Payroll tax cut (AKA, 60-day raid on S.S. Trust Fund) Open Thread

I’ve been watching the news all morning as the showdown on the so-called Payroll Tax Cut heads toward a climax.  Numerous commitments this afternoon preclude me from offering my take on it right now, but the issue deserves an open thread.

 

Have at it — play nice.

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137 thoughts on “Payroll tax cut (AKA, 60-day raid on S.S. Trust Fund) Open Thread

  1. Amazona

    I think it was this question: “Tell us which power delegated to the United States by the Constitution requires the government to participate in private health care.” that got wattle heading for the hills.

    1. watsonredux

      Amy, this thread is stale because you, me and apparently Clown are the only ones still reading it.

      You said, “The body of the original Constitution includes the enumerated duties of the federal government—the MUSTS.” The Constitution includes the Commerce Clause and the Necessary and Proper Clause.

      But since, according to you, these have nothing to do with the constitutionality of the Affordable Health Care Act, then please enlighten us. Since the law has landed in court–e.g., Commonwealth v. Sibelus–what were the arguments on both sides? And on what basis did the judge rule?

      1. neocon1

        wastooge

        –what were the arguments on both sides? And on what basis did the judge rule?

        LOOK it up……..
        there is this handy thing goog…………

  2. Amazona

    The plaintiff challenged the PPACA based on its inclusion of the individual health insurance mandate. The complaint explained that whether or not a Virginian purchases health insurance is not a matter of interstate commerce, and that therefore Congress cannot regulate it as part of its powers according to the Commerce Clause. Furthermore, the plaintiff cited previous cases (U.S. v. Lopez, U.S. v. Morrison, Gonzales v. Raich, McCulloch v. Maryland, and Calder v. Bull), and argued that Congress has never had the power to require the purchase of any good or service. To give Congress this power now undermines the concept of enumerated powers in the U.S. Constitution.

    During the October 18th Hearing for Summary Judgment, Judge Hudson asked the Defendants how “not engaging in commerce” can be governed. Government responded that not purchasing insurance is “an economic decision” and will cause the unengaged to use public assistance therefore impacting the entire economy. Plaintiffs therefore contended that if the government can force you to buy insurance so that you won’t receive government assistance, then they can force you to buy a car because otherwise you’d be using public transportation.

    December 13 update: Judge Hudson ruled that the individual mandate is unconstitutional.

    An appeal was denied.

    Clearly I am not the only one who realizes that forcing people to buy a product or service or enter into a contract is most definitely NOT part of either the Commerce Clause or the Necessary and Proper Clause.

    Perhaps a little reading of contemporaneous writings by the men who actually wrote the Constitution would clear this up for you.

  3. Amazona

    I am quite sure watty won’t look up any of the writings of any of the Founding Fathers, so I will include a couple of references—one in Jefferson’s own words, with his own emphasis, and one a scholarly examination of Madison’s position.

    Or, as some claim, “positions”. In the quote of the analysis of Madison’s words, the bold emphasis is mine.

    ****************************************************

    For proponents of a limited central government, the General Welfare Clause has been a source of great mischief. Interpreted elastically by constitutionalists of the “living document” persuasion, the Clause has helped serve up a gourmand’s feast of government programs, regulations, and intrusions that would have been unimaginable to the Framers.

    Publicly, Madison proclaimed that the General Welfare Clause is merely a synonym for the enumerated powers considered collectively, not an independent source of power. But privately, some claim that Madison believed that the General Welfare Clause delegates to the Congress plenary legislative power; that the enumeration of specific powers served simply to allocate and assign governmental functions, establish certain procedural limitations, and illustrate some of the powers deemed to be necessary and proper. This alleged difference between Madison’s public and private persona is at the root of the so-called Madisonian contradiction.

    Madison’s public position, ascribed to him by Crosskey, was that substantive powers are defined by specifying their number, kind, and application. On the contrary, Sorenson’s explanation is that (1) Madison perceived the Preamble of the Constitution as prescribing a limited number of limited ends; (2) the enumeration defines those ends more precisely; (3) the general welfare and other clauses that make up the Preamble vest particular powers beyond the enumeration, but only to accomplish the limited ends; and (4) the particular powers thus vested can be identified only through an examination of the enumerated powers themselves, in their relation to the authorized ends.

    ************************************************

    “Today’s political analysts exchange differing opinions on the “general welfare” and “necessary and proper” clauses, but Jefferson’s explanations of them are more than a matter of opinion; they reveal the true intent of the American republic’s framers. Here is Jefferson’s historic opinion (verbatim, even the italics were added by Jefferson–not me–for emphasis):

    ’1. To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes that purpose.

    To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”
    ********************************

    Now I am going to add my own emphasis to Jefferson’s words:

    They are not to lay taxes ad libitum for any purpose they please; but only >i> to pay the debts or provide for the welfare of the Union. (Not the welfare of the people, but of the Union )

    To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

  4. watsonredux

    Amy said, “The complaint explained that whether or not a Virginian purchases health insurance is not a matter of interstate commerce, and that therefore Congress cannot regulate it as part of its powers according to the Commerce Clause.”

