Ollie’s Barbecue!

Thanks to “Happily retired litigator” I was able to retrieve this Commerce Clause case. No question that the result was right – our country was no longer willing to abide racist treatment of our citizens, but using the Commerce Clause to achieve that result was, in my opinion, a bad move. But hey – I’m not a member of the Supremes.

9 Comments

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9 responses to “Ollie’s Barbecue!

  1. Anonymous

    Actually, it was thanks to me, but no big deal.

  2. Retired IB'er

    Sorry, but I am confused on the healthcare issue. You can choose not to purchase insurance: you will just be subject to a fine. Why is that unconstitutional (to fine a citizen if they do not buy healthcare insurance)?

    We fine citizens all the time: if they don’t buy a dog license, if you drive a car without insurance, if drive without a license, etc…

    What am I missing?

  3. Happily Retired Litigator

    IB’er –

    For this analysis let’s put aside a discussion of the odious intrusions into private affairs associated with the activities you mention (owning dogs and owning or driving a car). What distinguishes those fact patterns from Obamacare is that a person is free NOT to engage in those activities, and thereby avoid even the possibility of a fine from Uncle Sam. The Obamacare law, conversely, goes where no law has gone before and imposes either the requirement that you take an action (i.e., buy health insurance) or risk a fine SIMPLY BY BEING ALIVE. In other words, there is no way to avoid the clutches of the statute short of a visit to Dr. Kevorkian.

    No congress and no administration has ever before passed such a statute. Are there 5 votes on the Supreme Court to uphold that profound an expansion of the Commerce Clause? We’ll find out.

  4. Peg

    You do not have to have a dog, you do not have to have a car, you do not have to drive….

    IF you exist; then you are, by law, forced to either purchase health insurance or pay a fine. There is a difference; you have no choice in the latter case whatsoever – and you do in all the former.

  5. '73 Refugee

    Owning a pets and driving are optional? Privileges?

  6. not so anonymous

    IB’r.. You can choose not to own a dog or a car or to hunt or fish. ..

  7. Retired IB'er

    Thank you for all the responses. We could debate the “you don’t have to drive” but I get everyone’s point.

    As I thought further about your responses one example came to mind that is/was compulsory and clearly upheld by the Supreme Court: the military draft. By virtue of being a male in the US, and being sufficiently fit and of a certain age, you are/were required to serve or be imprisoned.

    Happily RL, I think this example fits your comment of requiring a citizen to “take an action” (ie- enlist) by “simply being alive” or face state retribution (in this case jail time instead of a fine). Kevorkian and Canada aside, of course…

    Granted this example is not “commerce” related and there was/is a “conscience objector” exemption and that may make a difference…

  8. IB’er

    Thanks for reminding me that my birthday came up number 1 in the first Viet Nam Draft lottery.

    http://en.wikipedia.org/wiki/Draft_lottery_(1969)

    Fortunately for my state of mind, I tuned in to the national broadcast when the ping-pong balls were on #3.

    When I read the NY Times headlines the next morning, I realized my number was up, rather literally. Although my knee injuries provided a 4-F pass from being a military participant, a speech at Yale by the Sec. of Defense, Robert Strange McNamara (June 9, 1916 – July 6, 2009), persuaded me to resume my Bible study with Jehovah’s witnesses (lowercase at the time.)

    Witnesses of my age at the time went to jail for their Bible-based stand as conscientious objectors, and I was moved by that and many other reasons to become one.

    In 1978 I moved to Greenwich and help complete the construction of the Kingdom Hall at 471 Stanwich Rd. Today, in addition to the original English language Congregation, there is a thriving Spanish Language Congregation since 1996, serving the spiritual necessity of the immigrant population here.

    Let it be noted that St. Mary’s on Greenwich Avenue has had Spanish language services for just as long.