Quote:
Originally Posted by Azure
I think their argument is VERY strong.
Especially considering past interpretations of the 9th amendment.
Nevermind the 10th amendment.
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I'm curious as to how you think the 9th amendment is relevant. It deals with
individual rights (not state rights), and stipulates
only that rights other than those enumerated in the constitution are possible, not what they are. It's literally one line--though I'll agree a very important one... just not especially relevant here. It's very relevant if you're talking about Roe v. Wade, but it does not create rights otherwise not enumerated, it merely accepts that they could exist.
The tenth amendment could be more interesting--but it doesn't seem to me that this legislation meets the test that Scalia specified in striking down Brady--that the states would be required to administer a federally mandated program. I don't think there's a very strong case there, unless the states can somehow argue that the burden of responsibility for this program falls on them.
Note that both of these are completely different from what doglover was saying--which was (though not with much eloquence) that
Article One of the constitution prohibits this bill.... which is utterly risible. I'd say these challenges would be strong-er--but are still desperation moves in the end.
Think of it this way: if the GOP were confident in the legal challenge, they wouldn't have spent the last year fighting the legislation tooth-and-nail. They would just have taken advantage of the opportunity to embarrass the Dems by having their first big bill get struck down by the courts.