    Hmmm. So the argument did have something to do with the Commerce Clause and the Necessary and Proper Clause? Gee. What a surprise.

    1. Amazona

      No, you silly…the complaint explained that the mandate does NOT have something to do with the Commerce Clause and the Necessary and Proper Clause.

      You know how I can tell? BECAUSE IT SAYS SO.

      “…whether or not a Virginian purchases health insurance is not a matter of interstate commerce,..

      The argument has “…something to do with the Commerce Clause and the Necessary and Proper Clause…” only it that it points out that it does NOT have “…something to do with the Commerce Clause and the Necessary and Proper Clause..” and in doing so used some of these words.

      And this went right over your head. Hmmmm. What a surprise.

      1. watsonredux

        No, I asked Amy two very simple questions: Since the law has landed in court–e.g., Commonwealth v. Sibelus–what were the arguments on both sides? And on what basis did the judge rule?

        So far as I can tell, it revolved entirely on the interpretation of the Commerce Clause and the Necessary and Proper Clause. Nothing Amy has said disputes that, no matter how desperately she feels the need to insult me or feel superior. And I think you’re smart enough to realize that, too, spook, so I’m perplexed at why you are misinterpreting what I wrote.

        To quote from Judge Hudson’s opinion, “First, the Commonwealth contents that the Minimum Essential Coverage Provision, and affiliated penally, are beyond the outer limits of the Commerce Clause and associated Necessary and Proper Clause as measured by U.S. Supreme Court precedent.”

        To summarize the other side, again quoting Judge Hudson: “In order to guarantee the success of these reforms, the Secretary maintains that Congress properly exercised its powers under the Commerce Clause, or alternatively the Necessary and Proper Clause, to adopt a regulatory mechanism to effectuate these health care market reforms, namely the Minimum Essential Coverage Provision.”

        So when I say that “the argument did have something to do with the Commerce Clause and the Necessary and Proper Clause,” it is obviously, self-evidently so. That’s what the case was about. Go read the opinion.

      2. Amazona

        No,he isn’t. He is playing an infantile little game of semantics, where he makes silly rules and then preens because, according to them (and only them) he “won”.

        He seems quite taken with the obvious fact that someone else made the same feeble (and ineffectual) argument he found so compelling, and quite as oblivious to the fact that it failed.

        No one “misinterpreted” what he wrote. It’s just that no one realized the importance the wattle would attach to the fact that the case was based on these feeble claims, or so little to the ruling.

        It’s a wattle version of “it depends on what the meaning of “is” is”.

        But let’s let watty start off the year with a victory, even a pity point, as it is not very likely he will see another.

        Yes, the case was about the Commerce Clause and the Necessary and Proper Clause, or at least about the strange claim that either or both of these allowed the federal government to force people to buy products or enter into contracts. This seems to be all that wattle cares about, so yes, this was the feeble basis for the case.

        The outcome of the case was a ruling that no, they DON’T have that meaning or that power.

        I notice that he has completely ignored the words of Madison and Jefferson on the subject.

      3. Amazona

        Advance apologies to the over-sensitive wattle, in case he feels that Jefferson’s words are an effort to appear superior. In this case Jefferson is talking about the phrase “for the general welfare”, another which the big-government Left has tried to use to back its power grab efforts. However, the highlighted phrases also apply to other efforts to expand the size and scope of federal power.

        They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

        To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

  5. Amazona

    Article I, Section. 8.

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; ( see Jefferson’s comment on this, above) but all Duties, Imposts and Excises shall be uniform throughout the United States;

    To borrow Money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    To establish Post Offices and post Roads;

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    To constitute Tribunals inferior to the supreme Court;

    To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    To make Rules for the Government and Regulation of the land and naval Forces;

    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
    ***************************

    Therefore, the Necessary and Proper Clause can apply only to the forgoing powers and all other Powers vested by this Constitution —–it cannot be seen as a stand-alone clause, as it is quite clearly stated to refer to the Execution of other powers.

    This leaves us with the question of whether or not forcing individuals to purchase products or enter into contracts can be, somehow, redefined as “Commerce among the several States”. And as it is impossible to rationally claim that an agreement between an individual and a company is the same as “commerce among States ” the whole effort to use these clauses is patently ridiculous.

    Commerce among states can mean only one thing—commerce between or among states. If the argument is made that a man in Nebraska buying insurance from a company based in Arizona constitutes “commerce among…… States” then the question becomes, not only whether the man can be FORCED to buy this insurance, but the nature of federal regulation regarding the fact that the company sells insurance in more than one state. There can be regulation on the commerce, but not upon the individual in either state.

    That is, if your goal is not the massive expansion of federal scope and power.

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