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Rand Paul Is A Mainstream Republican

The Act exceeds Congressís powers under Article I of the Constitution of the United States, and cannot be upheld under the Commerce Clause, Const. art. I, ß8; the Taxing and Spending Clause, id.; or any other provision of the Constitution. -- Para. 56 of the Complaint (PDF) joined by 20 Republican-led states challenging Congress's power under the Commerce Clause to enact the Obama Health Bill

Republican Senators will question Elena Kagan on the constitutionality of the Obama health bill:

[O]n Fox News, Sen. John Barrasso (R-WY) said that he wants to make this fringe view of health care reform a centerpiece of Solicitor General Elena Kaganís Supreme Court confirmation hearing:

BARRASSO: Twenty states right now, Martha, are suing the federal government, and she is going to have to make a decision if sheís on the court about how that goes forward with these 20 states suing. So where do statesí rights come in, where is the role of the federal government, what can they mandate to the American people, and Iím going to want to hear answers on that.

(Emphasis supplied.) Rand Paul's views on the Civil Rights Act and the Congress' Commerce Clause powers are not fringe Republican views. They are mainstream Republican views. The Republicans yearn for a return to the idyllic pre-1937 Era.

Speaking for me only

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    Pre-1900. No unions. (5.00 / 1) (#2)
    by observed on Fri May 21, 2010 at 07:35:34 AM EST


    There is a school of thought (none / 0) (#8)
    by BobTinKY on Fri May 21, 2010 at 08:52:59 AM EST
    that says unions and the NLRB were established so owners could better control the actions of labor, which in the late 1800s and early 1900s frequently resorted to wildcat strikes and work stoppages.  These less organized labor movements did lead to many improvements for workers.

    Parent
    I wonder what "school of thought" (5.00 / 1) (#46)
    by christinep on Fri May 21, 2010 at 01:03:28 PM EST
    that would be? Or what conspiracy theory? Or what anti-union group sponsored such a theory? I suggest some might want to look at the economic facts of where the working men (and children) were without unionization. Perhaps, some might want to review and analyze those company towns (mining, lunbering, and other communities) and the servitude scrip situations that existed in those late and early 20th century towns. And, here in Colorado, we always have the massacre of women and children at Ludlow in 1913 in response to attempts by hungry workders to unionize (that was when the governor called out the guard that winter to kill unarmed people per the request of CF&I.) In my mind, the problems that unions faced were that--at their strongest--they helped ensure adequate wages and rising living conditions as a real middle class developed into the 50s and 60s. Insofar as theories go, one theory is that the middle class beneficiaries of that dialectic forgot the past and, as we humans often do, took the somewhat comfortable working conditions for granted; everyone started to bow to the "entrepreneur" in the late 80s and 90s while the stock markets continued on the rise and union membership fell; gradually, companies held more power as to pensions, layoffs, wages without the concomitant negotiation power of the unions; and, we now see a larger wage and wealth gap between the haves & have-nots than previously recorded. Yep, it is interesting to trace working conditions and benefits with the relative strength of unions in the past century or so.

    Parent
    It's called "repressive tolerance" (none / 0) (#64)
    by gyrfalcon on Fri May 21, 2010 at 11:32:15 PM EST
    and it's why some groups on the left refuse ever to admit victory or improving conditions in anything.

    You can usually quite easily defuse social unrest by giving just a little but without actually structurally changing the basic conditions.  In some ways, the New Deal was a perfect example of "repressive tolerance." And it worked.  The organized left in this country completely disintegrated. (That wasn't the only reason it did, but it was a big one.)  The so-called health care reform recently passed is an even more blatant, although vastly clumisier, example.  We'll see whether or not it works.

    Parent

    I seem to recall (none / 0) (#70)
    by christinep on Sat May 22, 2010 at 01:35:24 PM EST
    from college days way back that latter day Marxists were not too fond of unions, in general, for that very reason. What a fix...when a philosophy initially grounded in bettering the lot of humankind ultimately requires a worsening of the lot in order to justify the purity of the philosophy. I take your point.

    Parent
    The not-fond-of-unions (none / 0) (#71)
    by jondee on Sat May 22, 2010 at 02:04:28 PM EST
    thing also had to do with the sordid history of union leadership co-option by management. According to businesses' cost-benefit analysis, it was cheaper for them to pay off union leaders, and even allow the occasional STAGED strike, than to wage full scale open warfare on unions -- which through the law of equal and opposite reaction, would only strengthen organized resistance.

    Taft-Hartley's passage in the late forties also was a major death knell for the power of organized labor in this country. Almost to the point of making the idea behind organized labor meaningless.

