Thursday, June 14, 2012
Three Basic Answers to the Question of "Existence."
Summary by Roger D. Thome
He is There and He is Not Silent by
Francis A. Schaeffer.
There are three basic answers to the question of "existence."
The first basic answer is that everything that exists has come out of absolutely nothing. In other words, you begin with nothing, If one is to accept this answer, it must be absolutely nothing, in other words nothing nothing, which means no energy, no mass, no motion, and no personality. The truth is, this argument has never been sustained, for it is unthinkable that all that now is has come out of utter nothing.
The second possible answer in the area of existence is that all that now is had an impersonal beginning. This concept is often called "pantheism." This impersonality may be mass, energy, or motion, but they are all impersonal, and all equally impersonal. The great problem with dealing with the impersonal is to find any meaning for the particulars. A particular is any individual factor or thing - the separate parts of the whole. A drop of water is a particular, and so is a man. If we begin with the impersonal, then how do any of the particulars that now exist, including man, have any meaning, any significance? Beginning with the impersonal, everything, including man, must be explained in terms of the impersonal + time + chance. And, no one has ever demonstrated how time, plus chance, beginning with an impersonal, can produce the needed complexity of the universe, let alone the personality of man.
The third answer is to begin with a personal beginning. And, once we consider a personal beginning, we have to make another choice. This is the next step. Are we going to choose the answer of God or gods? The difficulty with gods instead of God is that limited gods are not big enough. To have an adequate answer of a personal beginning, we need two things. We need a personal-infinite God. Only a personal-infinite God is big enough. And we need a personal unity and diversity in God, not just an abstract concept of unity and diversity, because we have seen we need a personal God. We need a personal unity and diversity. Without this we have no answer.
Wednesday, June 13, 2012
Roger Thome's Summary of Charles Ferguson's Inside Job
Roger Thome’s Summary of Charles Ferguson’s Inside Job
After the Great Depression, banks were tightly controlled, as they should have been. All mortgages were made between the buyer and his bank. The banks then had a direct interest in how the loan would be repaid. They, therefore, took due diligence with each and every loan to make sure the borrower could repay the loan. Also, the banks at that time were not allowed to make speculative investments. Then (God bless his soul) Pres Reagan came along and deregulated the banks in the early 1980s.
Because of deregulation of both savings and loans and banks, they all (S&Ls first) began making stupid investments and began to fail, thereby risking their customers’ money. Many people lost everything they had because of it.
Just for reference purposes, the investments bank culprits were Citigroup, Goldman Sachs, UBS, Morgan Stanley, Merrill Lynch, Lehman Brothers, J.P. Morgan, Deutsche Bank, Credit Suisse, and Bear Stearns. The financial conglomerates were AIG, MBIA, and AMBAC. The rating companies were Moody’s, Standard & Poor’s, and Fitch. These are all the main players that were greedy and squandered investors’ money with bad investments. The government people involved were Greenspan, Leveitt, Rubin, and Summers. The only government person that tried to warn us was Brooksley Born. More about her later.
By the end of the 1990s, many internet companies dropped massive investments in internet stocks, amounting to 5 trillion, and it was all lost because the value of those stocks was grossly overpriced. Once again, financial regulators allowed the excessive “betting” and subsequent crisis to occur.
Financial engineering became a new field of study and “derivatives” were born. Derivatives are basically bets of various types. The large financial institutions would bet on anything from mergers, to bankruptcies, to the weather. Serious. Although derivatives were dangerous to the stability of the financial system because of their risk, regulators allowed derivatives investing to be unregulated and even denied attempts to regulate derivates.
Brooksley Born (a brilliant mind). You can read more about her here:
http://www.readthebill.org/cases/commodity. She was the chairman of the Commodity Futures Trade Commission (CFTC) Brooksley Born issued a first call for her regulatory commission to have power to oversee financial derivatives. While previous legislative attempts had been made earlier, Born’s efforts were the most direct and threatening to the financial industry. During an April 1998 meeting of the President’s Working Group on Financial Markets, Federal Reserve chairman Alan Greenspan, Clinton Treasury Secretary Robert Rubin (and later Secretary Larry Summers), and Securities and Exchange Commission (SEC) chairman Arthur Levitt opposed Born’s efforts and attempted to derail her.
