November 1, 2009

What will happen when the requirement that people buy health insurance is challenged in court?

There's no chance that it won't be challenged, is there? David Savage digs up a quote from the Clinton era: Requiring people to buy health insurance "would be an unprecedented form of federal action. . . . The government has never required people to buy any good or service as a condition of lawful residence in the United States."

Savage tries to assure us:
Many constitutional-law experts ... predict that even a conservative Supreme Court would uphold a federal requirement that individuals buy health insurance. The justices have said that Congress has wide latitude to regulate economic activity, and health insurance qualifies as that.

Although the mandate to buy insurance may well face a constitutional challenge, "I don't think this is a close call," said Erwin Chemerinsky, dean of the UC Irvine law school. He said that individuals' refusal to buy insurance could have an effect on the market, and the Supreme Court has said that Congress may regulate actions that affect a market.
That, for you nonlawyers, is a discussion of whether Congress has an enumerated power to support the requirement. The power referred to is given by the Commerce Clause. That says absolutely nothing about whether it might violate the constitutional rights of the individual.
As an example, [Chemerinsky] cited the court's decision four years ago that upheld federal restrictions on home-grown marijuana in California even though two women who used medical marijuana at home argued that they did not intend to buy or sell it.

A 6-3 majority said Congress may "regulate activities that substantially affect interstate commerce," and at least in theory, the home-grown marijuana could have been sold in the illegal drug market.
Yes, and the Supreme Court, after resolving the Commerce Clause question, remanded the case to consider whether there was a substantive due process right to use marijuana when it is medically necessary. That claim of right ultimately failed, but the point is that it's not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights. Savage's quoting of Chemerinsky about the commerce power makes it hard for the average reader to see what is an elementary legal matter — one that liberals ordinarily like to spotlight.

Moreover, the Commerce Clause question is quite a bit more complicated than Dean Chemerinsky makes it sound. The marijuana growers were engaging in an activity — making a product for which there is a big, regulated market. In this new case, we'd have Congress regulating people for their inaction. What other case is like that? Congress can "regulate activities that substantially affect interstate commerce"? Where's the activity? It's inactivity! And Supreme Court cases have limited Congress's power where the activity in question is noncommercial. Isn't the failure to buy insurance noncommercial?
A legal challenge to the healthcare mandate may be several years away. To challenge this requirement in court, a taxpayer would have to face a penalty, and the pending legislation does not phase in the penalties until after 2013.
Now, wait. The economics of the entire restructuring of health care is balanced on this individual mandate. I don't know how well-balanced it is, but the economics are shot to hell without the individual mandate, right? What happens if it turns out that the individual mandate is unconstitutional? Does the whole system go down?

Under Section 255 of the bill ("Severability"):
If any provision of this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the application of the provision to any other person or circumstance shall not be affected.
In other words, by its own express terms, if part of the Act is struck down, everything else survives. So if we find out, some day, that the individual mandate to buy insurance is unconstitutional, we're still stuck with all the other parts of the plan. Then what happens?

Has anyone promoting this bill even attempted to calculate the economics with the individual mandate excised? Are we going to have the whole lumbering system cranking into operation for years before we find out whether the the individual mandate is unconstitutional? Or is that the scheme? The individual mandate is too big to fail, and the courts will cave.

81 comments:

TMink said...

"Many constitutional-law experts ... predict that even a conservative Supreme Court would uphold a federal requirement that individuals buy health insurance."

Which many? Many from where? How do these many experts vote? I can find many people who believe that Elvis was an alien.

Trey

Florida said...

Debate this all you like.

I have a message for the Supreme Court and the Congress: Put me in fucking jail.

I will not be forced by you to purchase health insurance.

Period.

And if you try to force me to, you'll reckon with me.

Got that?

G Joubert said...

Relabel it a tax.

jimbino said...

When the lawsuit comes, the best plaintiff will be an expatriate Amerikan who, having lived overseas for 20 years, is for the first time charged a fine for not having insurance for Obamacare that will in any case be unavailable to him.

Pogo said...

The only functioning part of the Constitution remaining is the Commerce Clause, which apparently means they can do whatever the hell they want to.

EDH said...

A mandate on private insurers to offer coverage to those with pre-existing conditions without there being a reciprocal individual mandate to buy coverage is likely to be the end of private health insurance.

This is the cost effect of a "less than perfect" individual mandate that the insurance industry recently highlighted and the Obama administration attacked them for.

Lends credence to those who say that health reform is a Trojan Horse intended to destroy the private market for health insurance and force a single payer system on the country.

Ironically, from a limited government standpoint, once the federal government takes over providing health insurance, obligatory participation (well, on the "premium" funding end) is likely to be upheld as constitutional if premiums are packaged as "taxes."

