/disability was the direct result of a particular drug. The company - bever having seen this side effect in drug trials, can deny liability entirely. And so you have to fund extensive testing to prove the safety of the drug... who does that?

Under the current system, it is regulations which force drug companies to do just that in the first place.

Now some companies might be very careful and not take risks, but all you need is one or two companies to start making tonnes of cash before the others start copying their risky practices (i would like to cite the investment banking crash as an example of just this happening).

We already know what this can be like, especially for cancer causing products, like tobacco. It may take decades for the effects to appear, and you might have a genetic lottery to survive (some people can smoke their entire lives and never get lung cancer). But companies making a profit will attempt to disprove any causal links between their product and the side-effects.

There is no reason for me to think that deregulation will result in any social good. And i believe JY's findamental premise is flawed.

*fundamental, even.