    Parent

    At the macro level (none / 0) (#72)
    by christinep on Sat May 22, 2010 at 05:45:59 PM EST
    jondee, your analysis has a lot going for it. Consider my responses about unions based in my own life lived and in the stories of family and friends around me. Sure, there have always been sweetheart unions, as you reference. And, in any institution--political, business, unions, regligious, academic, journalism, you name it--there will be some degree of corruption when the stakes are high. My dad once said (as have many others): One can philosophize when your stomach is full and there is a roof over your head. To me, then, it is about balancing. I look at that same history of unions (just like I look at bloc voting and organization dynamics): In theory and in real life, the common man/woman's day-to-day life have been demonstrably, significantly improved by unionization. (BTW, my background: Almost all of my father's generation were union members and staunch supporters all their lives. The coal fields of PA tell the tale of the thousands of lives per year lost before unions, e.g. And, in terms of safety as well as other areas, the same is the verifiable case in a number of other hard manufacturing industries. From my end, I helped form an AFGE branch in the government employ. Later, I moved to management; and, in management circles argued always for the systemic good of recognizing and respecting unions.) So much depends on where you sit.

    Parent
    Chris (none / 0) (#73)
    by jondee on Sat May 22, 2010 at 07:20:50 PM EST
    It sounds to me like you have a very healthy handle on the complexities involved in all this. Probably acquired as much through long exposure to the seasoned warriors in your family line as through study and reflection.

    Speaking of Pennsylvania, I was just revisiting the history of the Molly McGuires era in Penn recently and that whole blast furnace of conflict and struggle, that in many ways midwifed the beginning of the way forward to so many of the good things American workers are now in danger of losing.

    Parent

    Thank you very much, jondee (none / 0) (#74)
    by christinep on Sat May 22, 2010 at 10:20:30 PM EST
    I appreciate your words and reflections here. The Molly McGuires and prototypes once stood about an hour from my hometown. So much struggle then and later; I hope it has not been for naught. In recent days, the rot of the bloated corporate lifestyle with their grotesquely overpaid executives--when contrasted so vividly with regular workers, with real workers and the daily fear of job cutbacks or loss--may well impel us on our way forward. And: The cousins & myself will recall your term "seasoned warriors"...a wonderful and fitting description. Again, thanks.


    Parent
    My pleasure (none / 0) (#75)
    by jondee on Sat May 22, 2010 at 10:43:19 PM EST
    and dont let the bastards get you down.

    Parent
    That makes alotta sense... (none / 0) (#9)
    by kdog on Fri May 21, 2010 at 08:56:00 AM EST
    Emma Goldman was the most feared woman in America...and look at labor today after 60 years of "organization".

    Parent
    I don't know if it is a purposeful (none / 0) (#12)
    by BobTinKY on Fri May 21, 2010 at 09:17:38 AM EST
    conspircacy or just how things work, or perhaps designed to work.  Successful movements seem to be always co-opted by the establishment either to direct profits to favored parties or better control the movement/message, or maybe both.

    Parent
    Just how it works... (none / 0) (#16)
    by kdog on Fri May 21, 2010 at 09:36:11 AM EST
    sounds about right...the bigger something gets, the more corrupt it gets, the more bueracracy gets in the way, etc.

    Parent
    Kagan's college thesis (none / 0) (#63)
    by gyrfalcon on Fri May 21, 2010 at 11:27:33 PM EST
    much maligned by the right wing, goes into exactly this in examining why the socialist movement in NYC in the 20s so completely fell apart.  It's less a function of bureaucracy per se as it is of increasingly ham-handed attempts by leadership to hang onto power at all costs.

    I'm not sure she got the whole story on the '20s right, btw, but the thesis is an interesting, if depressing, blow-by-blow of how the organized movement fell apart through infighting.

    Parent

    Puts me in mind (none / 0) (#37)
    by jondee on Fri May 21, 2010 at 11:36:19 AM EST
    of those stories about the CIA Grand Wurlitzer sponsoring young "idealists" like Gloria Steinem in the sixties, in order to promote acceptable liberal alternatives to full out revolutionary activity..

    There's always been a (somewhat) rational, liberal wing of the ruling class that's always known that you cant turn yourself into a predatory embodiment of the very thing Marx talked about without creating an equal an opposite reaction in society.

    Those people seem to be an endangered species now though.

       

    Parent

    Dems are making a mistake (5.00 / 2) (#4)
    by Democratic Cat on Fri May 21, 2010 at 07:39:53 AM EST
    In addition to being incorrect in portraying Paul as an extremist, the Dems are playing this wrong politically IMO. They should be making exactly the point you make here, that this is what mainstream Republicans believe.

    And they should welcome a debate on this.  Rather than trying to defeat this one Senatorial candidate by painting him as out-of-the-mainstream, they should try to defeat or at least dent the Republican view of the role of the Federal Government. Why do Dems always think small?

    The problem, IMO, is that (5.00 / 1) (#7)
    by dk on Fri May 21, 2010 at 08:43:43 AM EST
    the Democratic leadership doesn't really believe in combatting libertarian orthodoxy when it comes to regulation of many of the largest sectors of private industry.  That would mean they would have to commit to tough controls and regulations on, for example, the health insurance industry, the financial industry, etc.  And as we have seen, they don't believe in such controls.  It would go against the "uniquely American" system we have now.

    Parent
    Yes, and it does not square with (5.00 / 3) (#19)
    by KeysDan on Fri May 21, 2010 at 09:50:24 AM EST
    bipartisanship and looking for and adopting all those good Republican ideas.

