Much of this may turn simply on precedent. Wickard v. Filburn and the Militia Act are frequently quoted. I would just say that there are some significant differences between these and the current mandates. On the first, the defendant took an affirmative action that made him (ultimately) a part of the market. In the second, the economy in 1797 was not in such a condition nor the ability to travel of such a nature that the government could simply collect taxes and then arm people. Also, the country was under real threat of attack by a hostile foreign power (which did, in fact, attack the U.S. in 1812), so one could argue that the measure was justified by Congress’s need to secure the country. No one would argue that we are getting healthcare as a matter of national security.

I’m not a lawyer and I’m looking at this solely as a person with an interest in maintaining our constitutional rights. Obviously, lawyers and other scholars would have a great deal more information on how the Supreme Court might ultimately rule. But I think there is at least one significant constitutional issue here, and I don’t think anyone can predict with certainty how the courts will ultimately rule on it. (But having said that, the case probably isn’t ripe until someone is actually faced with a mandate some years from now.)

I have no problem at all with us have a standing army, or a mighty military. But … there are no attempts to trim military spending. Surely we could trim 10%, which would be close to 100B and not lose any might or effectiveness. Redundant weapon systems, troops being supported in Germany and Japan, etc., these don’t help us in the battle against the loonies in the Middle East.

As many have noted, projected health care spending increases have us on a collision course with even more huge national debts. The passed proposal should help with that. The mandate is an attempt to get almost everyone covered so that they don’t keep getting health care through Emergency Rooms, a much more costly route. Having a doctor once covered, many of those currently uninsured will be persuaded to practice better preventive care. Big savings there!

The health care bill is not really comparable to the great society programs. It’s not giving anyone something for nothing. Everyone would pay, though of course those less able would pay less.

Regarding entitlements that have crippled the budget … the primary reason for that is that those with higher incomes are not paying enough SS tax. Everyone always talks about cutting benefits as the solution to this problem. But, the wealthy feel so entitled in this country, so entitled as to skip out on kicking back into the system their fair share for the right they have in this country to become wealthy, paved by a government that is very very friendly to business. Too friendly.

Why tea baggers are mad at the government more than they are mad at oppressive corporate structures is beyond me. I can understand why the wealthy want to keep the government out of their pocket – even though their argument is selfish. But, to the question who is more evil and freedom-robbing, especially of economic power, the answer I always get is corporate America, not government.

The relevant instance is health insurance companies. Health insurance companies shouldn’t even be involved in health decisions, or certainly not for profit. Doctors, nurses and hospitals are the experts. What does an insurance person know about health in a professional way? Why are we paying as much as 30% of our health dollar to insurance companies?

The real problem with the health bill isn’t the mandate. That’s chump change. It is that the so-called public option didn’t pass. If we had a self-paying option to insurance run health care (Medicare that you pay for), insurance rates would be much lower. In Germany, a health insurance company isn’t allowed to make a profit. Interviewed health care executives in Germany weren’t crying about this. And, they were by no means liberals.

Well … I don’t think you’ll agree with much of this. But, thanks for listening, if you have gotten this far.

David

Because the Preamble explicitly spells out “provide for the common defense” as a key purpose of the constitution, and and the constitution also enumerates the War related powers of the Federal government and the procedures to be followed to go to war.

You’re right – none of our founders anticipated costly standing armies, or the military-industrial complex. However, they also couldn’t conceive of a non-state actor half-way around the world in a tent or cave being able to rain death on a major American City (either 9/11, or a future dirty bomb). From a policy perspective, I also want a miltary that, as long as we can afford it, can project power farther than the reach of our adversaries. I therefore see excessive spending on social programs as detrimental to the Federal government performing one of its core functions. Furthermore, many of these programs social have completely failed, and only encourage the propagation of disfunctional behavior from one generation to the next.

The end result of all those well-intentioned Great Society programs has been the destruction of the Black family, as Government became the provider and Dads with an entry level job became and impediment to Government aid. Now, the inner city underclass has no hope, because they have too few role models of two parent families.

BTW, I make way less than you think, and pay way less in taxes. I may even come out ahead. I just see the world differently, having lived in several countries with nationalized health-care systesm.