Her opponents were successful in getting the Commodity Futures Modernization Act passed, which, in essence, said hands off regulating the investment bankers. See http://www.readthebill.org/cases/commodity.
After derivates were allowed, along came a new term and a new way to make money. It was called “securitization,” or “the securitization food chain.” This is what gave birth to the extravagant mortgage lending and the incredible housing bubble. There are five positions in the food chain: 1) home buyers, 2) lenders, 3) investment banks, 4) investors, and 5) insurance companies. A single loan payment passes along the chain, earning material gain for the seller along the way. Securitization means that the investment banks would mix the mortgages with other debts such as corporate buyout debts, car loans, student loans, credit card debt, and this mix is named Collateralized Debt Obligation (CDOs). Then the investment banks “pay” rating agencies to grade the CDOs, and then the investment banks sell the CDOs to investors and received a commission. Insurance companies (AIG in particular) would earn commissions by selling insurance to investors for the CDOs they purchased from the investment banks, which is named Credit Default Swaps. (Starting to stink yet?) Now, because there was no longer any risk to the banks for making bad mortgage loans, the subprime mortgage was born. This was the beginning of the end.
In simplistic terms this whole thing was nothing more than a very fancy and complicated ponzi scheme, whereby you take money from one source to pay another source. It all works fine until something goes wrong. The thing that went wrong in this scenario was the people began to go into foreclosure on their homes because they could not afford them. Thus began the crash of 2008.
In short, the people of the United States were "screwed" by their government, their banks, their investment banks, their financial conglomerates, their insurance companies, and their rating companies. Why? Greed. All of the great brilliant minds in all of these industries figured out a way to package debt, and pass it along with no risk to themselves, make a commission on each sale along the way, and they all made millions and millions of dollars. And then, if that’s not bad enough, when the banks began to fail, our government bailed them out with our money.
Bear Sterns runs out of money in March 2008 and is acquired by J.P. Morgan for 3.00 per share. Fannie Mae and Freddie Mac were acquired by the U.S. government. Lehman Brothers reported record losses and a stock collapse. Numerous investment firms were rated double and triple A shortly before their collapse. AIG owed 13 billion to investors and did not have the money. AIG was acquired by the U.S. government. Investment firms are bailed out with 700 billion from the U.S. Government. And the men who destroyed their own companies and plunged the world into crisis walked away with their fortunes intact.
And, although the administration changed at the end of the crisis, the same Wall Street players are now economic advisors in the new administration.
Does all of this seem too hard to believe? Yes. But is it all true? Yes.
Tuesday, February 1, 2011
Excerpts of Judge Roger Vinson's Decision
Judge Roger Vinson’s Decision
on
The Patient Protection and Affordable Care Act
Outline
Order Granting Summary Judgment
Background (pg 4)
Discussion (pg 6)
I. Medicaid Expansion (Count Four) (pg 6)
II. Individual Mandate (Count One) (pg 13)
A. Standing to Challenge the Individual Mandate (pg 14)
B. Analysis (pg 19)
(1) The Commerce Clause (pg 19)
(a) The Commerce Clause in Its Historical Context (pg 20)
(b) Evolution of Commerce Clause Jurisprudence (pg 27)
(c) Application of the Foregoing to the Facts of this Case (pg 37)
(i) is activity required on the Commerce Clause (pg 39)
(ii) is the Failure to Purchase Health Insurance Activity (pg 44)
(iii) The Purported “Uniqueness” of the Health Care Market (pg 45)
(iv) The “Economic Decision” to Forego Health Insurance (52)
(2) The Necessary and Proper Clause (pg 56)
(3) Constitutionality of the Individual Mandated (pg 63)
(4) Severability (pg 63)
(5) Injunction (pg 75)
Conclusion (pg 75)
Comment and Excerpts
Background (pg 4)
In Count I, all of the plaintiffs challenge the “individual mandate” set forth in
Section 1501 of the Act, which, beginning in 2014 will require that everyone (with
certain limited exceptions) purchase federally-approved health insurance, or pay a
monetary penalty.4 The individual mandate allegedly violates the Commerce Clause,
which is the provision of the Constitution Congress relied on in passing it.