    Parent
    Letting business alone has done more harm (5.00 / 2) (#25)
    by mmc9431 on Fri May 21, 2010 at 10:28:50 AM EST
    We've allowed Republicans to weaken every agency in the government in their attempt to free business from any serious form of regulation or accountability.

    What will it take to wake Americans up again? I would have thought that after Enron, WorldCom, the banking industry collapse, poisoned imported foods, Katrina and now the Gulf spill (all within a 10 yr span) that people would realize that industry needs more government oversight, not less.

    Parent

    But it's not just the Republicans (5.00 / 5) (#29)
    by dk on Fri May 21, 2010 at 10:48:45 AM EST
    This year saw the biggest boost and infusion of capital into the for-profit healthcare industry than we've seen in quite a long time, and it was all brought to us by the Democratic leadership.

    I hope Americans wake up to all of this too, but if it happens it will involve fighting against both the Republicans and the Democrats.

    Parent

    Agree (none / 0) (#32)
    by mmc9431 on Fri May 21, 2010 at 10:56:16 AM EST
    That's why primaries are so important. We need to run the phoney Dem's out. Make the people chose between a Rand Paul and a real Democrat.

    As disappointed as I've been with the Democratic party, I'm not ready to lay down and hand the reins of power over to a Sarah Palin or Rand Paul. I have 4 more years before I can run to Costa Rico!

    Parent

    hey, keep Costa Rica (none / 0) (#33)
    by jeffinalabama on Fri May 21, 2010 at 10:58:11 AM EST
    a secret... don't want it too crowded!

    Parent
    Ok (none / 0) (#34)
    by mmc9431 on Fri May 21, 2010 at 11:02:57 AM EST
    I just hope they don't have any right wing whackos there that throw me in jail for speaking English!

    Parent
    The people don't know... (none / 0) (#30)
    by kdog on Fri May 21, 2010 at 10:49:35 AM EST
    who to trust...is the regulation doing little more than legalizing "acceptable" levels of pollution and grift?  Can our government, as assembled, do anything besides crack down on the little guy with rules and regs with a wink and a nod to the 4th branch of government, the corporate paymaster branch, that this doesn't apply to them so no worries?

    iow, the peoples heads are spinning...it has become impossible to determine where big business ends and government begins.

    Parent

    Two peas in a pod (5.00 / 5) (#10)
    by mmc9431 on Fri May 21, 2010 at 08:56:45 AM EST
    The only difference between Rand Paul and the mainstream Republican party, is that Paul says what the party actually believes.

    Mainstream Republicans have relied on stealth messages and lightly veiled bigotry for years. Reagan was a master of the art.

    It's only now that the party feels threatened that the gloves are coming off.

    I thought there was some stealth element (5.00 / 1) (#21)
    by Jack E Lope on Fri May 21, 2010 at 10:02:54 AM EST
    ...in the little bit of that interview that I heard.  Ru, um, Rand Paul was saying that he's against any sort of racial discrimination, which in Republican-dog-whistle means "affirmative action".

    But maybe I'm reading too much into it.

    I did like how uncomfortable he sounded...as if he was supressing what he really wanted to say.

    Parent

    Roberts said essentially ... (none / 0) (#45)
    by Robot Porter on Fri May 21, 2010 at 12:54:49 PM EST
    the same thing in his confirmation hearing.  

    Parent
    I think you are (none / 0) (#65)
    by gyrfalcon on Fri May 21, 2010 at 11:38:13 PM EST
    reading too much, or perhaps just the wrong things, into what he said.

    What he expressed is straight-line Libertarian ideology.  Libertarians generally utterly abhor discrimination, but they believe it can and should only be countered by the free market-- ie, by the negative economic effects of discrimination.

    Far as I can tell, Paul is utterly genuine as a down-the-line Ayn Rand Libertarian.  And in being so, he exposes the incredibly distasteful consequences of following that path.

    Parent

    Not so much mainstream GOP as core GOP (5.00 / 3) (#11)
    by BobTinKY on Fri May 21, 2010 at 09:11:19 AM EST
    pre-1937 the rules were very much written by, interpreted by and for the benefit of rich, propertied white men.   Those men are nowhere near a majority  so the GOP has to continually test market wedge issues to attract the less thoughtful (more dumb) among us to get  50% or greater vote margins.  That is why GOP elected officials say the most outrageous things, it is all test marketing and when something seems to stick they run with it, whatever it is so long as it does not threaten the rights and privileges of the propertied class.

    Rand's particular statement on Civil Rights was just Rand being Rand, and though in line with core GOP beliefs, there two reasons why the GOP cannot abide Rand's gaffe.  First, the statement is not particularly helpful to the GOP's ongoing effort to identify and press GOP voter enhancing wedge issues.  Second, the position does not do anything to solidify or enhance the wealth of the wealthiest among us.  Form the GOP's view, it was and is pointless.

    So Rand's nomination and his idiotic views are likely good for Democrats politically, but given that today's Democratic Party has become home for yesterday's Rockefeller Republicans (like Presidents Obama and Clinton) of questionable significance for everyday folks.  

