Check out the latest wackiness by "Sideshow Bob" Marshall. Believe it or not, this time Marshall's proposing a "healthcare freedom" constitutional amendment based on his belief that "it is unconstitutional for the government to mandate, at risk of penalty, that all individuals have insurance or that companies provide insurance for employees, as contemplated in bills being considered by the U.S. House and Senate." Anyway, I'm not a lawyer, but I know plenty of good ones. The following is one excellent attorney's response to Bob Marshall's "healthcare freedom" amendment idea.---The alleged claim about "duress" is bogus. "Duress" is a private contract law doctrine developed to deal with instances of grossly unequal bargaining power between two private parties--like a big credit company and an impoverished borrower. When any level of government passes a law that requires people to do things that some of them would prefer not to do, that is not "duress" as defined by this private contract law doctrine.Over at the Constitutional Law Prof Blog, they also believe that Marshall has no leg to stand on, based on two major arguments: 1) "an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison;" and 2) "Congress can adopt an excise tax to an end that is within its other constitutional powers...[but] even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing 'tax.'"
---Any federal healthcare legislation will present issues completely different from the issues involved with the VA transportation authority. The authority was state legislation that the Virginia Supreme Ct found to violate the Virginia Constitution, but under a long line of U.S. Supreme Court cases, no state can abrogate any federal constitutional right by putting something in that state's constitution that says that something that is permitted under the federal constitution is barred by the state constitution.
---I could go on, but this is political grandstanding by Bob Marshall that is not much different from George Wallace standing in the "school house door" for the photo op, and then stepping aside when the feds arrived.
Finally, check out Media Matters' "Legal experts debunk conservative media's claim that health reform proposals are unconstitutional," including one constitutional expert's analysis that "[u]nder an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce."
Unfortunately, logic and legal precedent may not prevail in Virginia. Instead, now that Ken Kookinelli's going to be in the AG's office and Pat Robertson's Manchurian Candidate's going to be in the governor's mansion, Bob Marshall will have plenty of fellow right-wing ideologue fellow travelers who will be sympathetic to his views. Nope, this is not going to be a fun four years -- unless, that is, you like watching sideshows, freak shows, and ultimately, train wrecks.