In Count IV, the state plaintiffs challenge the Act to the extent that it alters and amends the
Medicaid program by expanding that program, inter alia, to: (i) include individuals
under the age of 65 with incomes up to 133% of the federal poverty level, and (ii)
render the states responsible for the actual provision of health services thereunder.
This expansion of Medicaid allegedly violates the Spending Clause and principles of
federalism protected under the Ninth and Tenth Amendments. The plaintiffs seek a
declaratory judgment that the Act is unconstitutional and an injunction against its
enforcement.
Discussion – Taking Count Four First (pg 6)
I. Medicaid Expansion (Count Four) (pg 6)
For this claim, the state plaintiffs object to the fundamental and “massive”
changes in the nature and scope of the Medicaid program that the Act will bring
about. They contend that the Act violates the Spending Clause [U.S. Const. art. I,
§ 8, cl. 1] as it significantly expands and alters the Medicaid program to such an
extent they cannot afford the newly-imposed costs and burdens. They insist that
they have no choice but to remain in Medicaid as amended by the Act, which will
eventually require them to “run their budgets off a cliff.” This is alleged to violate
the Constitutional spending principles set forth in South Dakota v. Dole, 483 U.S.
203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases.5
The only real issue with respect to Count IV, as framed in the pleadings, is whether
the Medicaid provisions are impermissibly coercive and effectively commandeer the
states.
(Summary Disposition on this count was granted to the defendants because, although it may significantly expand and alter the Medicaid program to such an extent that they (the states) cannot afford the newly imposed costs and burdens, the states have an option not to participate. However, if they exercise that option, they forgo all federal funds for Medicaid)
II. Individual Mandate (Count One) (pg 13)
The plaintiffs contend that the individual mandate exceeds Congress’ power under the Commerce Clause… The Commerce Clause can only reach individuals and entities engaged in an “activity;” and because the plaintiffs maintain that an individual’s failure to purchase health insurance is, almost by definition, “inactivity,” the individual mandate goes beyond the Commerce Clause and is unconstitutional. The defendants contend that activity is not required before Congress can exercise its Commerce Clause power, but that, even it is required, not having insurance constitutes activity.
(That’s like saying not having something is something. What kind of talk is that)
A. Standing to Challenge the Individual Mandate (pg 14)
To establish standing to challenge a statute, a plaintiff needs to show “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement… and which is not merely hypothetical or conjectural.” There is nothing improbably about the contention that the Individual Mandate is causing plaintiffs to feel economic pressure today.
In sum, the two individual plaintiffs (Brown and Ahlburg), the association NFIB, and at least two of the states (Idaho and Utah) have standing to challenge the individual mandate.
The Constitutionality of the individual mandate is the crux of this entire case.
B. Analysis (pg 19)
(1) The Commerce Clause (pg 19)
[ W]e have identified three broad categories of activity
that Congress may regulate under its commerce power.
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate
activities. Finally, Congress’ commerce authority includes
the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that
substantially affect interstate commerce.
It is thus well settled that Congress has the authority under the Commerce Clause to regulate three – and only three – categories of “activity.” The third activity is the one at issue in this case.
(a) The Commerce Clause in Its Historical Context (pg 20)
(b) Evolution of Commerce Clause Jurisprudence (pg 27)
(c) Application of the Foregoing to the Facts of this Case (pg 37)
(i) is activity required on the Commerce Clause (pg 39)
The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause.
According to the defendants, because the Supreme Court has never identified a distinction between activity and inactivity as a limitation on Congress’ commerce power, to hold otherwise would “break new legal ground” and be “novel” and “unprecedented… There is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before… The government has never required people to buy any good or service as a condition of lawful residence in the United States… It would be a radical departure from existing case law to hold that Congress can regulate “inactivity” under the Commerce Clause… If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power.
Without doubt, existing case law thus extends only to those “activities” that have a substantial relationship to, or substantially affect, interstate commerce.
Having found that “activity” is an indispensable part of the Commerce Clause analysis, the Constitutionality of the individual mandate will turn on whether the failure to buy health insurance is “activity.”