    It's also somewhat (5.00 / 0) (#42)
    by jondee on Fri May 21, 2010 at 12:20:31 PM EST
    of mini-p.r disaster, in that, to many in the country the civil rights era = MLK and the more-or-less official mainstream GOP position NOW is that MLK -- formally red baited and harassed by  Right -- was an American saint; (particularly now that he's been safely dead for 40 + years.)

    Parent
    In the 50s and 60s (none / 0) (#53)
    by Natal on Fri May 21, 2010 at 03:16:44 PM EST
    there was a dramatic shift in public consciousness against segregation.  Rand Paul seems to be arguing that the Civil Rights Act did not totally drive desegregation but it was the shift of the country's consciousness which started in the 50s and culminated in mid 60s. In other words, desegregation was occurring without the federal intervention with its legislation. The legislation merely bookmarked what was clearly becoming inevitable.

    Parent
    On what planet? (5.00 / 1) (#56)
    by mmc9431 on Fri May 21, 2010 at 04:01:42 PM EST
    Is this part of the revisionary history that the Texas school board is endorsing?


    Parent
    "Seems to be arguing" (none / 0) (#57)
    by jondee on Fri May 21, 2010 at 04:09:32 PM EST
    "seems" to someone eager to put the best possible spin on what Paul said..

    Very Buckleyesque: Public opinion will eventually turn in the direction of decency and justice without any intervention from people who want to make rich people pay taxes..

    Parent

    Yes, and it's wishful thinking (none / 0) (#66)
    by gyrfalcon on Fri May 21, 2010 at 11:41:04 PM EST
    which is what Libertarian ideologues like Rand Paul and his daddy have to rely on since no society has ever been willing, thank God, to base itself on Libertarian insanity-- er, sorry, ideology.

    Parent
    Rand Paul: (5.00 / 1) (#13)
    by Capt Howdy on Fri May 21, 2010 at 09:19:10 AM EST
    Obama's criticism of BP 'un-American'

    sounding more main stream every day.


    Un-American to criticize (5.00 / 4) (#23)
    by KeysDan on Fri May 21, 2010 at 10:22:58 AM EST
    a foreign corporation whose negligence is responsible for an American (and global) catastrophe?   Rand Paul's candid expression of this rather quirky view is either a deliberate strategy or a not- ready- for- prime time moment (of which he seems to have many).  However,  he does have a lot of company in his extremist position, such as the blow was just a freak accident, never to be repeated; spills never happen; the spill is unfortunate, but we need BP to get us out of it; we need drill baby drill programs to get off "foreign oil" (not oil, but foreign oil, as if oil is not fungible on the world markets); and, of course, God, as in an act of, or, as punishment for..... (fill in the blank).  And, "mainstream", but not necessarily just Republicans.

    Parent
    Libertarianism and Environmentalism (none / 0) (#50)
    by christinep on Fri May 21, 2010 at 02:07:20 PM EST
    I would prefer dealing with the previous in-the-spotlight-Republican group, the conservative Evangelicals. Actually, from an environmental standpoint, at least some of that group in recent years have started to focus on the environment as God's creation and their responsibility to conserve it (thereby giving the real governing Republicans and the Chamber of Commerce a conniption fit.) Seriously, Paul's extra strong version of capitalism run amok and private property rights run rampant may be an eye-opener to a number of people. It is obviously true that the categorical permitting approach to the Gulf region got out of control and the gutting of enforcement bequeathed from the Bush years is ugly in its reality, but...yoiks, think of a Senate composed of Ayn Rand Pauls. I say this not to play the old "he's worse than our guy" game. At least, Interior Secretary Salazar has moved relatively rapidly (in government organization terms) to reorganize MMS, and that is an important piece to future permitting and enforcement change (separating permitting and royalties from inspection and enforcement is huge.) What a contrast in a Paulian "government."


    Parent
    Largely agree with you (none / 0) (#67)
    by gyrfalcon on Fri May 21, 2010 at 11:47:01 PM EST
    except about Salazar.  The disaster-in-waiting of the Bush-staffed MMS was known before Salazar took over. I'm still waiting for an explanation of why he didn't take that on from day one on the job.

    Folks need to read some Ayn Rand, imho, to get where the Pauls and their ilk are coming from.  I read her books as just exciting novels as a pre-teen, and was gob-smacked when i found out several years later that anybody actually took them seriously.  To me (raised as a "red diaper baby"), the philosophy in them was just another kind of science fiction.  I couldn't believe anybody could take it seriously as an ideology.

    Silly me.


    Parent

    It's un-american ... (5.00 / 2) (#44)
    by Robot Porter on Fri May 21, 2010 at 12:51:57 PM EST
    to criticize British Petroleum.

    Wait ... what!?!

    Parent

    A criticism of BP (none / 0) (#47)
    by jondee on Fri May 21, 2010 at 01:05:26 PM EST
    is a criticism of "business", and as St Ron's idol Coolidge famously said, "the business of America is business."

    Paul is just following the squeezed-thread-thin thread of logic to it's loony conclusion.

    Parent

    I understood... (5.00 / 1) (#48)
    by Robot Porter on Fri May 21, 2010 at 01:18:32 PM EST
    I just find it funny.