As for the R’s who called for a mandate -it’s the coupling of the mandate with community rating that makes it an income transfer. If all the government wanted was proof I would pay for my own healthcare – that’s something else. We no longer have health-insurance; we have pre-paid healthcare. It’s as if you said that all restaurants had to have an all-you-can-eat price, or you simply had to buy an all-you-can-eat prepaid card, and go to restaurant of your choice, and buy off a menu without prices, but a co-pay. A system without price signals just doesn’t work. Give people a tax credit (as far as I’m concerned, it could even be age-adjusted) and let them contract for their own catastrophic coverage and payf for their own routine and chronic care. We could even choose to offer additional subsidies in exceptional cases for people with pre-exiting conditions.

Why do you righties never get your panties in a bunch about government overreach when it comes to military spending and the huge portion of our taxes that go to that. Do we really need that much military spending to make us safe? Did the original framers of the constituion expect we would impose taxes high enough to support that much of a defense budget? Of course not.

Of the 10K+ the average person pays in taxes every year, you could easily balance the $750 cost of the health-mandate (if you don’t purchase) tax by cutting the military budget enough. Of course, that’s never going to happen. The dems are in the take-our-freedom-away-with-huge-military-spending-related-taxation scam as much as the Rs.

All this carping over a $750 fine that’s not likely to affect anyone writing on this blog. It’s the poor who are most likely to be assessed. And most of them are Ds.

And … of course no one making this overreach argument would be doing so if Rs had called for the mandate to buy insurance, as many had in their proposals. Can you spell disingenuous? Of course you can, many of you are lawyers.

Folks here have compared and contrasted this with mandatory car insurance and the relative powers of the State and Federal government. In most states (I live in California)) , you need “Evidence of Financial Responsibility”, and not literally a minimal amount of liability insurance. In other words, you can choose to post a bond or other financial instrument the state deems acceptable (a L/C, CD or state or federal bonds?) that meets conditions set by the state, and then self-insure. While this is only practical for companies with large fleets – it does happen. Someone paying a high premium might opt for this, if they had the money.

However, Obamacare is about cost sharing from low risk groups (young and healthy) to high-risk groups (older and sicker). I’m just glad the young voted for him – they’re the one who’ll get stuck with the tab. I’m 55 – so for me, it’s about the principle.

As for Federal justification for the mandate by interstate commerce, the political defense of this is right out of Kremlin foreign policy tactics – first repeal the laws of insurance (probability, proper assessment and pricing of risk), and then, after you have created an environment ripe for adverse selection and death spirals, present the individual mandate as the solution. However, if risk was properly priced, the fine to enforce the mandate would be so small as to be politically unobjectionable.

The biggest issue I have as far as overreach, is that this doesn’t even pretend to reduce regulatory complexity by creating national regulators that streamline regulation supersede state ones in order to create a national market, but instead saddles us with many layers of layered state and federal creations.

One other point about the mandate. If the fine is upheld, anybody that has a high earned income should pay the fine – not only because you can get instant coverage for anything serious, but also, because, while you are healthy, you’ll get no subsidy. However, if you develop a serious illness, your income will likely drop, and the subsidies will start to kick in.

It’s not a punishment, unless you mean “punishment” as a synonym for “disincentive.” As with other taxes, you don’t have to be convicted of anything to be required to pay it. That’s different from criminal punishment.

“A person can only qualify for the incentive of the tax credit if they are willing and able (not an unimportant point) to buy a home. To “qualify” for the punishment in the health care bill, one need do nothing.”

And to “qualify” for the higher taxes of a non-homeowner, a person likewise does nothing. I understand that you see a *moral* difference between the two kinds of taxes, and I’m not even disagreeing with you. I’m giving my understanding of the *legal* justification.

“So there’s a REQUIREMENT that I DO something, which is enforced through the use of a disincentive for NOT doing what I’m required to do.”

Even aside from the tax issue, Congress’s ability to regulate matters relating to interstate commerce—in other words, to REQUIRE people to DO things, and disincentivize (yea, even punish) their NOT doing them—is well-established. The Supreme Court ruled, for instance, that Congress could prohibit restaurants and hotels from discriminating against black customers. And health insurance falls at least as squarely under interstate commerce as those businesses do.

“There are two problems with your argument here. The first is that the tax only applies to the uninsured, not to everyone who is born American. Therefore, it is avoidable just like the other taxes you mention. I know you might respond that “not buying insurance” is different from “earning an income” because it’s inaction rather than action. But as I said above, that’s like saying that the government is taxing me for not buying a house, because I don’t get the tax credit homeowners get.”