(ii) is the Failure to Purchase Health Insurance Activity (pg 44)
I must agree with the plaintiffs’ contention that the individual mandate regulates “inactivity.”
The defendants insist that the uninsured are active. In fact, they even go so far as to make the claim, which the plaintiffs call absurd, that going without health insurance constitutes economic activity to an even greater extent than the plaintiffs in Wickard or Raich.
(iii) The Purported “Uniqueness” of the Health Care Market (pg 45)
Requiring advance purchase of health insurance based on a future contingency that will substantially affect commerce could also apply to transportation, housing, or nutritional decisions.
The contention that Commerce Clause power should be upheld merely because the government and its experts or scholars claim that it is being exercised to address a particularly acute problem that is singular, special, and rare, that is to say, unique, will not by itself win the day.
The defendants’ argument that people without health insurance are actively engage in interstate commerce based on the purported unique features of the much broader health care market is neither factually convincing nor legally supportable.
(iv) The “Economic Decision” to Forego Health Insurance (52)
The defendants next contend that the uninsured have made the calculated
decision to engage in market timing and try to finance their future medical needs
out-of-pocket rather than through insurance, and that this “economic decision” is
tantamount to activity.
The defendants refer to the failure to buy health insurance as a financing decision… The important distinction is that economic decisions are a much broader and far-reaching category than are activities that substantially affect interstate commerce.
To now hold that Congress may regulate the so-called economic decision to “not” purchase a product or service in anticipation of future consumption is a bridge too far.
I conclude that the individual mandate seeks to regulate economic “inactivity,” which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it understood, defined, and applied I the existing Supreme Court case law.
(2) The Necessary and Proper Clause (pg 56)
The defendants contend that the individual mandate is “also a valid exercise
of Congress’s authority if the provision is analyzed under the Necessary and Proper
Clause.”
One of the amicus curiae briefs illustrates how using the Necessary and
Proper Clause in the manner as suggested by the defendants would vitiate the
enumerated powers principle.
The Necessary and Proper Clause cannot be utilized to “pass laws for the
accomplishment of objects” that are not within Congress’ enumerated powers.
If Congress is allowed to define the scope of its power merely by arguing that a provision is “necessary” to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the
“perfectly harmless” part of the Constitution that Hamilton assured us it was, and
moves that much closer to becoming the “hideous monster [with] devouring jaws”
that he assured us it was not.
The defendants have asserted again and again that the individual mandate is
absolutely “necessary” and “essential” for the Act to operate as it was intended by
Congress. I accept that it is.26 Nevertheless, the individual mandate falls outside the
boundary of Congress’ Commerce Clause authority and cannot be reconciled with a
limited government of enumerated powers. By definition, it cannot be “proper.”
(3) Constitutionality of the Indivdual Mandated (pg 63)
The individual mandate is outside Congress’ Commerce Clause power, and it
cannot be otherwise authorized by an assertion of power under the Necessary and
Proper Clause. It is not Constitutional. Accordingly, summary judgment must be
granted in favor of the plaintiffs on Count I.
(4) Severability (pg 63)
The defendants concede that the individual mandate is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an ‘essential’ part of the Act at least fourteen times in their motion to dismiss.” Thus, the only question is whether
the Act’s other, non-health-insurance-related provisions can stand independently or
whether they, too, must fall with the individual mandate.
The record seems to strongly indicate that Congress would not have passed the Act in
its present form if it had not included the individual mandate. This is because the
individual mandate was indisputably essential to what Congress was ultimately
seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health
reform effort.
The lack of a severability clause in this case is significant because one had
been included in an earlier version of the Act, but it was removed in the bill that
subsequently became law.
The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming.
Moreover, the defendants have conceded that the Act’s health insurance
reforms cannot survive without the individual mandate, which is extremely
significant because the various insurance provisions, in turn, are the very heart of
the Act itself.
Severing the individual mandate from the Act along with the other insurance
reform provisions --- and in the process reconfiguring an exceedingly lengthy and
comprehensive legislative scheme --- cannot be done consistent with the principles
set out above. Going through the 2,700-page Act line-by-line, invalidating dozens
(or hundreds) of some sections while retaining dozens (or hundreds) of others,
would not only take considerable time and extensive briefing, but it would, in the
end, be tantamount to rewriting a statute in an attempt to salvage it, which is
foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would
be impossible to ascertain on a section-by-section basis if a particular statutory
provision could stand (and was intended by Congress to stand) independently of
the individual mandate.