    "What's good for British Petroleum is good for America."

    Parent

    He calls the shots (5.00 / 1) (#49)
    by jondee on Fri May 21, 2010 at 01:26:05 PM EST
    and he intends to keep it thata' way..what's good for General Bullmoose, is good for the USA!

         Lil Abner

    Parent

    No, to be fair (none / 0) (#69)
    by gyrfalcon on Fri May 21, 2010 at 11:52:47 PM EST
    what got him upset was some weird rhetoric about "bootheel on the throat of BP."  That certainly sounds most un-Obama-like, and I haven't had time to look into whether he actually said that or not, but that phrase is what set Paul off, not just "criticism" of BP.

    Parent
    Wouldn't that also make (none / 0) (#24)
    by Jack E Lope on Fri May 21, 2010 at 10:27:57 AM EST
    Palin's criticism of BP 'un-American'?

    Can we let Sarah and Rand have a debate, and see who sucks up to Corporations the most?

    Parent

    eeee (5.00 / 1) (#26)
    by Capt Howdy on Fri May 21, 2010 at 10:30:36 AM EST
    my brain just glazed over at the very thought.

    Parent
    Really (none / 0) (#68)
    by gyrfalcon on Fri May 21, 2010 at 11:50:12 PM EST
    The rational side of Sarah Palin (and there is one) brands the oil companies as utterly untrustworthy liars who have to be intrusively monitored by government (per a lengthy Fox interview the other day), but the irrational side says there shouldn't be so much as a moment's pause in offshore drilling anyway.  The mind reels...

    Parent
    I know, I read that and pffffffffffffff. (none / 0) (#41)
    by BarnBabe on Fri May 21, 2010 at 12:13:04 PM EST
    The president, Paul told ABC, is being too tough on BP - the oil giant that controls the well that has been leaking thousands of barrels of oil a day in the Gulf since late last month.

    This is what 'An eye doctor and political novice' would bring to politics. This is what any Rush or Sarah follower and believer could bring to politics. I have some interesting ideas and plans, but I hate to stand up in front of people. Hate public speaking. And, personally, I would not trust me to be the leader of the free world. This guy should not be leader of the dog catchers. He might separate the different colored poodles.

    I do believe that people like this, with all serious intentions behind them, (I believe that they really believe what BS they are saying.)are the scariest bunch of people out there in the USA. Maybe having this candidate is a way to make Dems pour a lot of Ca$h into KY.  

    Parent

    Paul's "unamerican" statement was (none / 0) (#54)
    by ZtoA on Fri May 21, 2010 at 03:33:17 PM EST
    absolutely the stupidest thing to say. And it will come back and bite him in the butt. Good.

    Parent
    After the SC's decision in (5.00 / 1) (#15)
    by Anne on Fri May 21, 2010 at 09:23:29 AM EST
    US v. Comstock, I followed a link in something I was reading (can't remember where) to a FindLAw article by Michael Dorf (about whom I know nothing, other than what is on his FindLaw bio), titled, The Supreme Court's Decision About Sexually Dangerous Federal Prisoners: "Could It Hold the Key to the Constitutionality of the Individual Mandate to Buy Health Insurance?

    Some excerpts:

    In a column last year, I argued that an individual mandate to purchase health insurance-which was then under consideration, and now has been enacted-should survive a constitutional challenge because it falls within either Congress's power to tax or its power to regulate interstate commerce. The Comstock decision further confirms that the Court would find the individual mandate valid under the Commerce power. To see why, it is worth comparing and contrasting Comstock with two other Commerce Clause decisions: the 1995 decision in United States v. Lopez and the 2005 decision in Gonzales v. Raich.

    [snip]

    Applying that principle [discussed in the article's preceding paragraphs] to the individual mandate to purchase health insurance is straightforward. The federal law forbids health insurers from refusing or dropping coverage based on pre-existing conditions. That prohibition is undoubtedly a regulation of "economic activity" as required by Lopez. But the prohibition by itself would create an incentive for uninsured healthy people to game the system: They could take their chances without health insurance unless and until they got sick; at that point, they could buy health insurance without fear of being turned down for a pre-existing condition; and as a result, the system would not function, because a pool composed exclusively of sick people would not produce sufficient premiums to cover the cost of their medical treatment. Thus, Congress had a reasonable basis for including the individual mandate in the health care legislation as a means of effectuating the prohibition on refusing or dropping coverage for pre-existing conditions.

    Notwithstanding the foregoing analysis, it is possible that five Justices could vote to invalidate the individual mandate to purchase health insurance. In my view, doing so would be very difficult to square with the rulings in Raich and Comstock, but predicting how the Supreme Court will rule on any issue is an inexact science at best.

    Randy Barnett at the Volokh Conspiracy had this to say:

    With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is "necessary and proper" to execute its power under the Commerce Clause. Moreover, the argument for "necessity" is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court's normal deferential approach, finding "necessity" won't be hard.

