Mark Hall: An insurance mandate is needed in order to create market conditions that allow this different kind of insurance product to be sold. That’s why a mandate is more than just a requirement to buy someone’s product. Instead, it’s an essential part of insurance regulation and comprehensive market reform — unlike the various examples Prof. Barnett offers as extreme analogues.

Another way to put it is that Congress wants the market to sell flying unicorns. For obvious reasons, the market won’t do so. So somehow Congress has the right — because it has the power to regulate the flying unicorn market — to force everyone in the country to undergo genetic experiments designed to create flying unicorns as an “essential” part of regulating the flying unicorn market.

Like me most of you are not attorneys. I respectfully request you read the attached so at least you can bitch from a reasonable understanding of how our Constitution is “supposed” to work.,

THIS BILL IS A TAX

Regardless of what happens, you should realize [no matter what they call it] this HealthCare Bill is a TAX. “A rose by any other name is still a rose.” The HealthCare Bill will be placed within Social Security, [(Pub. Law 74-271, August 14, 1935, 49 Stat. 620; as amended) is codified at 42 U.S.C. §§301 et seg.]

The original Social Security Tax Act, was held as an “Income Tax.” It was and “excise tax” based on income; Steward Machine Co. v Davis (1936) 301 U.S. 548-618, 81 L.Ed. 1279. Holding, Social Security Tax is an Excise Tax; Heverling v. Davis (1936) 301 U.S. 619-646, 81 L.Ed. 1307, Social Security Tax is an excise.
“The proceeds of both [the employee and the employer] taxes are paid into the treasury like any other internal revenue tax, and are NOT earmarked in any way.”

Also see; Carmichael v. Southern Coal &. Coke Corp. [1936] 301 U.S. 495-531, 81 L.Ed. 1245. Alabama Employment Tax constitutional.

The interesting factor was that in 1939 only the “EMPLOYER” appeared. Thus the Court (clearly states) that it (the Court) was only ruling on the law as it pertained to employers and not employees (workers). As they [employees (workers)] were not a party. Thus the holding (i.e. that Social Security was unconstitutional) of both Davis v. Boston &. M.R. Co., (1937) supra., and Davis v. Edison Elec. Co., (1937) supra., as it applies to individuals/ employees/ workers is still valid. Others Cases: Flemming v. Nestor, (1960) 363 U.S. 603, 4 L.Ed.2d. 1435, 80 S.Ct. 1367.

The HealthCare Bill raises revenue, and is alleged earmarked for HealthCare reform. Perhaps rereading the basics of Steward Machine Co. v Davis and Heverling v. Davis.

Moreover, when any tax bill (regardless of what you call it) exempts States, individuals and Corporations it lacks the capacity to be uniform and is un-Constitutional on its face.

Remember,how this all started out to “help” the millions of uninsured – turns out that “reform” is actually aimed at those who are insured and have no problems with the concept of private insurance. Ultimately, the goal is to make the cost of private insurance unbearably high so that more people come crying for a single payer system.

There are several ways to get to single payer – the public “option” was only one way. But the current health insurance mandate may be more effective than even the public option.

It is almost like private insurance companies also realize this and want to earn as much dough as possible before winding down for good. The only ones who are more happy than liberals about mandated health care are the insurance companies. No wonder health care stocks are now soaring.

I have run the numbers for my case and, even though I have paid for my own insurance for most of my life (self employed) it makes sense to simply cancel, pay the annual fine (max $2500 for a household) and then buy insurance once sick (can’t be denied).

That is the optimal path for most working professionals and their employers (who will be happy to pay 750 per head rather than offer insurance). The risk pools will then be occupied almost exclusively by sick people, causing rates to skyrocket.

With insurers obligated to pay overhead / salaries / bonuses out of 20% of the premium, they will actually see a larger chunk of cash to play with as rates skyrocket.

An unsustainable set of outcomes.

I disagree

Take it up with Kenneth Arrow.