In the final analysis, this Act has been analogized to a finely crafted watch,
and that seems to fit. It has approximately 450 separate pieces, but one essential
piece (the individual mandate) is defective and must be removed. It cannot function
as originally designed.
If Congress intends to implement health care reform --- and there would
appear to be widespread agreement across the political spectrum that reform is
needed --- it should do a comprehensive examination of the Act and make a
legislative determination as to which of its hundreds of provisions and sections will
work as intended without the individual mandate, and which will not. It is Congress
that should consider and decide these quintessentially legislative questions, and not
the courts.
I must conclude that the individual mandate and the
remaining provisions are all inextricably bound together in purpose and must stand
or fall as a single unit. The individual mandate cannot be severed.
(5) Injunction (pg 75)
Declaratory relief is adequate and separate injunctive relief is not necessary.
Conclusion (pg 75)
For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate.
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.
In closing, I will simply observe, once again, that my conclusion in this case
is based on an application of the Commerce Clause law as it exists pursuant to the
Supreme Court’s current interpretation and definition. Only the Supreme Court (or a
Constitutional amendment) can expand that.
For all the reasons stated above and pursuant to Rule 56 of the Federal Rules
of Civil Procedure, the plaintiffs’ motion for summary judgment (doc. 80) is hereby
GRANTED as to its request for declaratory relief on Count I of the Second
Amended Complaint, and DENIED as to its request for injunctive relief; and the
defendants’ motion for summary judgment (doc. 82) is hereby GRANTED on Count
IV of the Second Amended Complaint. The respective cross-motions are each
DENIED.
on
The Patient Protection and Affordable Care Act
Outline
Order Granting Summary Judgment
Background (pg 4)
Discussion (pg 6)
I. Medicaid Expansion (Count Four) (pg 6)
II. Individual Mandate (Count One) (pg 13)
A. Standing to Challenge the Individual Mandate (pg 14)
B. Analysis (pg 19)
(1) The Commerce Clause (pg 19)
(a) The Commerce Clause in Its Historical Context (pg 20)
(b) Evolution of Commerce Clause Jurisprudence (pg 27)
(c) Application of the Foregoing to the Facts of this Case (pg 37)
(i) is activity required on the Commerce Clause (pg 39)
(ii) is the Failure to Purchase Health Insurance Activity (pg 44)
(iii) The Purported “Uniqueness” of the Health Care Market (pg 45)
(iv) The “Economic Decision” to Forego Health Insurance (52)
(2) The Necessary and Proper Clause (pg 56)
(3) Constitutionality of the Individual Mandated (pg 63)
(4) Severability (pg 63)
(5) Injunction (pg 75)
Conclusion (pg 75)
Comment and Excerpts
Background (pg 4)
In Count I, all of the plaintiffs challenge the “individual mandate” set forth in
Section 1501 of the Act, which, beginning in 2014 will require that everyone (with
certain limited exceptions) purchase federally-approved health insurance, or pay a
monetary penalty.4 The individual mandate allegedly violates the Commerce Clause,
which is the provision of the Constitution Congress relied on in passing it.
In Count IV, the state plaintiffs challenge the Act to the extent that it alters and amends the
Medicaid program by expanding that program, inter alia, to: (i) include individuals
under the age of 65 with incomes up to 133% of the federal poverty level, and (ii)
render the states responsible for the actual provision of health services thereunder.
This expansion of Medicaid allegedly violates the Spending Clause and principles of
federalism protected under the Ninth and Tenth Amendments. The plaintiffs seek a
declaratory judgment that the Act is unconstitutional and an injunction against its
enforcement.
Discussion – Taking Count Four First (pg 6)
I. Medicaid Expansion (Count Four) (pg 6)
For this claim, the state plaintiffs object to the fundamental and “massive”
changes in the nature and scope of the Medicaid program that the Act will bring
about. They contend that the Act violates the Spending Clause [U.S. Const. art. I,
§ 8, cl. 1] as it significantly expands and alters the Medicaid program to such an
extent they cannot afford the newly-imposed costs and burdens. They insist that
they have no choice but to remain in Medicaid as amended by the Act, which will
eventually require them to “run their budgets off a cliff.” This is alleged to violate
the Constitutional spending principles set forth in South Dakota v. Dole, 483 U.S.