    The problem with the mandate is whether it is a "proper" means to achieve a constitutional end. The Court has previously held that mandating state legislatures (in New York v. U.S.) and executive officials (in Printz v. U.S.) is an "improper" commandeering of states and therefore violates the Tenth Amendment's reservation of powers "to the states." The challenges to the individual mandate raise the issue of whether mandating all persons to enter into a contract with a private company is "improper" commandeering of the people and therefore violates the Tenth Amendment's reservation of powers "to the people." Because such a commandeering has never been previously been attempted, the Court will have to address whether it is an "appropriate" (McCulloch) means to achieving an enumerated end, however "necessary" it may be. Deciding this question return the Court to the scope of the Commerce Clause.

    In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an "improper" means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power. The majority held it was-all the enumerated powers for which the original criminal incarceration was the means-while the dissent disagreed.

    Would love to get the legal experts' opinions on the nexus between Constock and the individual mandate, but while it seems like there are some good questions for Kagan to be found within the scope of the case she argued and which is part of the pubic record; I don't expect she will extend her remarks to a discussion of Comstock's implications for the individual mandate.

    As an aside, I don't think it is just Republicans who would like to see the individual mandate litigated, but I trust the Republicans will express their objections in all the best and brightest ways we have come to expect from them.

    Rand Paul's views are not fringe, (5.00 / 2) (#27)
    by KeysDan on Fri May 21, 2010 at 10:41:45 AM EST
    he is expressing the Republican voice, albeit their sotto voce. The Texas textbook revisions are a case in point: to advance "conservative principles" history standards are to add language requiring high school students of the civil rights movement to "describe the role of individuals such as governors George Wallace, Orval Faubus, and Lester Maddox and other groups..., that sought to maintain the status quo."   When we hear cries "that we want our country back", I think they really mean, we want our country club back!

    Indeed (none / 0) (#1)
    by andgarden on Fri May 21, 2010 at 07:30:46 AM EST
    You read my mind. This is exactly what I was thinking of when I heard Rand's comments.

    It's all related, of course.

    Did Objectivist Paul ever directly (none / 0) (#3)
    by observed on Fri May 21, 2010 at 07:37:05 AM EST
    answer the question about the Woolworth's counter? I saw him furiously weasel with Blitzer.
    It's perfectly clear that he actually thinks Woolworth's was in its rights, but has he said so, one way or the other?

    Parent
    He did not answer the question. (5.00 / 1) (#51)
    by christinep on Fri May 21, 2010 at 02:11:33 PM EST
    And, should he eventually meander into an answer, Paul has already signalled/dog whistled what he meant in Kentucky politics.

    Parent
    Many would also reprise the Spirit of 1878 (none / 0) (#5)
    by szielinski on Fri May 21, 2010 at 07:51:54 AM EST
    That's the year the government replaced its Civil War fiat currency with a metal based currency.

    Mainstream GOP'er... (none / 0) (#6)
    by kdog on Fri May 21, 2010 at 08:12:00 AM EST
    with a dash of tea-party...that's what I see.  After Obama I ain't even close to buying stealth candidates for justice anymore:)

    Paul is a real head-scratcher allright, he'll justify away key libertarian beliefs on the issues of drug and immigration law, pressing issues of the day where a dose of ibertarian is needed...but draw an ideological line over the Civil Rights Act?  Any political ideology taken to an extreme is disasterous...some libertarians sure pick a funny place to draw their lines.

    I think D-Cat is right about how to combat this piker...don't call him a nut and write him off, cuz half the country or more thinks D's and Standard R's are nuts...don't call the issues he brings up "long settled" and brush him off...engage and maybe win some converts with superior ideas.  The question is...are there superior ideas being sold, or just 2 1/2 brands of crazy?

    Question: (none / 0) (#14)
    by azhealer on Fri May 21, 2010 at 09:21:45 AM EST
    Is there any power the federal government should not have?

    1. marijuana -- illegal, but people in CA and elsewhere fighting to overturn

    2. DOMA --- being fought in states and by groups to overturn

    3. physician assisted suicide --- illegal under federal law, but Oregon passed a law which was upheld by SCOTUS.

    Rand abhors racism --- it is a question of whether and the extent to which federal government should be able to control what goes on in private --- like Texas sodomy case?!

    How about abortion?  We believe in a right to privacy between patient/ doctor... SCOTUS decisions would support government has limits to how much it can interfere with those private health decisions...

    Can there be any rational political debate?  Or only ad hominem attacks?

    pretty simple (5.00 / 2) (#17)
    by CST on Fri May 21, 2010 at 09:45:35 AM EST
    the items on your list regard individual choices and individual freedoms, the only people being affected by those things are the ones being restricted from them.

    Civil rights law is about preventing people from doing harm unto others.

    Parent

    It's an interesting thing, isn't it, (5.00 / 4) (#28)
    by Anne on Fri May 21, 2010 at 10:42:21 AM EST
    that people like Rand Paul are happy to get government out of everything except the most personal and private aspects of people's lives, but want to have a steel-cage death match over things like regulating business and imposing taxes?  They are happy to take as much reproductive choice as possible away from women, but would lay down and die before they would give up one millimeter of their rights with respect to guns.  They would love to impose their views on marriage and sexuality on everyone, plaster public spaces and government offices with their religious symbols, but ask them to pay another penny or two in taxes, and their heads explode.