Insurers' Health Reform Attack Draws Fire
Insurance Industry Releases Health Cost Estimate Which Senate Spokesman Calls a "Hatchet Job"

Insurance companies aren't playing nice any more on the health care overhaul.

The industry put out a report Monday concluding that the Senate's health care legislation would drive up costs to consumers, delivering a dire message at a crucial point in the debate and potentially threatening President Obama's top domestic priority.

The White House and congressional Democrats dismissed the late-in-coming message as a "hatchet job." But it put them and their allies on the defensive a day ahead of a pivotal vote in the Senate Finance Committee on sweeping legislation that aims to achieve Mr. Obama's goals of extending coverage to the uninsured and curtailing spiraling medical costs.

"I really don't think it's worth the paper it's written on," AARP Executive Vice President John Rother said Monday of the insurance industry report. "If anyone believes it, that's a problem."

The study commissioned by America's Health Insurance Plans marked a shift in strategy by the industry, which had been working for months behind the scenes to help shape health care legislation. With the Senate panel set to vote on legislation the industry fears could result in a loss of revenue, the insurers went on the attack, in dramatic fashion.

Late Sunday, AHIP sent reporters and its member companies a new accounting firm study that projects the legislation would add $1,700 a year to the cost of family coverage in 2013, when most of the major provisions in the bill would be in effect.

The White House insists the bill would bring health insurance costs down. However, Paul Ginsburg, a non-partisan analyst at the Center for Studying Health System Change, told CBS News Chief White House Correspondent Chip Reid the insurance companies do have a point.

"If people aren't mandated to buy insurance, then you will get a situation where people stay uninsured until they get sick," Ginsburg told Reid.

Brazilian Jungle Rhythm said...

Yes, and the Supreme Court, after resolving the Commerce Clause question, remanded the case to consider whether there there was a substantive due process right to use marijuana when it is medically necessary. That claim of right ultimately failed, but the point is that it's not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights.

The court accepted the physician's testimony that the patient would die without cannabis and you go on here about avoiding "violating individual rights" as if that were something the court takes seriously - when it clearly refused to do so in the case of Raich. It acknowledged Raich's deteriorating health should she continue to be denied her medicine, to the point of death, as testified to by the physician, and then asserted a more compelling right on behalf of the state to restrict her from having it.

I guess the "right... (to) life" among conscious adults does not qualify as an individual right in your post. Either that or this retelling of Raich included one heck of an oversight.

chuck said...

If the requirement to buy insurance passes court scrutiny, then I suspect many, including myself, will regard the constitutional contract as fundamentally broken and the need to comply with court rulings far less compelling. You can only twist the language of a contract so far before folks become convinced that you are up to no good and have no intention of upholding your end of the bargain.

mcp said...

Doesn't the government currently force us to invest in a very risky, low return retirement plan?

Kirby Olson said...

People who can't afford it will be put into a kind of debtor's prison?

Since the jails are already stuffed full of people (I think they are at double capacity in California), how will they find all the extra beds, and won't this just cost us even more?

Somewhere underneath this colossal brain fart of the Big O is a noble intention, I suppose. but the administering of this colossal thing is going to destroy the country in order to save it?

avwh said...

To pass this half-assed "reform" (it's government control by another name), they have to call the mandatory premiums and all the fees anything but a tax.

To enforce its constitutionality, those fees & premiums may have to BE taxes. There's some kind of irony there.

Dust Bunny Queen said...

Has anyone promoting this bill even attempted to calculate the economics with the individual mandate excised?

If they have, they are discounted or accused of being tools of the evil insurance companies. Obama and the Democrats know that this bill and financial assumptions are fatally flawed and they don't give a shit. They WANT the people to be forced to be subservient to the State. They WANT private insurance to be bankrupted and unavailable. It is not about health care or insurance. They WANT the POWER.

I'm with Florida on this issue. I want to see the first case where they put someone into jail for not buying health insurance. Bring it on.

Balfegor said...

Relabel it a tax.

It is a tax. I haven't read the most recent bills, but the earlier ones were pretty upfront about it being a tax. It's even implemented through amendments to the IRS code, for heaven's sake.

Yes, the President tried to claim on national television that it's totally not a tax, but that's because the President had no clue what was in the bill.

Balfegor said...

If the requirement to buy insurance passes court scrutiny, then I suspect many, including myself, will regard the constitutional contract as fundamentally broken and the need to comply with court rulings far less compelling.

The mandate is just a tax for people who don't get healthcare. It's functionally equivalent to a tax break if you do get healthcare. If people have a serious objection to the way it's framed right now (as a penalty tax), Democrats can just rejigger the tax code to increase everyone's taxes, and then give tax breaks to taxpayers who buy qualifying health insurance.

Kirk Parker said...