Anon21 says:

wooga:
What? “Tax and Spend” /= Constitutional.Congress can only “tax and spend” in furtherance of some other enumerated power.“Tax and spend” is not a source of Congressional authority, it is simply a method of exercising the authority defined elsewhere. Otherwise, there are no limits on Congressional power at all.

Both Jack Balkin, in the linked debate, and the Supreme Court in (among other cases) Helvering v. Davis, 301 U.S. 619 (1937) disagree with you, and construe the power to tax and spend as a separate and independent grant of power to Congress rather than an ancillary means of effecting other powers. Do you have contrary authority on that point?

Yeah, that the 16th Amendment was necessary. Direct taxes were unconstitutional, and I’m not seeing how the health care penalty (and yes, it is explicitly a penalty) fits within the authority of the 16th or any pre-existing authority.

Sort of like how the Constitution did not actually grant women the right to vote until the 19th Amendment. Everyone seems to assume that the Constitution inherently grants women the right to vote and outlaws slavery… but history is to the contrary. But I know I’m fighting a losing battle, as law schools have successfully brainwashed enough lawyers into believeing the federal government is an unfettered leviathan (rather than an entity of limited, enumerated powers), such that some day soon SCOTUS will probably rule that the federal government has the right to mandate I masturbate twice daily, so as to reduce my desire to procreate, and thereby affect interstate commerce.

Another argument: there is aleady a long standing compulsory social program: compulsory schooling for minors. Parents can choose to either public or private or home schooling , but they will suffer sanctions if they disobey the mandate for schooling for minors.

“Government is Force.” Geo. W.

Q: How will the Federal Govt.
_en_force_ HCR, C&T, etc, against
the non-violent, plausibly legal,
refusal of the states to comply ?

I’m certainly no lawyer.

It is frightening to read so many arguments about how many angels can dance on the head of a pin simply to justify coercion and theft.

Founders of the 13th Amendment? Or are you arguing that the 13th Amendment doesn’t amend the Constitution?

Surely neither you nor David would contend that the 13th A overrode the various militia clauses. The Supreme Court certainly doesn’t think so given its ruling on the draft.

In any case, the original comment suggested that the government can’t force people to buy things. My response was to that claim, so if you assume the draft is constitutional, then do you agree that, as was true of the militia in 1790, you could be required to supply your own weapon? That latter question is unaffected by the 13th A.

Mark Field: Do you believe the government can compel you to serve in the militia and to bring your own weapons as part of that obligation? Because the Founders sure did.

Founders of the 13th Amendment? Or are you arguing that the 13th Amendment doesn’t amend the Constitution?

Did the penalties for not owning a firearm usable for the militia exist at the time of the 13th Amendment? I don’t know, just asking’….

I agree with the substance of your argument but would differentiate it in a couple of important ways:
A reasonably proficient blacksmith can make a musket. Many Americans at the time of the Revolution were reasonably proficient blacksmiths, so such a law might be no different than requiring houses to meet certain zoning codes, absent religious objections, etc. Really the only part of the requirement which was not readily manufactured by individuals of ordinary skill was the black powder, but that could be purchased when circumstances required. Such a requirement simply translated today would be far more onerous than a similar requirement in 1789.

Another important difference is that even if we accept that a firearms purchase mandate would be Constitutional today, such would not arise from the commerce clause, but rather from powers regarding regulating the militia. I don’t think Congress can mandate “in order to combat climate change, everyone must purchase a bicycle and keep it in good working order” any more than they can mandate “every American must purchase Obama’s books.”

If the federal government can mandate private citizens to enter into these particular commercial contracts, what compulsory commerce can the federal government not compel?

Can the feds now force one to buy a car? A Buick?

Ever note though that Balkin may be just fine with this sort of expansion of federal powers, he was strongly on the other side when it came to fighting terrorism?

Bruce, I see no inconsistency. As a matter of constitutional law, Balkin’s views on what Congress can do depends on his views of the Commerce Clause, and its enumerated powers, whereas his views on the limits of the Executive Branch’s ability to undertake certain actions derives from his views on the limits of the President’s authority under Article II and the Commander in Chief clause. In fact, most of his criticisms of Bush’s Commander in Chief actions were based on his view that they violated laws enacted by Congress (FISA, prohibitions on torture).

