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John Suthers is a very sober and sensible man — one who works well with people across the aisle politically — so if he sees a legal or constitutional problem with how the healthcare bill was drafted, that’s a strong indicator that there is one.
I’m really glad that you organized this interview, but you wasted an opportunity here. I know you are sympathetic to the interviewee’s position, but you could have at least pretended for the sake of the interview that you were being objective.
Case in point: first question is a softball; that’s fine. In his answer he describes the “constitutional rubicon” as
“the first time congress has ever sought . . . to regulate one’s decision not to engage in economic activity and to stay out of the market place. They are punishing you for your commercial inactivity and forcing you to buy a product or service that Congress deems beneficial”
I know you agree with him, but were a lot of ways you could have had him flesh out these positions. For example, by asking why Wickard isn’t an example of Congress regulating economic inactivity and/or staying out of the marketplace. Or by asking if Congress is really “forcing” you to buy a product, when the penalty isn’t criminal or civil liability but only a legally unenforceable (per the legislation itself) tax incentive.
But you just agree with him, make a whole slew of additional arguments to support his position (“So as you point out, this is actually not something with any precedent in our entire history…”), and move on.
I mean, I understand you’re basically trying to advocate. But the Colorado AG seems like a pretty smart guy that was actually willing to have a legal (rather than political) discussion. All you provided was a libertarian echo chamber.
go vols: Hans,How can you (especially with your background!) cite Morrison and Lopez and leave out Raich?
Because of Scalia’s opinion?
“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.”
Scalia’s opinion was a dissent, and he wasn’t joined by any of the five justices that constituted the majority. In other words, Scalia’s opinion is entirely irrelevant to the legal significance and effect of Raich.
Is the Obamacare tax any different from saying: a 1% income tax is levied on everybody, which can be paid by either (a) cash, or (b) conferring a benefit on the country in the form of a purchase of health insurance?
The tax itself is constitutional–we are just arguing about the method of payment, where I would think the feds have a lot of freedom…
David V: I think it was concurrence. Thomas, O’Connor and Rhenquist wrote dissents.
Looking back, you’re right; it was an concurrence. But the point remains that (1) Scalia didn’t write the majority opinion, (2) no other member of the majority joined Scalia’s opinion, and (3) there were enough justices signing the majority that the decision would have stood no matter what Scalia did or wrote.
I think that reaches the same result: Scalia’s concurrence constitutes only his own opinion, and doesn’t have any effect on the legal effect of the Raich decision.
(Now, if the vote was otherwise tied, and Scalia concurred with the result but agreed with the minority on a particular issue, then it would be a different ball game.)
JohnF: Is the Obamacare tax any different from saying: a 1% income tax is levied on everybody, which can be paid by either (a) cash, or (b) conferring a benefit on the country in the form of a purchase of health insurance?The tax itself is constitutional–we are just arguing about the method of payment, where I would think the feds have a lot of freedom…
Legally, or politically?
Legally… maybe. Whether Congress can require citizens to pay tax in the form of ephemeral “benefits conferred to the country”, as an alternative to greenbacks, strikes me as a litigable issue.
Politically, there’s a tremendous difference given Mr. Obama’s repeated pledge not to raise taxes one iota on anybody earning less than $250k annually. Mr. Obama himself appears to recognize this, given his inane interview responses to George Stephanopolous a while back.
I gotta say, the passage where you cite his oath and ask “how can you not join the lawsuit” reminded me of the Lisa Simpson question to Monty Burns when he was running for Governor. Please. Plenty of bright legal minds think this is perfectly constitutional. They may not be right but it’s insulting to imply that every AG who doesn’t join the suit is betraying their oath. Up until that point, I didn’t think this was a waste of my time. From that point on, I tuned out.
How can you (especially with your background!) cite Morrison and Lopez and leave out Raich?
My knowledge of Hans’ background is limited to his posts on Volokh, but he generally ignores or dismisses as irrelevant any case that comes to a result that he doesn’t like.
Ultimately, the Lopez-Morrison-Raich line of cases may be less important than Heart of Atlanta Motel and McClung should the Court choose to draw the analytical line between economic activity and non-activity.
improvidently granted: Ultimately, the Lopez-Morrison-Raich line of cases may be less important than Heart of Atlanta Motel and McClung should the Court choose to draw the analytical line between economic activity and non-activity.
