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Legal Theories on the Health Care bill?

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bigs5068:
I am curious if & when this whole thing gets to the Supreme Court what the arguments will be. It seems like it might violate the 10th amendment to me, but I know it is uncertain if that is a truism or something that can make legislation unconstitutional.  If any actual lawyer has an opinion I would be interested in hearing it. The news seems to ramble on without saying anything really and I would love to hear what the Supreme Court will actually decide when it gets there.

Thane Messinger:

--- Quote from: bigs5068 on January 07, 2011, 04:07:26 PM ---I am curious if & when this whole thing gets to the Supreme Court what the arguments will be. It seems like it might violate the 10th amendment to me, but I know it is uncertain if that is a truism or something that can make legislation unconstitutional.  If any actual lawyer has an opinion I would be interested in hearing it. The news seems to ramble on without saying anything really and I would love to hear what the Supreme Court will actually decide when it gets there.

--- End quote ---


10th Amendment?  What's that?!*

* A jurisprudential double-entendre for those Federalists among us.  = :   )

Hamilton:
I think proponents are saying it is OK under the commerce clause - so the challenge will be showing certain provisions are unconstitutional under the CC.  Personally, I think a constitutional ammendment is in order clarifying and limiting congressional power under the commerce clause.

bigs5068:
The 10th Amendment came up in the New York v. United States case where the court said that you could not tell the State how to spend resources regarding nuclear waste disposal. The same thing happened in Printz v. United States where the Fed could not force local police to enforce the Brady Bill. There were some other cases that I can't find that said the 10th amendment does not really mean anything though and it seems up in the air. I am not real sure how the health bill works, but I was under the impression it required states to direct resources towards the bill without a choice. 

I could definitely see a commerce clause argument come up. I agree with Hamilton on that it should be given a bit more clarity although it is a great way for Con Law Professors to give Exams :).

bigs5068:
W

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