The “first problem” is that you are implying that a person’s status as either insured or uninsured is accidental, or not the result of whether or not a person has purchased insurance. You’re right that it IS avoidable, but only by buying a private good from a private (or likely public, eventually) entity. A homebuyer’s tax credit is NOT relevant. The tax credit for owning a home is an incentive to buy , the tax penalty in the health care bill is a punishment for not buying. This is a distinction with a difference. A person can only qualify for the incentive of the tax credit if they are willing and able (not an unimportant point) to buy a home. To “qualify” for the punishment in the health care bill, one need do nothing. Certainly you will agree that there is a difference between saying, “jump through this hoop and I’ll give you $10.” vs. saying “If you don’t jump through this hoop, I’ll take $10 from you.”

People have made the point that the government has always used taxes as an incentive to encourage certain behaviors and as a disincentive to discourage other behaviors. That is not the point. The point is that the health care bill uses a DISincentive to attempt to REQUIRE (see, that’s the real word in the bill. The Individual Responsibility Requirement) behavior. So there’s a REQUIREMENT that I DO something, which is enforced through the use of a disincentive for NOT doing what I’m required to do.

On your second point, regarding the fee, it’s not true that you don’t owe the fee if you don’t have an income. It’s just that they have no way of collecting it if you don’t have an income. (which is my point about it lacking teeth). I agree that my larger point is not a Constitutional argument directly; but it IS indirectly. It is precisely because the the bill is written with no teeth that it MAY be Constitutional (or at least, it makes it less of a threat to Constitutionally guaranteed freedoms). But IF, and probably WHEN they give it more bite, i.e., stiffer penalties and or jail time for noncompliance, it almost certainly would BECOME unconstitutional. In short, while the Bill MAY survive a Constitutional challenge now, it only does so because it has inadequate provisions to enforce the “requirement.” And IF or WHEN they put in adequate provisions to enforce that requirement, it almost certainly BECOMES unConstitutional.

There are two problems with your argument here. The first is that the tax only applies to the uninsured, not to everyone who is born American. Therefore, it is avoidable just like the other taxes you mention. I know you might respond that “not buying insurance” is different from “earning an income” because it’s inaction rather than action. But as I said above, that’s like saying that the government is taxing me for not buying a house, because I don’t get the tax credit homeowners get.

The second problem is that even if you don’t have insurance, you can avoid the fee the same way you can avoid the income tax: don’t earn an income. This is from the text of the Senate bill, and to my knowledge the final law:

“(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.
(3) PAYMENT OF PENALTY.—If an individual with respect to whom a penalty is imposed by this section for any month—
‘‘(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or
‘‘(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty.”

So if you don’t file a tax return, you don’t pay the tax—just like with income tax. I think it takes some heroic effort to say that one can avoid all forms of taxation, but even that effort doesn’t make this new tax substantially different.

“More importantly, as I’ve said before, the real problem is that it has no teeth. ”

Well, that’s a policy issue, not a constitutional one. “Constitutional” doesn’t necessarily mean “a good idea.”

“As an aside, I have to admit that I find it funny that people are trying to argue that “mandate” means something other than an authoritative command (notice the similar roots) to do something.”

This is pointless semantics. We’re arguing about the actual text of the law. I haven’t used the word “mandate” in this thread, you’ll notice, and I encourage you not to if you feel it’s inaccurate.

You’re right, insofar as it is only a tax at this point. However, it IS an unprecedented tax, which makes it a bit outside the scope of what’s authorized (at least in the past). This is not a tax for buying a good or service, or for driving on the road, or for earning an income, or even for dying. Don’t want to pay income tax, social security, medicare, etc? Don’t work. Don’t want to pay taxes on goods or services? Don’t buy them. Don’t want to pay taxes on energy? Get off the grid. Don’t want to pay an estate tax when you die? Don’t amass an estate big enough to be subject to it.

This is a whole new animal; it’s a tax on existence. If you can think of a precedent, I’d be happy to hear it. As far as I can tell, for most Americans, there’s only one action (over which they had ZERO control) required to have the tax applied to you: be born an American. Dress it up and call it a tax if you like, but it’s a tax on existence. So you can’t simply point to other taxes and go, “see, they did it before, that must mean they’re authorized to do it again.”