Well I am not sure about that. The Motel was in clear violation of Civil RIghts and Civiil Rights clearly applied due to the guests at the hotel.
I don’t see where that applies to the mandate argument.
But- Medicare and SSI are clearly the same types of mandates. Or are they? I’d like to hear from the original poster on this subject.
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David V: “Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.”
Wouldn’t that argue for the constitutionality of the mandate? It was enacted in conjunction with regulation of inusrance (the pre-existing condition regulations) and is needed to make that regulation effective.
Much in these lawsuits seems to be frivolous, designed more to attract voter attention than to attract favorable rulings. Do you guys have a problem tying up the courts with political stunts?
David V: Well I am not sure about that. The Motel was in clear violation of Civil RIghts and Civiil Rights clearly applied due to the guests at the hotel.I don’t see where that applies to the mandate argument.But– Medicare and SSI are clearly the same types of mandates. Or are they? I’d like to hear from the original poster on this subject.
Heart of Atlanta Motel involved a challenge to the applicable Civil Rights Act itself, in that the motel operator contended that Congress lacked power to enact the legislation. The Court ruled that the power to regulate interstate commerce is broad enough for Congress to prohibit a private individual’s decision to decline to rent a room to Negro occupants.
I wonder why many “states’ rights” clowns advocates who kvetch about regulation of economic inactivity are loath to discuss this opinion. Does it perhaps hit too close to home?
Hey, if Ronald Reagan can open his presidential campaign in blathering about states’ rights in–of all places–Philadelphia, Mississippi, then this century’s heirs of Lester Maddox can grow a pair. (By the way, if Reagan wound up on the other side in the same place as Andrew Goodman, Mickey Schwerner and James Chaney, their first conversation must have been a doozy.)
lgm: Much in these lawsuits seems to be frivolous, designed more to attract voter attention than to attract favorable rulings. Do you guys have a problem tying up the courts with political stunts?
I certainly do. I realize AGs are political actors to some (a great?) extent, but I find it especially depressing when they use their offices primarily to score political points. (And, no, I do not care what the political point is.)
Perhaps these folks really, truly believe they have a case. Otherwise, they are wasting scarce resources on sturm und drang while real matters of genuine weight are put aside.
John Herbison: The Court ruled that the power to regulate interstate commerce is broad enough for Congress to prohibit a private individual’s decision to decline to rent a room to Negro occupants.
This seems to be the relevant bit -”…the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.”
So the argument here would be that economic inactivity would have a substantial, harmful effect on… health insurance costs? Genuinely curious.
jrose:
Wouldn’t that argue for the constitutionality of the mandate?It was enacted in conjunction with regulation of inusrance (the pre-existing condition regulations) and is needed to make that regulation effective.
Yes. That was the point. Since it was a concurrence on the ruling, this is possibly why it was left out of the original post- which has an obvious bias against the health bill. However, it was noted that even though it’s included, it’s not the court’s official ruling and probably not useful.
Those who decline to purchase insurance are, in effect, self-insuring. (Professor Jack Balkin has written on the commerce clause implications of this, but I cant find the link.) To the extent that these non-consumers of health insurance become consumers of medical services that they cannot pay for, health providers incur costs which are shifted to other patients, including insured patients. That affects both the cost of care and the cost of insurance.
Hospitals obviously engage in interstate commerce. While individual insurers may not operate in multiple states, insurance companies are heavily invested in interstate commerce activities, especially as purchasers of income generating securities and other instruments.
ChrisTS: I certainly do. I realize AGs are political actors to some (a great?) extent, but I find it especially depressing when they use their offices primarily to score political points. (And, no, I do not care what the political point is.)
Notably, Suthers has specifically and vehemently, in writing, disavowed this very kind of lawsuit from AGs in the past. It is marginal at best. He does not really believe in it. There are fools out there, but he knows better.
Floridan: My municipal government requires me to contract with a private garbage collection company, whether or not I need that service.Where’s the tea partiers?
That’s an interesting point. I have been wondering how the dreaded ‘mandate’ differs from the many [apparently accepted] positive legal duties we have.
Floridan and Chris TS… I think the bone of contention here is that what you are talking about are covered under local and state laws and they are looking at this as the Federal Government overstepping into areas that should be ‘mandate’ or not by the states.