George Washington did not even think the Constitution allowed the government to create a pension for its soldiers yet somehow FDR got away with robbing one generation to pay the pension of another. It was, and is madness, and our first president saw it all coming. (On second thought, we know how FDR got away with it… he threatened to pack the court with his flunkies and since then the legal profession has been largely tamed from confronting the expansion of government power. Indeed it seeks that expansion as an enhancement of its own power. Ethics amongst lawyers, like water, always seek the lowest ground.)

Had the founders envisioned an era where a man has no say in what he shall and shall not buy or who he shall or shall not give his money to they would have had much less appetite for the whole revolutionary enterprise. Indeed we would still be an English colony… and just as well since one tyrant is as good as another. So, as usual, the legal “scholars” miss the point entirely — and I believe intentionally.

My advice to the legal profession is to keep squabbling over the placement of the deck chairs. It will make it all the easier for the rest of us to reach the lifeboats. God forbid the pols and their familiars in the judiciary should figure out how angry the American people are while there is still time to stop what is coming.

Mark Field: Do you believe the government can compel you to serve in the militia and to bring your own weapons as part of that obligation? Because the Founders sure did.

There was no 13th amendment when they were around, so I don’t see how that’s responsive to his comment.

Mark Field: The fact that demand for something is highly illiquid does not make it “not a consumer good” or “not a rational market.”

The fact that something is “highly illiquid” means that the market is not perfect, and therefore it makes no sense to apply the theoretical rules of perfect markets to that commodity.

I disagree, but in any case, when I wrote “illiquid,” I meant inelastic; I was busy on the phone at the time, and not paying quite enough attention to either.

Perhaps this sounds outlandish, but to me – it seems extremely logical. The government’s power over me in this bill would/could be the same for any other purpose beyond healthcare – regardless of the intention of this specific mandate.

In essence, no individual can be conscripted to engage in an economic activity into which s/he does not wish to enter. At the very least, the shadow of the 13th Amendment hangs over this individual mandate: if all individuals can be conscripted, in a time of peace, to engage in work to fund a government program, then the 13A is a dead letter. All Americans would be liable, from birth, for involuntary service to fund whatever program the federal government devises. That is slavery under any definition of the term.

Do you believe the government can compel you to serve in the militia and to bring your own weapons as part of that obligation? Because the Founders sure did.

The fact that demand for something is highly illiquid does not make it “not a consumer good” or “not a rational market.”

The fact that something is “highly illiquid” means that the market is not perfect, and therefore it makes no sense to apply the theoretical rules of perfect markets to that commodity.

ThomasD: When do we start parsing the limits of Congressional power as it relates to the ‘domestic tranquility’ power mentioned in the preamble?Think it’s a joke?

sputnik:
exactly !!!we don’t like it– must be unconstitutional

Correlation and causation are two different things.

Seriously, I would like to know the logical reasoning that would say health insurance yes and pony no. If it is just a matter of calling it a tax, then couldn’t it be called the “pony tax”?

So one party to the contract (the federal government) intends on changing the terms. The other party, the citizens, will have a chance to remove most of those responsible first through elections. I will argue with my fellow citizens that those who voted for this expansion of the federal government violated the terms of the Constitution and must be removed from their position of trust.

Our ultimate legal recourse on the constitutional authority of this act will be with the citizens at the ballot box. Will we let continue in power those individuals who advocate by word or deed the unlimited power of the federal government? let us pray not!

sputnik: I am in favor of mandating the purchase of health insurance. Why? Because health care is not purely a consumer good and the market for health care is not a rational market. In a rational market, there is a price where the buyer will walk away. If you are a cash-pay patient dying of a heart attack, at what price do you walk away?

The point where you can’t afford it, although I suppose you’re more likely to be rolled or carried away than to walk away. The fact that demand for something is highly illiquid does not make it “not a consumer good” or “not a rational market.”

Furthermore, our perception as a society is that it is a moral imperative to heal people no matter the cost.

