A little-noticed case decided by the U.S. Supreme Court this term could signal a willingness by conservative justices to accept President Obama's health-care plan as constitutional, according to a University of Chicago law professor.Many challenges to health care reform are based on the 10th Amendment, which provides that powers not granted to the federal government and not prohibited to the states are reserved to the states or the people, but with Kagan's successful use of the Necessary and Proper Clause, it seems that the federal government may have one up on those politicans wasting states' resources and taxpayer dollars, like Florida's very own Bill McCollum.
Aziz Huq told a gathering of lawyers at the Mayer Brown law firm Friday that the U.S. vs. Comstock case should give supporters of the health-care bill hope because seven of the nine justices ruled in this case that the federal government can exercise power not specifically spelled out in the Constitution.
In the Comstock case, argued by Supreme Court nominee Elena Kagan, the Obama administration maintained that the federal government had the right to indefinitely detain sex offenders who had finished serving their sentences.
A North Carolina federal court said none of the federal government's "enumerated powers" in the Constitution covers civil detention of offenders who have finished serving their sentences.
But Kagan argued that Congress' power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" (also known as the "elastic clause") covered it, and seven of the nine justices to varying degrees bought that.
I also want to point out that the some of the Founding Fathers were the ones who put the clause in the constitution, writing about it in the Federalist Papers. Sure there were some critics, but in the end, it made it in the final draft, so it looks like right-wingers are going to need to dig deeper to find a reason why not to love the constitutional powers of the federal government that allow it to implement universal health care - maybe there is a letter from Patrick Henry to some local lodge where he discusses the evils of the Necessary and Proper Clause or maybe Thomas Jefferson wrote on a piece of toilet paper the importance of excluding the clause from the finished version of the constitution, but it still does not erase the fact that it is in there, meaning any right-winger who wants to attack this ruling because of this clause is attacking the constitution itself.