"He said that individuals' refusal to buy insurance could have an effect on the market, and the Supreme Court has said that Congress may regulate actions that affect a market."

Exhibit A for why some of us have so much contempt for the court. This hasn't the faintest shred of intellectual credibility as an interpretation of what the Commerce Clause was intended to mean.

As has been discussed elsewhere at great length, though I don't recall seeing it here much: the Court, like the rest of our governing elites, seems to think the entire system is natural and has boundless resilience, that no amount of squandering its own credibility will have any lasting bad effects. I beg to differ--even totalitarian dictatorships fail when a large enough group of the governed withdraw their consent; how much more readily can than happen in a polity like ours? (See your previous post for a small but relevant data point.)

Bill White said...

I have a basic constitutional question. Elections and the judicial branch are our next lines of defense against this. If they fail, what's left short of secession?

campy said...

individuals' refusal to buy insurance could have an effect on the market, and the Supreme Court has said that Congress may regulate actions that affect a market.

So could they likewise require us all to buy a new car every couple of years? (From Government Motors, of course.)

After all, my decision to drive the same car for 10–15 years certainly affects the automobile market.

Lockestep said...

I know it is considered a quaint little meaningless Amendment, and no one pays attention to it any more, but wouldn't there be a case that a mandate violates the 9th?
After all, the Congress does not have a specifically enumerated right to require citizens to buy something as a prerequisite to citizenship.
This differs from a tax with the government not directly levying the required payment, and it differs from license requirements in that there is no regulated activity (driving, for example) involved.
I'd be interested in the opinions of posters a little more familiar with the 9th.

Fred4Pres said...

Depends how the requirement is structured. If it a pre condition of qualifying for other federal assistance I think it might pass muster.

Fred4Pres said...

Alternatively, just stop pretending and make it a tax.

Brazilian Jungle Rhythm said...

Blah blah blah. Joubert's comment is the only one that matters. The only question is if it would be politically feasible by then.

In a perfect world it shouldn't have been in there but then again, why wouldn't the same argument apply to Massachussetts' bill? Just because it was enacted at the level of the state? I thought we were talking about some hypothetical right applicable to any citizen here.

The requirement's presence probably makes for good politics. It's over-reach, but a way of helping to keep your frenzied opposition that much busier, over-worked and discombobulated. Have fun with it and don't forget to keep fighting those other demons too!

PatCA said...

But the Constitution is a "living" document!

Well, except for the Second Amendment. We must construe that literally and narrowly.

Brazilian Jungle Rhythm said...
This comment has been removed by the author.
Brazilian Jungle Rhythm said...

Any such mandate is a clear philosophical/ideological loss for the Democrats. The argument is (or should be, I thought) that rates of uninsurance are high because of lack of affordability. If they can't make health care sufficiently affordable to make coverage nearly universal (with the help of subsidies similar in nature to those which exist today and other less controversial measures), then they have effectively ceded a chicken-and-the-egg argument. It's only proper that it stirs the red-meat baiters. At least you have a real issue this time.

No wonder the post seemed strange, paradoxical and overly abstruse. It reflected the nature of the underlying, non-legal questions at stake.

ricpic said...

Somewhere underneath this colossal brain fart of the Big O is a noble intention, I suppose.

Don't acquiesce in the obscene myth that there is anything, anything at all noble about the Left's lust for total power over you.

Ann Althouse said...

"The court accepted the physician's testimony that the patient would die without cannabis and you go on here about avoiding "violating individual rights" as if that were something the court takes seriously - when it clearly refused to do so in the case of Raich. It acknowledged Raich's deteriorating health should she continue to be denied her medicine, to the point of death, as testified to by the physician, and then asserted a more compelling right on behalf of the state to restrict her from having it. I guess the "right... (to) life" among conscious adults does not qualify as an individual right in your post. Either that or this retelling of Raich included one heck of an oversight."

The right to use a controlled substance which was styled as a privacy right, like the right in Lawrence v. Texas, was rejected by the lower court. The US Supreme Court didn't reach the question. By the way, the unborn are also seen as lacking a constitutional right to life.

Anyway, my point isn't about the scope of the right at stake in Raich and whether courts were too stingy about it, but simply that rights must also not be violated, and Savage's article makes it seem as though all that is needed is for Congress to have an enumerated power. It is elementary constitutional law to say that that is not enough, and if anyone wants to disagree with me about that, they are just being ignorant.

If you want to argue that there is no right to be free from the requirement to buy health insurance, I don't think the Raich case is much of a precedent. As that Clinton Era report indicated, it's highly unusual to require citizens to buy something. Here, it's something really expensive, thousands of dollars, not to exercise a privilege (like driving a car) but merely to exist where you happen to find yourself. What if you are on a tight budget and you suddenly must come up with another $500 a month for something?