203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases.5
The only real issue with respect to Count IV, as framed in the pleadings, is whether
the Medicaid provisions are impermissibly coercive and effectively commandeer the
states.
(Summary Disposition on this count was granted to the defendants because, although it may significantly expand and alter the Medicaid program to such an extent that they (the states) cannot afford the newly imposed costs and burdens, the states have an option not to participate. However, if they exercise that option, they forgo all federal funds for Medicaid)
II. Individual Mandate (Count One) (pg 13)
The plaintiffs contend that the individual mandate exceeds Congress’ power under the Commerce Clause… The Commerce Clause can only reach individuals and entities engaged in an “activity;” and because the plaintiffs maintain that an individual’s failure to purchase health insurance is, almost by definition, “inactivity,” the individual mandate goes beyond the Commerce Clause and is unconstitutional. The defendants contend that activity is not required before Congress can exercise its Commerce Clause power, but that, even it is required, not having insurance constitutes activity.
(That’s like saying not having something is something. What kind of talk is that)
A. Standing to Challenge the Individual Mandate (pg 14)
To establish standing to challenge a statute, a plaintiff needs to show “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement… and which is not merely hypothetical or conjectural.” There is nothing improbably about the contention that the Individual Mandate is causing plaintiffs to feel economic pressure today.
In sum, the two individual plaintiffs (Brown and Ahlburg), the association NFIB, and at least two of the states (Idaho and Utah) have standing to challenge the individual mandate.
The Constitutionality of the individual mandate is the crux of this entire case.
B. Analysis (pg 19)
(1) The Commerce Clause (pg 19)
[ W]e have identified three broad categories of activity
that Congress may regulate under its commerce power.
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate
activities. Finally, Congress’ commerce authority includes
the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that
substantially affect interstate commerce.
It is thus well settled that Congress has the authority under the Commerce Clause to regulate three – and only three – categories of “activity.” The third activity is the one at issue in this case.
(a) The Commerce Clause in Its Historical Context (pg 20)
(b) Evolution of Commerce Clause Jurisprudence (pg 27)
(c) Application of the Foregoing to the Facts of this Case (pg 37)
(i) is activity required on the Commerce Clause (pg 39)
The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause.
According to the defendants, because the Supreme Court has never identified a distinction between activity and inactivity as a limitation on Congress’ commerce power, to hold otherwise would “break new legal ground” and be “novel” and “unprecedented… There is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before… The government has never required people to buy any good or service as a condition of lawful residence in the United States… It would be a radical departure from existing case law to hold that Congress can regulate “inactivity” under the Commerce Clause… If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power.
Without doubt, existing case law thus extends only to those “activities” that have a substantial relationship to, or substantially affect, interstate commerce.
Having found that “activity” is an indispensable part of the Commerce Clause analysis, the Constitutionality of the individual mandate will turn on whether the failure to buy health insurance is “activity.”
(ii) is the Failure to Purchase Health Insurance Activity (pg 44)
I must agree with the plaintiffs’ contention that the individual mandate regulates “inactivity.”
The defendants insist that the uninsured are active. In fact, they even go so far as to make the claim, which the plaintiffs call absurd, that going without health insurance constitutes economic activity to an even greater extent than the plaintiffs in Wickard or Raich.
(iii) The Purported “Uniqueness” of the Health Care Market (pg 45)
Requiring advance purchase of health insurance based on a future contingency that will substantially affect commerce could also apply to transportation, housing, or nutritional decisions.
The contention that Commerce Clause power should be upheld merely because the government and its experts or scholars claim that it is being exercised to address a particularly acute problem that is singular, special, and rare, that is to say, unique, will not by itself win the day.
The defendants’ argument that people without health insurance are actively engage in interstate commerce based on the purported unique features of the much broader health care market is neither factually convincing nor legally supportable.