My question is about exemptions for certain religious groups like the Amish where they say their communities self insure and the Muslims where they say it violates their religion, there may be others but those are the 2 I have read about. Will these people be required to pay the penalty or are they exempt from that also and if they are exempt from the penalty then how is this a tax levied on all as it is supposed to be?
Notably, Suthers has specifically and vehemently, in writing, disavowed this very kind of lawsuit from AGs in the past. It is marginal at best. He does not really believe in it. There are fools out there, but he knows better.
Well, that is even sadder. I wonder if anyone can participate in our political arena, these days, and maintain any integrity?
Oh, I know, Jefferson behaved like a skunk when he was Adam’s Veep and so forth. But, is there any public role, now, that does not work like acid on the principles of the people who occupy it?
I’m getting old. I sound like those ancients complaining about the corruption of their times. :-}
I think you might be on to something about the local/state v. federal issue. Of course, that does not, in itself, resolve the purported distinction between positive and negative obligations that some are relying on in their criticism of the ‘mandate.’ It is still a positive obligation, no matter who imposes it.
As far as claims for religious accommodations go, I imagine the courts will have to consider these just as they always do when there is a request for exemption on those grounds. If an Amish group [it is not an entirely monolithic designation] can show that it (a) has strong religious freedom grounds for refusing to purchase insurance and/or that (b) its members will never need care at public expense, I suppose they could win. (Especially if they can demonstrate both claims.)
Floridan: My municipal government requires me to contract with a private garbage collection company, whether or not I need that service.Where’s the tea partiers?
Your municipal government isn’t limited to enumerated powers under the federal Constitution. States may legislate in areas that Congress may not reach, given the police power (which is generally reserved to the states). See the 10th Amendment.
improvidently granted: Your municipal government isn’t limited to enumerated powers under the federal Constitution. States may legislate in areas that Congress may not reach, given the police power (which is generally reserved to the states). See the 10th Amendment.
To be more precise, how is the different from any of the other requirements the Federal government imposes on all of us? The duty to pay income tax also imposes a duty to file an income tax return under penalty of prosecution. If you’re not able to figure out how to file it yourself, you’ll have to employ some private entity to figure it out for you. Presumably, if you created your own health insurance company that complied with the relevant laws, you could also provide your own health insurance to yourself.
the first time congress has ever sought . . . to regulate one’s decision not to engage in economic activity and to stay out of the market place
The person who doesn’t buy health insurance is most probably engaging in economic activity and so forth that affects the health insurance market. The person is likely self-medicating, for one thing. They also are probably involved in the market place — not the health insurance market per se, but still the market place, including working in some business that is required to provide health insurance w/o an exception for pre-existing conditions. They also might at some point need to partake in health care — regulating to deal with that potential seems reasonable; I’m unsure that the government has to risk waiting until they actually do it, and then cannot pay and so forth.
Also, the “regulation” here is that if you don’t do “x,” you get a tax penalty. This occurs all the time. For instance, is there no federal deduction for doing things like having an energy saving device? If you don’t work, you don’t get certain tax breaks. There was a $400 additional deduction for workers this year as I recall.
jrose: Wouldn’t that argue for the constitutionality of the mandate? It was enacted in conjunction with regulation of inusrance (the pre-existing condition regulations) and is needed to make that regulation effective.
That is not at all true. Pre-existing condition regulations can be enacted and enforced very effectively without a mandate.
Abdul Abulbul Amir: That is not at all true. Pre-existing condition regulations can be enacted and enforced very effectively without a mandate.
The argument is that a mandate is required to prevent a “health care spiral.” The concern is an influx of individuals with pre-existing conditions combined with an increasing number of healthy individuals “opting-out.” The more that happens, the more that the individual cost of health insurance would increase, which would encourage more healthy people to opt out, etc.
Generally speaking, any kind of insurance will fail if the only subscribers are those that currently require insurance.
Joe: The person who doesn’t buy health insurance is most probably engaging in economic activity and so forth that affects the health insurance market. The person is likely self-medicating, for one thing. They also are probably involved in the market place…
That may be true, but it doesn’t address the fact that Congress has never before claimed it has the authority to tax people for failing to buy a commercial product. By that standard, we could be taxed for failing to buy almost any product. I challenge anyone who disagrees to say what the limit is.