Florida says "put me in fucking jail," but the enforcement will come through the IRS. Your penalty will be paid along with your taxes.

G Joubert says, then call it a tax, but the question will still be what is it, really. In any case, we have the text of the bill, and I don't think it's called a tax.

Deb said...

I'm with Florida on this issue. I want to see the first case where they put someone into jail for not buying health insurance. Bring it on.
You, me and Florida, DBQ. We've got a bunch of fucking idiots running our lives from Washington who have underestimated the wrath they have unleashed.

wv: ouvers

Brazilian Jungle Rhythm said...

Don't acquiesce in the obscene myth that there is anything, anything at all noble about the Left's lust for total power over you.

Someone needs to stop watching so much Star Wars, The Empire Strikes Back, Return of the Jedi, etc. Do they play scenes from these movies in between weekend clips of Fox and Friends?

Cedarford said...

I believe the Courts have already ruled that it is Unconstitutional to deny someone w/o healthcare insurance - healthcare. Which has resulted in collapse of hospitals in high underclass black/illegal alien areas, and if they survive - reductions in quality of health services in or outside the ER.

Society has a compelling public safety rationale to ensure as many people are paying into the system as possible.

And on the other side, it is law. passing Constitutional challenges - that employers must provide healthcare coverage to certain qualifying employees (most, in fact) and that employees, in turn, must have health insurance payments taken right out of their paycheck.

There is no "opt-out" even now, for most employers and most in the workforce.
Nor is there in any other advanced nation.
Nor is there any real challenge to Romneycare going through courts in Massachusetts - where those that try to duck coverage are subject to significant fines.

Suck it up, Ayn Rand acolytes.

Brazilian Jungle Rhythm said...
This comment has been removed by the author.
Zokar said...

Here's Randy's Barnett's post on this subject at the Politico.com. He's also written more extensively on the scope of the Commerce Clause re mandatory health insurance at the Volokh Conspiracy blog. Barnett argued the most recent Commerce Clause case before the Supreme Court, the medical marijuana case:

http://www.politico.com/arena/perm/Randy_Barnett_8256A4EF-01E6-4207-B4E8-C761F2FDB5BF.html

rhhardin said...

The obvious solution is health care delivered in places that are not obligated to provide free health care.

Curiously, that would be a lot cheaper, possibly to the point that people who are uninsured could afford to pay for services there.

The situation would resemble the one in the 50s, where people were charged more or less what they could afford, when they needed services.

Once there is that out, nobody would go to hospitals, and nobody would buy insurance.

Brazilian Jungle Rhythm said...

It is elementary constitutional law to say that that is not enough, and if anyone wants to disagree with me about that, they are just being ignorant.

If you want to argue that there is no right to be free from the requirement to buy health insurance, I don't think the Raich case is much of a precedent.


In that case, all of these Commerce Clause precedents seem like an abstraction - going back to Wickard, the foundation for Raich. If we're going to commingle an analysis of someone's right to preserve or abstain from acting to preserve their own life with the right of the government to regulate commerce, then one could say that a refusal to participate in the insurance market impedes the right that others have to preserve their own lives because it makes their insurance less affordable. At that point the questions become more political than legal in nature, of course - and more easily approached from that perspective. But as you can see this willingness to infuse so many angles into the matter works both ways - the specific definition of "activity" in the Constitution notwithstanding.

If one is going to argue on behalf of primordial, unformed humans having a right to preserve their own existence (or to force others, as it were, to preserve it for them), then I think they're going to have to recognize that same right on behalf of functioning, actually born human beings. I guess that's more of an aside, but a reasonable response to the argument you proposed.

Balfegor said...

Re: Althouse:

G Joubert says, then call it a tax, but the question will still be what is it, really. In any case, we have the text of the bill, and I don't think it's called a tax.

With the caveat, again, that I haven't read the latest bill and they may have changed this, the earlier House draft did refer to the penalty as a tax. Section 401 is titled: "Tax on individuals without acceptable health care coverage."

Brazilian Jungle Rhythm said...

"...to the argument you proposed."

Sorry, I should have said "to the argument you alluded to, by way of contrast."

Flexo said...

Once again liberal "experts" demonstrate themselves to be total fools when they talk about what conservatives think.

Hardly the slaves to precedent that such "experts" think they are, the so-called conservatives would be all too happy to finally overrule, once and for all, the constitutional travesty that is Wickard v. Filburn.

Brazilian Jungle Rhythm said...

Hardly the slaves to precedent that such "experts" think they are, the so-called conservatives would be all too happy to finally overrule, once and for all, the constitutional travesty that is Wickard v. Filburn.