(iv) The “Economic Decision” to Forego Health Insurance (52)
The defendants next contend that the uninsured have made the calculated
decision to engage in market timing and try to finance their future medical needs
out-of-pocket rather than through insurance, and that this “economic decision” is
tantamount to activity.
The defendants refer to the failure to buy health insurance as a financing decision… The important distinction is that economic decisions are a much broader and far-reaching category than are activities that substantially affect interstate commerce.
To now hold that Congress may regulate the so-called economic decision to “not” purchase a product or service in anticipation of future consumption is a bridge too far.
I conclude that the individual mandate seeks to regulate economic “inactivity,” which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it understood, defined, and applied I the existing Supreme Court case law.
(2) The Necessary and Proper Clause (pg 56)
The defendants contend that the individual mandate is “also a valid exercise
of Congress’s authority if the provision is analyzed under the Necessary and Proper
Clause.”
One of the amicus curiae briefs illustrates how using the Necessary and
Proper Clause in the manner as suggested by the defendants would vitiate the
enumerated powers principle.
The Necessary and Proper Clause cannot be utilized to “pass laws for the
accomplishment of objects” that are not within Congress’ enumerated powers.
If Congress is allowed to define the scope of its power merely by arguing that a provision is “necessary” to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the
“perfectly harmless” part of the Constitution that Hamilton assured us it was, and
moves that much closer to becoming the “hideous monster [with] devouring jaws”
that he assured us it was not.
The defendants have asserted again and again that the individual mandate is
absolutely “necessary” and “essential” for the Act to operate as it was intended by
Congress. I accept that it is.26 Nevertheless, the individual mandate falls outside the
boundary of Congress’ Commerce Clause authority and cannot be reconciled with a
limited government of enumerated powers. By definition, it cannot be “proper.”
(3) Constitutionality of the Indivdual Mandated (pg 63)
The individual mandate is outside Congress’ Commerce Clause power, and it
cannot be otherwise authorized by an assertion of power under the Necessary and
Proper Clause. It is not Constitutional. Accordingly, summary judgment must be
granted in favor of the plaintiffs on Count I.
(4) Severability (pg 63)
The defendants concede that the individual mandate is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an ‘essential’ part of the Act at least fourteen times in their motion to dismiss.” Thus, the only question is whether
the Act’s other, non-health-insurance-related provisions can stand independently or
whether they, too, must fall with the individual mandate.
The record seems to strongly indicate that Congress would not have passed the Act in
its present form if it had not included the individual mandate. This is because the
individual mandate was indisputably essential to what Congress was ultimately
seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health
reform effort.
The lack of a severability clause in this case is significant because one had
been included in an earlier version of the Act, but it was removed in the bill that
subsequently became law.
The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming.
Moreover, the defendants have conceded that the Act’s health insurance
reforms cannot survive without the individual mandate, which is extremely
significant because the various insurance provisions, in turn, are the very heart of
the Act itself.
Severing the individual mandate from the Act along with the other insurance
reform provisions --- and in the process reconfiguring an exceedingly lengthy and
comprehensive legislative scheme --- cannot be done consistent with the principles
set out above. Going through the 2,700-page Act line-by-line, invalidating dozens
(or hundreds) of some sections while retaining dozens (or hundreds) of others,
would not only take considerable time and extensive briefing, but it would, in the
end, be tantamount to rewriting a statute in an attempt to salvage it, which is
foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would
be impossible to ascertain on a section-by-section basis if a particular statutory
provision could stand (and was intended by Congress to stand) independently of
the individual mandate.
In the final analysis, this Act has been analogized to a finely crafted watch,
and that seems to fit. It has approximately 450 separate pieces, but one essential
piece (the individual mandate) is defective and must be removed. It cannot function
as originally designed.
If Congress intends to implement health care reform --- and there would
appear to be widespread agreement across the political spectrum that reform is
needed --- it should do a comprehensive examination of the Act and make a
legislative determination as to which of its hundreds of provisions and sections will
work as intended without the individual mandate, and which will not. It is Congress
that should consider and decide these quintessentially legislative questions, and not
the courts.
I must conclude that the individual mandate and the
remaining provisions are all inextricably bound together in purpose and must stand
or fall as a single unit. The individual mandate cannot be severed.