    There is no such thing with these people as "the common good;" that's in the GOP code book as a synonym for "socialism," which we all know is a next-door neighbor to that other "-ism," and God knows, we can't go there.  Other people are always the ones who are supposed to pay for schools and roads and public transportation, and police and fire.  Other people are supposed to pay for all the agencies and departments tasked with protecting consumers from bad drugs, bad food, defective products, and so on.  

    That's all "hands-off" territory - but they're happy to listen to your private conversations, hack into your computer, put cameras on every street corner, equip almost everything with GPS so there is almost never any time when we can't be tracked, and poke and prod and pry into the most intimate details of your personal life.  This is what government is for to these people.

    Being opposed to that world view used to be a given with Democrats.  Fighting to use government for the common good, standing up for those who lack money and power, used to be a given.  Standing up for the Constitution and the Bill of Rights, safeguarding legal precedents, protecting privacy - it used to be a given.

    Now, thanks to the Rand Pauls, who have gone so far to the right as to be merely clinging to the edge of reason, we have a "center" that now looks like what was solidly right not so many years ago, and part of the problem is that Barack Obama is very comfortable there.  Which is why he can't fully support reproductive rights, has continued many of the worst of the Bush policies, and has his sights set on Social Security and Medicare.  It's why he's decided that conducting the government's business in private and behind closed doors is so much easier than being the transparent and open leader he claimed he wanted to be.  It's why we still have that crappy FISA law, why we renewed the Patriot Act, and indefinite detention is a feature, not a bug, of the Obama administration.  

    How do we move the "center" to the left?  If the current Democratic leadership won't do it, then two things have to happen: candidates like Rand Paul have to be soundly and unequivocally rejected and defeated, and Democrats-who-aren't-Democrats also need to be shown the door.


    Parent

    yea (none / 0) (#31)
    by CST on Fri May 21, 2010 at 10:55:09 AM EST
    I guess I've really never seen that democratic party on the national stage.

    One of my parent's commie friends asked me the other day "why would any young person ever be a democrat?" - this was after the health care debacle.

    All I had to answer with was "have you seen the other guys?"  They really are bat$hit crazy.  And it's not just about the lesser of two evils, it's we really really gotta stop this crazy evil, and if all we have to do that is not so evil, than so be it.

    It's frustrating, but there it is.  It's especially so because I really feel like if younger people made their voices heard more we could change the tenor of the debate somewhat since there are so many of us.  But young people today don't vote enough, and don't protest, and don't show up at town hall meetings and mostly are just trying to get by.

    Parent

    There are two things that I think (5.00 / 0) (#38)
    by Anne on Fri May 21, 2010 at 11:36:36 AM EST
    are a must: changing the standard from "the other guys are worse," and going to 100% publicly funded elections.

    The second item is probably the most important, and the least likely to happen; as much power as has been vested in corporate America, there is no way they will sit on the sidelines and watch while the Congress essentially sends them packing.  For that matter, there are too many people elected to Congress who probably could not get elected with only public money, so they're not going to allow it to happen.  

    The first item - "the other guys are worse" - should, at a minimum, be flipped to "we are the good guys," but the problem is that we would actually have to be, you know, good.  I mean, if you think of the two parties as a Venn Diagram, where they intersect, and have common positions, is probably greater than it has ever been.  We have to (1) take some of those things out of the "common area" altogether, and then (2) advance those distinctly Democratic positions, with success, and then run on them.  It will be far easier for people to experience and see for themselves that Dems are the good guys when we have less in common with the GOP than we do now.

    One function of leadership is to lead people to the positions and the places that one believes are certainly better, if not best.  When the places we are being led do not look markedly different than where we were with "the other guys," if the scenery is a little better but the accommodations still suck, and the only differences are of degree and not dogma, is it any wonder that more and more people are saying, "what's the point?"

    We have to start making that journey to better places now, instead of circling the block and being told we're actually making progress.


    Parent

    Amen sister... (none / 0) (#35)
    by kdog on Fri May 21, 2010 at 11:06:15 AM EST
    that Democratic brand Anne is on about is only history book stuff to our generation...we've never seen it.

    As for young people not speaking up in the debate...then we're back to the sorry shape of the debate today, there really is no debate...it's all talking points and gotcha and never admit the other guy might have a point...never revisit an issue.  Politics as sport.

    Parent

    Disconnect (none / 0) (#40)
    by mmc9431 on Fri May 21, 2010 at 11:54:22 AM EST
    I think the elimination of the draft took the youth out of the political equation. The issues being debated today are abstract and futuristic to them.

    The draft was now and everyone had an interest. Gay rights, immigration, social morals are things that affect "other" people.

    Today's youth has been brought up on electronics. Surveillence cameras, metal detectors, drug and gun searches at school are all just another fact of life to them. They don't know what civil liberties really mean.

    If my privacy had been invaded (like kids are now) I would have screamed to the rafters. I never believed in the premise that everyone was guilty until proven innocent.