Presumably you mean “no matter the cost” to someone else. There are very few people who are willing to pay whatever it costs out of their own pocket to heal people. But if they can get the rich, or “corporations,” or some other left-wing boogeyman to pay, great!

That means that even if a cash-pay patient shows up at the ER in the midst of a heart attack and can’t afford the care, he or she won’t be turned away, and someone (taxpayers, insured patients, or shareholders) will have to foot the bill.

I vote for “whoever wants the guy treated.”

There is no free lunch. If turning away a dying man at the emergency room door (the free market solution to no mandates) is unacceptable to us as Americans, then we have already cast our lot as to whether or not health care is a right. Now we just have to decide how to pay for it.

Charity. Has the virtue of aligning the people who want to pay with the people paying.

For the poor, the taxpayers are going to foot the bill in any circumstance. But for those that could afford private insurance and choose to purchase other things instead, yet cannot afford to pay cash for their open heart surgery, I prefer not to subsidize their lack of personal responsibility.

So don’t. Nobody asked you to.

The fact remains that ‘majority’ is one definition of consensus. That’s probably why you often see consensus preceded by augmenting adjectives (e.g., strong, robust, healthy, etc.) and even, occasionally, diminishing adjectives: (e.g., weak). Or you see attempts to specialize it, as the revised post has done. Or qualify it, as you have done.

dave hoffman: Your view reduces to “whatever precedent says, and whatever we can reasonably predict judges will do, constitutional means what the court should do if it follows my particular constitutional interpretive methodology. If it doesn’t, it is incorrect.” I just don’t think that there are many people who would subscribe to the idea that your meaning of the constitution, or your meaning of constitutional, is widely shared.

While Ilya’s particular interpretation may or may not be widely shared, I think his view of the constitution is. That is, I think there are a lot more people who think there’s an actual constitution, with actual meaning, independent of the courts’ interpretation thereof, than there are people who think the constitution has no determinate meaning and means whatever a judge says.

There’s a reason that lawyers and law professors extract monopoly rents and philosophers and historians do not, and it’s not because we are better abstract thinkers about matters of great moment.

Right; it’s because a lot more legislators are lawyers than philosophers or historians.

Anon21: Both Jack Balkin, in the linked debate… disagree with you, and construe the power to tax and spend as a separate and independent grant of power to Congress rather than an ancillary means of effecting other powers.

I find it humorous that you would respond to the assertion that one of the reasons that there might be some appearance of a consensus here among law school academics is because a large majority of them are liberal, by citing a liberal academic.

Ever note though that Balkin may be just fine with this sort of expansion of federal powers, he was strongly on the other side when it came to fighting terrorism?

There is no free lunch. If turning away a dying man at the emergency room door (the free market solution to no mandates) is unacceptable to us as Americans, then we have already cast our lot as to whether or not health care is a right. Now we just have to decide how to pay for it. For the poor, the taxpayers are going to foot the bill in any circumstance. But for those that could afford private insurance and choose to purchase other things instead, yet cannot afford to pay cash for their open heart surgery, I prefer not to subsidize their lack of personal responsibility.

To get back to the topic at hand: SS and MediCare taxes are imposed on individuals ALREADY engaged in economic activity, i.e., employed or deriving some income. [Taxation of unemployment benefits can be argued to be constitutional inasmuch as unemployment checks are backed with income earned by the individual when s/he was employed, i.e., engaged in economic activity.] There is no mandate that individuals secure employment or raise income for the purposes of funding SS and MediCare. An individual who secures no income whatsoever cannot be compelled to contribute to these two programs, nor can that individual be committed to involuntary servitude as payment-in-kind for SS or MediCare tax liabilities.

In essence, no individual can be conscripted to engage in an economic activity into which s/he does not wish to enter. At the very least, the shadow of the 13th Amendment hangs over this individual mandate: if all individuals can be conscripted, in a time of peace, to engage in work to fund a government program, then the 13A is a dead letter. All Americans would be liable, from birth, for involuntary service to fund whatever program the federal government devises. That is slavery under any definition of the term.