Seeing as how you believe conservatives don't fancy themselves as "slaves to precedent", then over-rule it the old-fashioned way. Find an argument that would work against Wickard, figure out how it would work in real life, and find a case.

rollingdivision said...

Reply to Dust Bunny Queen:
It is all about power. But, on the bright side it looks as though Democrats aren't completely for socialism, but rather statism, a cross between socialism and fascism.

The way this will work is obama will have named enough judges and justices to the courts so by the time this hits the court it will be a done deal and found constitutional. The liberals will have non payers of their health care fees (whatever) prosecuted and jailed and will not lose one minutes sleep thinking about the constitution or individual rights.

Flexo said...

And besides, all of the abortion rights cases, which proclaim the fundamental and absolute right of an individual in healthcare matters, prohibiting any and all interference by the government in the relationship between a doctor and patient, all of these cases clearly demonstrate how overwhelmingly unconstitutional ObamaCare is.

Balfegor said...

Hardly the slaves to precedent that such "experts" think they are, the so-called conservatives would be all too happy to finally overrule, once and for all, the constitutional travesty that is Wickard v. Filburn.

That may be true of Clarence Thomas, but I don't think any of the other conservatives on the court are quite as willing to go back to first principles.

Flexo said...

Find an argument that would work against Wickard, figure out how it would work in real life, and find a case.

Duh. This IS the case. Why do you think it was brought up?

Brazilian Jungle Rhythm said...

This IS the case.

What? A healthcare mandate? I thought Wickard was about preventing someone from producing their own wheat for private consumption. The healthcare mandate is not about preventing doctors from treating themselves.

Conservatives will have to do better.

Steven said...

Doesn't the government currently force us to invest in a very risky, low return retirement plan?
No, it doesn't. The government charges a tax, and it runs a welfare program. Just because the two are linked in the public imagination doesn't make them constitute an investment plan.

mcp said...

Cedarford: it is law. passing Constitutional challenges - that employers must provide healthcare coverage to certain qualifying employees (most, in fact) and that employees, in turn, must have health insurance payments taken right out of their paycheck.

That's clearly not true. I know of no mandate that non-government employers provide insurance nor any requirement that employees accept it. I work for a Fortune 100 company. We have to opt in to our insurance every year.

Joan said...

Damn FDR and his court-packing plan, and damn the SC justices who caved into him and approved these massive over-reaches via the Commerce Clause. The history of the Great Depression is a history of judicial lunacy IMO. If the Court had stood firm against FDR and his fellow travelers, the Depression probably wouldn't have been so Great. All that price fixing, wage fixing and production control was far, far from anything the authors of the Constitution envisioned when they wrote the Commerce Clause, and all it did was make things worse.

Bruce Hayden said...

This could be quite interesting. Let us assume that the mandate comes through as a mandate, and not a tax, for tax scoring reasons (since President Obama promised not to raise taxes on the middle class), and then gets thrown out as not being supported by the Interstate Commerce Clause. The alternative would then be to change it to a tax. BUT, by then, it is likely that the Democrats will no longer have the overwhelming numbers they have now in Congress. And they may just lose the House in the next election (remember all those Democratic seats where their districts voted for either McCain or Bush in the last 2 elections?)

But without the mandate, the whole house of cards really falls apart. Policies skyrocket both because of effects of adverse selection due to mandating preexisting coverage (at normal prices), the ban on high deductible polices (like I have with my HSA), and mandated coverages.

Of course, if Olympia Snow's trigger is in there, then the "public option" (now apparently poll tested and changed to "consumer option") goes into effect, with all its inevitable ill effects - unless it too falls to the same sort of challenges. (Less likely of course, since Medicare is already on the books).

Bruce Hayden said...

"Many constitutional-law experts .who voted for Obama. predict that even a conservative Supreme Court would uphold a federal requirement that individuals buy health insurance."

There, I filled in the missing text.

peter hoh said...

Interesting.

Could hospitals have the right to refuse care to those who do not have health insurance or some demonstrated means to pay for the services for which they present themselves?

OldGrouchy Doug Wright said...

Florida and DBQ expressed my feelings on the matter! I was born free as an American, I shall die a free American. If the government wants to jail me because I haven't purchased health insurance, that's its decision as is mine to protest and legally resist that action.

The statue on the North End of Old North Bridge represents what our ancestors had to do, and did, and their efforts lead to this great country. America shall prevail even if there's a slight break in our democratic process.

Who knows whether future generations will find a need to commemorate the acts of today's Tea Party movements.

wv: bonshu, they yelled while charging the Tepee!

Ignorance is Bliss said...

Are we going to have the whole lumbering system cranking into operation for years before we find out whether the the individual mandate is unconstitutional? Or is that the scheme? The individual mandate is too big to fail, and the courts will cave.

