Posted by Orin Kerr:
Count the Errors:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253204659
Once in a while I come across an op-ed filled with so many errors,
misstatements, and plainly weak claims that the mere number of those
becomes far more interesting than the argument of the op-ed itself. A
case in point is [1]today's Wall Street Journal op-ed by Fox News
Channel senior judicial analyst Andrew P. Napolitano, which argues
that President Obama's health care proposals are unconstitutional
because they exceed the commerce clause power. Here's an excerpt; how
many errors, misstatements, and plainly weak claims can you count?
The Supreme Court finally came to its senses when it invalidated
a congressional ban on illegal guns within 1,000 feet of public
schools. In United States v. Lopez (1995), the Court ruled that the
Commerce Clause may only be used by Congress to regulate human
activity that is truly commercial at its core and that has not
traditionally been regulated by the states. The movement of illegal
guns from one state to another, the Court ruled, was criminal and
not commercial at its core, and school safety has historically been
a state function.
Applying these principles to President Barack Obama's health-care
proposal, it's clear that his plan is unconstitutional at its core.
The practice of medicine consists of the delivery of intimate
services to the human body. In almost all instances, the delivery
of medical services occurs in one place and does not move across
interstate lines. One goes to a physician not to engage in
commercial activity, as the Framers of the Constitution understood,
but to improve one's health. And the practice of medicine, much
like public school safety, has been regulated by states for the
past century.
There are also errors by omission, like the curious decision to
ignore [2]Gonzales v. Raich, but I think it's only sporting to stick
to claims actually made.
Thanks to the [3]WSJ Law Blog for the link.
References
1.
http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html
2. http://www.law.cornell.edu/supct/html/03-1454.ZO.html
3.
http://blogs.wsj.com/law/2009/09/16/is-obamas-health-care-reform-proposal-unconstitutional/
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