(5) Injunction (pg 75)
Declaratory relief is adequate and separate injunctive relief is not necessary.
Conclusion (pg 75)
For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate.
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.
In closing, I will simply observe, once again, that my conclusion in this case
is based on an application of the Commerce Clause law as it exists pursuant to the
Supreme Court’s current interpretation and definition. Only the Supreme Court (or a
Constitutional amendment) can expand that.
For all the reasons stated above and pursuant to Rule 56 of the Federal Rules
of Civil Procedure, the plaintiffs’ motion for summary judgment (doc. 80) is hereby
GRANTED as to its request for declaratory relief on Count I of the Second
Amended Complaint, and DENIED as to its request for injunctive relief; and the
defendants’ motion for summary judgment (doc. 82) is hereby GRANTED on Count
IV of the Second Amended Complaint. The respective cross-motions are each
DENIED.
Saturday, December 18, 2010
Roger’s Goetta
Ingredients
2 lbs of Pork or 2 1-lb tubes of Bob Evans Hot Pork Sausage
1 lb of ground round
1 onion, finely chopped
3 bay leaves
1 tsp. reg. salt
1 tsp. garlic salt
1 tbs. ground sage
1 tbs. cayenne pepper (optional)
6 ½ cups of water
4 cups of Instant (1 minute) Oatmeal ***
Place 6 ½ cups of water in large cooker. Put in meat, and all other ingredients (except for the oatmeal) in the water. Break up the meat with a potato masher. Allow meat and spices to look on high (boil) uncovered for at least 25 minutes from first high boil (until meat looks all cooked and has lost all its redness and allow some of the water to cook off) Take impurities off the top while boiling at high temp.
Take out the bay leaves.
Turn heat down to simmer. Add 4 cups of Instant Oatmeal stirring every couple of minutes in until it thickens. Add more if you think you need it. Mixture must be thick when completed.
When the mixture has been completely thickened, and all water is absorbed by oatmeal, pour mixture into two previously treated (with Pam) loaf pans of the size 4 ½ x 8 ½ by 4 inches deep.
Place in refrigerator until firm enough to remove from pans. When ready, slice around outside edge of pan and turn upside down, and bang on counter until loaf falls out. Then, using sharp knife, cut into ¼ inch slices.
In no-stick frying pan, spray with Pam, put in about 2 tablespoons of oil, and cook on high heat until down side is very brown, then turn over, reduce heat to medium, and cook second side until very brown. Remember the goetta has already been cooked, so your goal is to just brown it on each side.
Serve with ketchup.
Ingredients
2 lbs of Pork or 2 1-lb tubes of Bob Evans Hot Pork Sausage
1 lb of ground round
1 onion, finely chopped
3 bay leaves
1 tsp. reg. salt
1 tsp. garlic salt
1 tbs. ground sage
1 tbs. cayenne pepper (optional)
6 ½ cups of water
4 cups of Instant (1 minute) Oatmeal ***
Place 6 ½ cups of water in large cooker. Put in meat, and all other ingredients (except for the oatmeal) in the water. Break up the meat with a potato masher. Allow meat and spices to look on high (boil) uncovered for at least 25 minutes from first high boil (until meat looks all cooked and has lost all its redness and allow some of the water to cook off) Take impurities off the top while boiling at high temp.
Take out the bay leaves.
Turn heat down to simmer. Add 4 cups of Instant Oatmeal stirring every couple of minutes in until it thickens. Add more if you think you need it. Mixture must be thick when completed.
When the mixture has been completely thickened, and all water is absorbed by oatmeal, pour mixture into two previously treated (with Pam) loaf pans of the size 4 ½ x 8 ½ by 4 inches deep.
Place in refrigerator until firm enough to remove from pans. When ready, slice around outside edge of pan and turn upside down, and bang on counter until loaf falls out. Then, using sharp knife, cut into ¼ inch slices.
In no-stick frying pan, spray with Pam, put in about 2 tablespoons of oil, and cook on high heat until down side is very brown, then turn over, reduce heat to medium, and cook second side until very brown. Remember the goetta has already been cooked, so your goal is to just brown it on each side.
Serve with ketchup.
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