Close, but not quite. They would probably be quite happy to get it enacted, have the individual mandate be declared unconstitutional, at which point the system will collapse. Then they can declare that the free market has failed, and go straight to single payer.

David said...

Now that we're pouring billions of dollars down the renewable fuel hole, there's not enough corn being grown to easily satisfy both food and fuel demand (that is, the price is too high).

Could Congress mandate that everyone owning at least a quarter acre of land not otherwise used for agriculture start growing corn?

miller said...

When the Patriot Act passed, liberals were unhappy at the restrictions to their liberty.

Why aren't liberals vocal about the loss to their liberty under this Obama bill?

Are they looking forward to this slavery because it's from their side?

WV: mediscar -- no lie!

Tyrone Slothrop said...

I try to avoid indulging in conspiracy theories, but every day that passes convinces me more that this administration is engaging in a Cloward-Piven strategy

Quayle said...
This comment has been removed by the author.
Der Hahn said...

IANAL, and I'm paraphrasing a discussion of this question that I though brought up some good points (it might have been Randy Barnett's analysis at volokh.com).

I remember a point that I haven't seen adressed here. Calling the enforcement mechanism a 'tax' doesn't sprinkle Constitutional fairy dust over the legislation. The court has looked in the past beneath the pro-forma wording of the act to determine if the underlying objective is within the scope of Congress's powers, and it will likely do this when reviewing an insurance mandate.

I think this distinguishes Raich from a potential challenge to a health insurance mandate. The courts have held that regulating substances like marijuana fall within the limits placed on Congress, so the Commerce clause question was focused on its ability to override state law. That seems a bit different from the question of where Congress derives the power to mandate an action in the first place.

Quayle said...

It isn't too hard to see what O and his cadre are up to.

They are operating on the intellectual model of power owned, power shared (hardly ever), and power grabbed.

And they are attacking every previous center of power and attempting to obliterate it.

Then in the chaos that ensues, new formations of power will be possible and the people on the outside of the previous power centers can grab the goods and form new centers of power.

Note, however, that this cadre's goal isn't tearing down existing centers of power because they are abusive to everyone else.

Their goal is tearing down existing centers of power to form NEW centers of abusive power that include them and their constituents.

And that is the flaw that is Obama's Change and Hope - it's nothing more than "meet the new boss, same as the old boss."

Alex said...

They won't arrest you, but they will fine you until every last dollar of your precious savings are gone.

Balfegor said...

I remember a point that I haven't seen adressed here. Calling the enforcement mechanism a 'tax' doesn't sprinkle Constitutional fairy dust over the legislation. The court has looked in the past beneath the pro-forma wording of the act to determine if the underlying objective is within the scope of Congress's powers, and it will likely do this when reviewing an insurance mandate.

I think that's fair, but in substance, this is a tax. I checked the new 2000 page monster on the NYT site, and yes, it still refers to the thing as a tax (now it's section 501: "Tax on individuals without acceptable health care coverage.") The 8% tax on employers who do not provide health insurance to employees is also referred to as a tax (sec. 512 -- although it only calls it a tax in the text, not in the title this time. Title has the Newspeak "Contributions").

Now, it's true that just because they call it a tax doesn't automatically make it a tax. But as I said above, I think it's functionally equivalent to increasing everyone's taxes by X%, and then giving a tax break to people with qualifying health insurance plans. Would that be unconstitutional? Because there's loads of other tax breaks -- e.g. the mortgage interest deduction or the child tax credit -- which have a similar effect. I don't think there's a constitutional mandate to pressure people into taking out mortgages or having children. Are those unconstitutional too?

If we're willing to allow deductions for mortgage interest and children, wouldn't it be permissible to raise all taxes, and then allow a special tax break for purchase of health insurance? And if that's acceptable, why wouldn't the flip side -- penalty tax on those who don't purchase qualifying health insurance -- be acceptable? The question at that point becomes a question merely of form, not substance.

G Joubert said...

G Joubert says, then call it a tax, but the question will still be what is it, really. In any case, we have the text of the bill, and I don't think it's called a tax.


Not that I'm in favor of any of this, and not that I want to be arguing with you, a Con law professor about it, but it seems to me if they call it a program and legislation properly pegged to the Commerce Clause, which is what it clearly seems to be, and then they say that Congress will be laying and collecting taxes to pay for it, I don't see how it could be attacked on that basis. How could it?

Complain about both, but the basic complaint would seem to be more about the nature of the program itself, not just the tax. When else ever has Congress created something like this that pulls everybody in whether they want to be or not? Maybe Social Security comes closest, but that wasn't tied to the Commerce Clause, was it? There it was the power to lay and collect taxes, as I recall. Was this kind and extent of power meant to be implicit in the commerce clause? Yes? Then Congress can certainly lay and collect taxes to pay for it too. Where am I wrong? No question, it's an audacious leap of power, but I don't see where the Constitutional stop can come from. It's going to take a political stop.