If Congress really has that power, why hasn’t it been previously exercised? Did they simply not feel like exercising it all these years, or did they only recently realize they have it, or what?
David Schwartz: be more precise, how is the different from any of the other requirements the Federal government imposes on all of us? The duty to pay income tax also imposes a duty to file an income tax return under penalty of prosecution.
The taxing power is among the powers enumerated under Article I section 8 of the Constitution. The power to force a contractual relationship with a private garbage collector isn’t. That’s why it’s different.
Joe: The person who doesn’t buy health insurance is most probably engaging in economic activity and so forth that affects the health insurance market.
Under that theory, all persons are engaging in economic “activity” in all markets at all times by virtue of their lack of participation. If you didn’t buy hats, you’re “affecting” the hat market. If you refuse to buy a burger, you’re “affecting” the market in burgers.
That sounds like the piling of “inference upon inference in a manner that would . . . convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States,” which the Court found unconstitutional in Lopez.
Hi,
Individuals working in multinational firms or running a business abroad come under the bracket of international tax law. If you are not aware of the rules and regulations of international tax law, you should hire international tax lawyers.
c.s.b.: The argument is that a mandate is required to prevent a “health care spiral.” The concern is an influx of individuals with pre-existing conditions combined with an increasing number of healthy individuals “opting-out.” The more that happens, the more that the individual cost of health insurance would increase, which would encourage more healthy people to opt out, etc.
True enough. However, that concern and likely outcome in no way prevent enforcement of a pre-existing prohibition absent an individual mandate.
Here Come the Lawyers, Part 2 says:
[...] other Obamacare lawsuit coverage, David Kopel posted a link to his podcast with Colorado’s AG, explaining the main lawsuit. Also, Randy Barnett [...]
March 30, 2010, 3:03 pmHans Bader says:
John Suthers is a very sober and sensible man — one who works well with people across the aisle politically — so if he sees a legal or constitutional problem with how the healthcare bill was drafted, that’s a strong indicator that there is one.
I’ve explained elsewhere why some provisions of ObamaCare exceed Congress’s power under the Commerce Clause, and how the new law will adversely affect state and federal budgets and skyrocketing deficits, and reduce life-saving medical innovation.
March 30, 2010, 3:38 pmDavid V says:
Hans- setting aside the myopia of the piece on the Examiner site- could you explain how the mandate is different from SSI or Medicare?
March 30, 2010, 4:40 pmgo vols says:
Hans,
How can you (especially with your background!) cite Morrison and Lopez and leave out Raich?
March 30, 2010, 4:52 pmc.s.b. says:
I’m really glad that you organized this interview, but you wasted an opportunity here. I know you are sympathetic to the interviewee’s position, but you could have at least pretended for the sake of the interview that you were being objective.
Case in point: first question is a softball; that’s fine. In his answer he describes the “constitutional rubicon” as
I know you agree with him, but were a lot of ways you could have had him flesh out these positions. For example, by asking why Wickard isn’t an example of Congress regulating economic inactivity and/or staying out of the marketplace. Or by asking if Congress is really “forcing” you to buy a product, when the penalty isn’t criminal or civil liability but only a legally unenforceable (per the legislation itself) tax incentive.
But you just agree with him, make a whole slew of additional arguments to support his position (“So as you point out, this is actually not something with any precedent in our entire history…”), and move on.
I mean, I understand you’re basically trying to advocate. But the Colorado AG seems like a pretty smart guy that was actually willing to have a legal (rather than political) discussion. All you provided was a libertarian echo chamber.
March 30, 2010, 5:08 pmDavid V says:
Because of Scalia’s opinion?
“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.”
March 30, 2010, 5:13 pmc.s.b. says:
Scalia’s opinion was a dissent, and he wasn’t joined by any of the five justices that constituted the majority. In other words, Scalia’s opinion is entirely irrelevant to the legal significance and effect of Raich.
March 30, 2010, 5:20 pmDavid V says:
I think it was concurrence. Thomas, O’Connor and Rhenquist wrote dissents.
March 30, 2010, 5:28 pmJohnF says:
Is the Obamacare tax any different from saying: a 1% income tax is levied on everybody, which can be paid by either (a) cash, or (b) conferring a benefit on the country in the form of a purchase of health insurance?