    Parent

    Yep... (none / 0) (#43)
    by kdog on Fri May 21, 2010 at 12:43:53 PM EST
    the police state generation...it's all we know.

    Television plays a role here somewhere too...glued to the tube since birth, the "Idiocracy" phenomenon.  

    Parent

    let me put it this way (none / 0) (#52)
    by CST on Fri May 21, 2010 at 03:09:11 PM EST
    they may affect "other" people.  But most of us are friends with those people.  And honestly, it's not so much that they'll go out shouting and screaming support for it.  It's more that when the other side goes crazy about kicking out the mexicans and how gays are ruining marriage, they just seem completely out of touch and bat$hit crazy.

    Trust me, the social issues are not as abstract to us as you think they are.  But you are right about privacy, in the age of facebook and electronics, we definitely view lack of privacy as a "given".

    Parent

    I see what you're saying, (none / 0) (#36)
    by Dr Molly on Fri May 21, 2010 at 11:24:21 AM EST
    but I don't buy the young people distinction thing. The young people I know are just as deluded about true progressivism vs. what this administration is handing out as the older people I know. And a lot of them are into privatizing social security, against regulation, etc.

    From my point of view, it's mostly older people right now (like your parents' friends) who have the right picture of what government should/could be doing. Maybe because they remember something different, I don't know.

    Parent

    well it's different issues (5.00 / 1) (#39)
    by CST on Fri May 21, 2010 at 11:40:04 AM EST
    I grant you that.

    We have seperate concerns.  And they are much more in line with social liberties.

    The fact of it is we do have our own concerns.  That doesn't make them less valid.

    Because from where I sit, sure there is a group of older people who have the right ideas, just like there are fiscal progressives who are younger - unfortunately neither of those groups is really enough of a majority in either age group.  I see plenty of older people on the wrong side of that one as well.

    But when it comes to social liberties, I feel like we could at least change the tenor of that debate.

    As for government regulation and progressive taxation the problem is a lack of trust in government.  And before you get people on your side for that you have to proove to them that it works.  Unfortunately when it comes to younger people I think GWB did a ton of damage when it comes to trust in government, and I'm not really sure how to get that back.

    Parent

    Rational debate... (none / 0) (#18)
    by kdog on Fri May 21, 2010 at 09:49:18 AM EST
    is hurtin' friend...which is what infuriates me about Rand Paul...we could use a good talk about limits on federal power, states rights, personal liberty...the issues you brought up woulda been a better way to go to get these long overdue discussions on the floor...not questioning the freakin' Civil Rights Act...though technically Maddow brought it up I guess, as a gotcha type moment...and Paul fell for it.

    What I'd love to hear from Paul is how he justifies bending libertarian ideology in regards to drug prohibition, but not bending to battle segregation and discrimination.

    Parent

    is it really (5.00 / 3) (#20)
    by CST on Fri May 21, 2010 at 09:53:03 AM EST
    a "gotcha" if it raises legitimate questions about your true views?

    Frankly, I think she was doing her job.  Getting him to express a real point of view rather than just spewing talking points.

    Parent

    Yeah... (none / 0) (#22)
    by kdog on Fri May 21, 2010 at 10:08:51 AM EST
    I guess you're right...she did help expose the fraud that is Rand Paul, for that I'm grateful...but it might have also killed the debate I think we need...now we can just say he's cracked and there is no problem with expanding federal power, states rights, etc...the fed always knows best.  

    Parent
    Is it really going to make a difference? (none / 0) (#55)
    by jbindc on Fri May 21, 2010 at 03:41:21 PM EST
    How many people who aren't political junkies actually know about Rand Paul and his comments?  How many care?  Just taking a quick look right now at the front pages of all the major news outlets, and only MSNBC has a small mention of it - way down the page under "Politics".  

    This could be a big thing, but my guess is that it won't.

    Pre 1937 (none / 0) (#58)
    by diogenes on Fri May 21, 2010 at 07:39:27 PM EST
    In the good old days, it was the DEMOCRATS in the South who were the racists.

    a lot of Democrats and Republicans (none / 0) (#59)
    by jondee on Fri May 21, 2010 at 07:59:49 PM EST
    in every part of the country that were racist.

    Ah, the good old days..

    Parent

    Southern Democrats were (none / 0) (#60)
    by ZtoA on Fri May 21, 2010 at 08:27:22 PM EST
    poor whites and they were racist since they were in direct competition with poor AAs for jobs etc. Republicans were prejudiced against both demographics and represented the establishment wealthy whites.

    Parent
    Now the establishment types (none / 0) (#62)
    by jondee on Fri May 21, 2010 at 10:44:20 PM EST
    are trying make themselves look good by setting up the same dynamic in Arizona, except this time they're attempting to play off disgruntled and disenfranchised Arizona workers against poor Mexicans.

    Divide and conquer is still the name of the game.

    Parent

    It's mainstream Republican (none / 0) (#61)
    by Militarytracy on Fri May 21, 2010 at 09:23:02 PM EST
    But nobody will get on the tube and carry water for him.  Bunch of dog whistling cowards too, afraid we will recognize their shoes under those sheets!