Whatever bills there are floating around can't be in the form they'll ultimately be in.

Balfegor said...

Maybe Social Security comes closest, but that wasn't tied to the Commerce Clause, was it? There it was the power to lay and collect taxes, as I recall. Was this kind and extent of power meant to be implicit in the commerce clause?

There are a few pieces to this bill. One piece involves a far-reaching and over-specified attempt to restructure and regulate insurance markets across the entire country. This part of the bill sets up the health insurance exchanges and so on. The power Congress would be working under there is the Commerce Clause, and I think it's within the power of Congress to regulate health insurance markets through the Commerce Clause (cf. ERISA and HIPAA).

The next piece is the "mandate," which is implemented, in the current House draft (the 1990 page beast) through revisions to the IRS code, and proceeds under Congress's awesome and terrible power to tax and destroy. I think there's also a special, separate tax on rich people, now, to get the CBO to score it as deficit neutral.

The last bit is revisions to Medicare and Medicaid, and I don't know what provisions of the Constitution they flow from, but I suspect they're whatever Medicare and Medicaid.

And I'm sure there's all kinds of other nastiness in the bill that I don't know about -- the monstrosity is nearly 2000 pages, after all, and I certainly haven't read the thing front to back and tried to understand it -- but these are, I think, still the highlights.

Anyhow, the upshot of that is -- I don't think Congress needs to choose a single provision of the Constitution for every bill. They can use as many as they like, so long as each provision of the bill is supported by some Constitutional power, however broadly construed.

Kylos said...

Count me as one person who will go to jail if coverage is mandated. Whether it's a tax or penalty, I will refuse to pay the portion allotted to mandated health coverage. And no, I won't be double-dipping and getting free health coverage at the time.

Also, wrt the marijuana issue, apart from the constitutional issues involved there, are people really now claiming marijuana extends life?! I thought it served as a painkiller. I can't keep up when the supposed benefits keep changing. My BS meter keeps going off whenever someone is discussing the benefits of mj.

OldGrouchy Doug Wright said...

One minor clarification to my earlier comments: Tis really a shame that cobble stone streets have disappeared from American cities. That paving method did lend a sweet charm to a city's style, and facilitated building barricades; except when a street was covered with wet fall leaves!

wv: unchaser me to fulfill a government mandate!

Mr. Smarterthanyou said...

How is it that everytime we turn around some liberal lawyer is suing and stalling and defeating whatever conservatives come up with, but someone liberals get to do whatever they want with no worry or interference from lawyers and the courts?

Is the entire legal system biased and slanted to force a socialist rachet to turn on society?

jcr said...

The purpose of the commerce clause is to prevent the states from erecting trade barriers against each others's products. It's not a carte blanche for the federal government either to interfere with anything and everything that is bought or sold, or to command us as subjects.

When FDR started his assault on the constitution, the supreme court stood up and did their duty for a little while, at least. Of course, they later folded and didn't even impede his illegal imprisonment of tends of thousands of US citizens who had committed no crime.

-jcr

jcr said...

It acknowledged Raich's deteriorating health should she continue to be denied her medicine, to the point of death, as testified to by the physician, and then asserted a more compelling right on behalf of the state to restrict her from having it.

..and by doing so, the court abandoned its legitimacy. We institute governments to protect our liberty, our lives, and our property.

The declaration of independance, as Andrew Napolitano pointed out, is part of our law. It is an act of congress. Our Republic begins with a declaration that it is our duty to alter or abolish a government that abuses us.

-jcr

Pogo said...

"Is the entire legal system biased and slanted to force a socialist rachet to turn on society?"

Yes.
Read Jean-Fran├žois Revel's How Democracies Perish.
"Revel wrote about democracy, meaning societies unhinged from historical tradition, in which people come to accept the idea that a constitution is nothing more than the latest social-justice fad formulated by intellectuals. That is a 20th century derangement, very different from what the Constitution instituted"....

Chris Of Rights said...

How does the commerce clause apply once the public option forces the insurance companies out of business, and we go to single payer?

It's not commerce then, it's federal spending. So, it seems to me that the individual mandate and single-payer are mutually exclusive, even if you accept the absurd logic that the government can force a person to buy something.

Pogo said...

Logic?
The gummint don't need no stinkin' logic.

JeanneB said...

Given that they don't allow insurers to sell policies across state lines....how does this qualify as INTERSTATE COMMERCE?!

I'm sure there's some good convoluted answer. But the reasoning escapes me.

Paul said...

We are in jail. A giant work release camp. We can go anywhere, but no matter where we go we will be punished.

If it wasn't so sick, it would be slick.