More importantly, as I’ve said before, the real problem is that it has no teeth. Everyone agrees (except Candidate Obama when he was debating Hilary Clinton) that the only way this bill will drive down costs is with an individual mandate. But the current one is hardly likely to force people to comply. Last time I checked it was a largely unenforceable fine of $750. Given the choice of buying a health care plan that I don’t think I need (regardless of the premium) and NOT paying an unenforceable $750 fine, which one do you think I’m going to do?

The individual mandate (and therefore the whole bill) only works if it’s MUCH more enforceable and creates a MUCH greater incentive to comply. But then it almost CERTAINLY becomes unconstitutional. Start throwing people in jail for not buying a good from a private company and THEN try to tell me you’re still safe within the confines of the Constitution. In spite of modern interpretation of the commerce clause that stretches the fabric of the Constitution nearly to the ripping point, the interpretation is not nearly big enough to cover an individual mandate with strict enough enforcement powers to mandate anything. This thing is all smoke and mirrors.

As an aside, I have to admit that I find it funny that people are trying to argue that “mandate” means something other than an authoritative command (notice the similar roots) to do something. If people are going to argue that this bill doesn’t force anyone to do anything, then we’ve officially reached the point of absurdity. In a literal sense, it’s nearly impossible for anyone to FORCE someone else to do anything, as there’s almost always an alternative (no matter how difficult or unappealing). The bill IS intended to force people to buy a private good from a private company. Otherwise they’d have called it the “individual really-strong suggestion.”

You’re so baffled by the things I’m saying that I get the feeling you haven’t read very widely on this issue: a lot of legal experts agree with me that the law is constitutional. That doesn’t mean they’re right, but you should at least consider whether there’s more to the arguments to the bill’s constitutionality than you think.

Your statement is self-contradictory. How can you say, “ALL individuals are REQUIRED to enter into a contract with a private corporation, PERIOD,” when you’ve just stated what your option is instead of doing that? If you have the option of paying a tax, in no way are you being “forced” to do anything. Paying a tax isn’t the same thing as being thrown in jail; it’s not punishment for something and due process isn’t required. Thanks to the 16th Amendment, Congress has the right to levy taxes.

Homebuyers get a tax credit on their mortgage payments. I rent and get no tax credit. Congress is telling me I MUST enter into a contract with a private third party and buy a home, PERIOD. Otherwise the IRS gets to pick my pocket. Won’t someone defend my freedom?

Really? You’ve not been paying any attention then. This entire thread is about the individual mandate. You know, the part of O-care that says ALL people MUST have a health insurance policy that is deigned to be satisfactory by the Feds, and if you don’t the IRS gets to pick your pocket. In other words, ALL individuals are REQUIRED to enter into a contract with a private corporation, PERIOD. Its completely unambiguous that the Feds are FORCING private citizens to engage in a private transaction. To say otherwise is to be detached from reality.

Nor does the new health care law force any individual to engage in a private transaction, as Sara already told you.

Yes. You have. You have received a benefit from an out of state corporation, if your Mass insurer did not pay the bill, you would be effectively uninsured.

So, you’re asserting that if any point in the chain of transactions crosses state lines, then every point in the chain is involved in interstate commerce? That’s illogical and absurd, but the law is full of (I would say dominated by) illogic and absurdity, so I’ll give on that point.

However, as I said before, even if you accept this, Congress still has no power to force any individual citizen or corporation to engage in a private transaction, as neither a real nor a corporate entity are a foreign nation, one of the several states, or an Indian nation. Those are the only three entities over which Congress has any power to regulate commerce. The Constitution could not be any more plain on this. Further, in McCarran, Congress reinforced the pre-existing body of precedent that, in fact, insurance is not interstate commerce.

i would agree if the commerce clause is the only issue in the complaint-as there is slam-dunk case law against that argument and there are not 5 votes to overturn esp in a case where even a more moderate view of commerce would allow this.

but since there is also the issue of no direct tax without equal apportionment (as distinct from income tax which is allowed without equal apportionment (compare art I section 9 and 17th amendment) which could be a basis for unconstitutional. Even if under commerce clause there is section 8 affirmative power there could also be a limit in section 9. Unlike the commerce clause there is far less case law on the point of what a direct tax is vs a “fine” and the like.

so i think OK has probably understated the odds because he fails to distinguish these points.