You don't have to pay, they'll just make anything you buy, pay, and it will be loaded into the costs.

You have two choices, get with the capo's, and get a better deal, maybe even a rent seeking sweet position looking over some forms a few hours a week, or economically live out in the camp, dirty, nasty and hard( see Democrat social petri cities of Detroit, E.St.Louis, Newark, Bridgeport, Oakland..)

"In the end they will lay their freedom at our feet and say to us, 'Make us your slaves, but feed us.'" (Dostoevsky's Grand Inquisitor.)

elcampeador said...

The courts may do and/or rule, as they wish.

Personally, I'll stick with Patrick Henry.

"Give me Liberty, or give me Death!"

Charlie said...

Let's not forget also that the clear meaning of Roe v. Wade is that the government has no basis for intruding into the doctor-patient relationship. There's a lot to Obamacare that should not pass Constitutional muster.

Should these odious provisions become law and, especially, fail to be struck down by SCOTUS, I feel some vague symptoms coming on that may require a number of tests and doctor visits. I think a lot of people will.

Kylos said...

jcr, that was the quote I was talking about. While I agree that Holder is right in abandoning the Bush administration policy on pursuing marijuana in states that legalize it – I'm all for federalism – I still find it hard to believe that marijuana saves lives as opposed to simply making a miserable existence more comfortable. Since when did that become the case? The only medical conditions I've seen where marijuana had any part was a young boy who suffered brain damage and crippling injuries after he walked in front of a car while high on pot. The tracheotomy hole in his throat and garbled speech were particularly disturbing to me as a teen.

cf said...

The last time I saw Erwin Chemerinsky cited as a constitutional expert was when he represented Plame/Wilson in their civil suit against Cheney et al and was laughed out of court.

gully_foyle said...

And isn't a public option that does not include payments for abortion services unconstitutional as well? Mustn't the basic private plans also cover abortion services.

Given the treatment of the abortion right as nearly absolute, how can Congress regulate a medical system that excludes such services? And just try and make the rest of the plan severable from that!

gully_foyle said...

Laugh at Erwin Chemerinsky all you want, but he's odds-on to replace Stevens on the Court. And God help us all.

former law student said...

Given that they don't allow insurers to sell policies across state lines....how does this qualify as INTERSTATE COMMERCE?!

the "they" here is the individual states, not the Federal government. The Federal government tolerates state regulation of insurers within their borders even though residents freely travel to different states where they get ill and need medical care.

The Taxing and Spending clause would allow the Feds to collect health insurance fees and pay them out on behalf of the uninsured. I see no problem there so long as they call it a tax. The precedent would be Miller, in which a registration and fee requirement for machine guns, sawed-off shotguns, silencers, etc. under the National Firearms Act was found constitutional, and not a violation of the Second Amendment. The Feds spend money on citizens' health care now, under a variety of programs, so another spending program would be no less constitutional.

sgi said...

Writing from Canada and not a lawyer but it seems pretty clear that the objective is single payer that will be paid by higher federal income taxes on everyone who pays them, which I understand is less than 50% of the US population.

Eventually, all of these laws and mandates and fines will not be necessary because there will not be another option other than the single payer.

Most employers in Canada offer health insurance coverage but there is absolutely no penalty for not offering it. In which case a means test is applied by the province in which you reside to determine how much you will pay from your net income which is reported on your income tax return. This test also determines what percentage of your income you will be required to pay for prescriptions.

The federal government transfers tax income to the provinces for health care but provinces typically don't spend all of it on health care. There is a lot of unrest in our system: work-to-rule doctors, unionized labor unrest and even strikes, closed hospital wards, and long or very long waiting lists for specialists.

People who don't have insurance must go to hospital emergency rooms for treatment and as far as I know there is no law requiring a citizen to buy health insurance.

Frankly, the system is unsustainable. Even though as a percentage of federal tax receipts we pay less than the US, we pay a rather high price by being forced to wait in line* for health care that many of us would gladly pay more for but it is illegal.

How crazy is that?

*Unless of course you are a former Prime Minister of Canada then you can jump the line.

dehall77 said...

Will Americans that live & work overseas and that pay taxes, be required to pay the higher healthcare taxes and insurance mandates? Obviously, those Americans will be shut out of the U.S. healthcare system just because of where they live.

Diet Pilot said...

Uh AUTO INSURANCE??? The government DOES require that you purchase this product already. I'm not crazy about forcing individuals to buy health insurance, but I can't imagine that it will be much different than the auto insurance mandate already in place.

Kiyan Smith said...

Auto insurance is mandated at the state level. In order for health insurance to be mandatory, they would have to figure out a way to make it a state issue in order for this bill to pass SCOTUS muster. Unless they set up state-level public options with an opt-out, I don't see how they could accomplish that.