Nope, my understanding is that the BCBS for VA is a separate corporation from BCBS of MA. I pay my co-pay to the Dr., the Dr. bills the VA BCBS, VA recovers the $$ from MA, my company (based in MA) pays the premium to BCBS of MA. The only time $$ pass across state lines is the transaction between BCBS for VA & MA. Again, *I* have not engaged in interstate commerce.

Yes. You have. You have received a benefit from an out of state corporation, if your Mass insurer did not pay the bill, you would be effectively uninsured.

Nope, my understanding is that the BCBS for VA is a separate corporation from BCBS of MA. I pay my co-pay to the Dr., the Dr. bills the VA BCBS, VA recovers the $$ from MA, my company (based in MA) pays the premium to BCBS of MA. The only time $$ pass across state lines is the transaction between BCBS for VA & MA. Again, *I* have not engaged in interstate commerce.

As for the fantasy that we get to keep our current insurance arrangements indefinitely, that’s just naive, since even the most minute change in coverage will trigger the requirement to participate in a Federally-approved plan. Failure to comply with this will result in the full coersive power of the IRS being brought to bear.

Also, you’re missing the larger point… It is completely unambiguous in the Constitution that the Commerce Clause cannot possibly apply to either individuals or to corporations (which also are not foreign nations, any of the several states, or an Indian nation). Regardless of what transactions I’m doing, the Federal Gov’t cannot even potentially force me to engage in a private transaction based upon the Commerce Clause.

Also, if you have insurance from your employer, you do not have to buy anything under the law.

BTW, your assertion that I don’t have to purchase anything is simply false. It is called the ‘individual mandate’ for a reason. Just because maybe it doesn’t kick in for a few years doesn’t change the fact that, if not struck down or repealed, at some future point the firepower of the ‘fully armed and operational’ IRS will force me to purchase health insurance that meets, not my standards, but the Federal Gov’t's.

As for your personal situation, it’s unchanged under the new statute. You don’t have to purchase, anything, at all. Your high horse is going in the wrong direction.

No. Congress, in a congressional statute, granted states power to regulate in this area and carved out areas for itself. Congress has altered those areas where subsequent Federal statutes, apply (eg. COBRA and HIPAA). Congress can change McCarran, at any time.

You are correct, and this is a correct application of the Commerce Clause. Ironically, what the Republicans have been advocating (to correct the state-by-state patchwork) is to also use the Commerce Clause as intended, namely to prevent state regulations from interfering with commerce. The Commerce Clause has NO application to private transactions, 60+ years of jurists sadly ignorant of the plain meaning of the Constitution not withstanding.

However, in my example, whatever the arrangement amongst the various state incarnations of BCBS, I am not engaging in interstate commerce (my Dr sends his bill to the Virginia incarnation of BCBS) and my company HQ contracts with their local BCBS. Those entities may be engaging in interstate commerce but I am not, so you cannot justify use of the Commerce Clause to force me, as an individual, to purchase insurance.

Furthermore, as I am neither a “foreign Nation”, nor one of the “several States”, nor an “Indian Nation”, the Congress has exactly ZERO power to mandate that I purchase anything at all.

My company insures through Blue Cross Blue Shield of MA, but I’m located in VA.

That’s called interstate commerce.

Regardless, it is still the law of the land that Congress voluntarily surrendered their supposed ability to regulate private industry via the Commerce Clause. So, how can both McCarran and O-care then both apply?

No. Congress, in a congressional statute, granted states power to regulate in this area and carved out areas for itself. Congress has altered those areas where subsequent Federal statutes, apply (eg. COBRA and HIPAA). Congress can change McCarran, at any time.

But the people yelling about the Commerce Clause as though it’s the 1930s are not putting forth a member of that set.

memomachine: You bore me.

If it was my purpose here to entertain you this would make me feel bad. But it isn’t and I don’t

This post was mentioned on Twitter by VolokhC: What Are the Chances that the Courts Will Strike Down the Individual Mandate?: With all this blogging here at the … http://bit.ly/dcL0ol...

epluribus:
So true, but you can correct me, give me the real facts, and set my thinking straight.I am grateful to you for that.

You bore me.

epluribus: Desi, you are so right. I just loved it when the Republicans were in power and all the prices went down. Insurance premiums were plummeting. I know, this may seem ahistorical, actually mendacious, but who worries about being ahistorical or mendacious when political points are being scored?

What did his argument have to do with “when Republicans were in power?” Talk about an obvious and desperate dodge.