The tax itself is constitutional–we are just arguing about the method of payment, where I would think the feds have a lot of freedom…
March 30, 2010, 5:28 pmc.s.b. says:
Looking back, you’re right; it was an concurrence. But the point remains that (1) Scalia didn’t write the majority opinion, (2) no other member of the majority joined Scalia’s opinion, and (3) there were enough justices signing the majority that the decision would have stood no matter what Scalia did or wrote.
I think that reaches the same result: Scalia’s concurrence constitutes only his own opinion, and doesn’t have any effect on the legal effect of the Raich decision.
(Now, if the vote was otherwise tied, and Scalia concurred with the result but agreed with the minority on a particular issue, then it would be a different ball game.)
March 30, 2010, 5:45 pmBC says:
Legally, or politically?
Legally… maybe. Whether Congress can require citizens to pay tax in the form of ephemeral “benefits conferred to the country”, as an alternative to greenbacks, strikes me as a litigable issue.
Politically, there’s a tremendous difference given Mr. Obama’s repeated pledge not to raise taxes one iota on anybody earning less than $250k annually. Mr. Obama himself appears to recognize this, given his inane interview responses to George Stephanopolous a while back.
March 30, 2010, 6:23 pmJC says:
I gotta say, the passage where you cite his oath and ask “how can you not join the lawsuit” reminded me of the Lisa Simpson question to Monty Burns when he was running for Governor. Please. Plenty of bright legal minds think this is perfectly constitutional. They may not be right but it’s insulting to imply that every AG who doesn’t join the suit is betraying their oath. Up until that point, I didn’t think this was a waste of my time. From that point on, I tuned out.
March 30, 2010, 6:30 pmDilan Esper says:
How can you (especially with your background!) cite Morrison and Lopez and leave out Raich?
My knowledge of Hans’ background is limited to his posts on Volokh, but he generally ignores or dismisses as irrelevant any case that comes to a result that he doesn’t like.
March 30, 2010, 6:35 pmimprovidently granted says:
Ultimately, the Lopez-Morrison-Raich line of cases may be less important than Heart of Atlanta Motel and McClung should the Court choose to draw the analytical line between economic activity and non-activity.
March 30, 2010, 6:40 pmDavid V says:
Well I am not sure about that. The Motel was in clear violation of Civil RIghts and Civiil Rights clearly applied due to the guests at the hotel.
I don’t see where that applies to the mandate argument.
But- Medicare and SSI are clearly the same types of mandates. Or are they? I’d like to hear from the original poster on this subject.
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March 30, 2010, 8:26 pmjrose says:
Wouldn’t that argue for the constitutionality of the mandate? It was enacted in conjunction with regulation of inusrance (the pre-existing condition regulations) and is needed to make that regulation effective.
March 30, 2010, 8:43 pmlgm says:
Much in these lawsuits seems to be frivolous, designed more to attract voter attention than to attract favorable rulings. Do you guys have a problem tying up the courts with political stunts?
March 30, 2010, 8:46 pmJohn Herbison says:
Heart of Atlanta Motel involved a challenge to the applicable Civil Rights Act itself, in that the motel operator contended that Congress lacked power to enact the legislation. The Court ruled that the power to regulate interstate commerce is broad enough for Congress to prohibit a private individual’s decision to decline to rent a room to Negro occupants.
I wonder why many “states’ rights”
clownsadvocates who kvetch about regulation of economic inactivity are loath to discuss this opinion. Does it perhaps hit too close to home?Hey, if Ronald Reagan can open his presidential campaign in blathering about states’ rights in–of all places–Philadelphia, Mississippi, then this century’s heirs of Lester Maddox can grow a pair. (By the way, if Reagan wound up on the other side in the same place as Andrew Goodman, Mickey Schwerner and James Chaney, their first conversation must have been a doozy.)
March 30, 2010, 8:52 pmChrisTS says:
I certainly do. I realize AGs are political actors to some (a great?) extent, but I find it especially depressing when they use their offices primarily to score political points. (And, no, I do not care what the political point is.)
Perhaps these folks really, truly believe they have a case. Otherwise, they are wasting scarce resources on sturm und drang while real matters of genuine weight are put aside.
March 30, 2010, 9:04 pmDavid V says:
This seems to be the relevant bit -”…the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.”
So the argument here would be that economic inactivity would have a substantial, harmful effect on… health insurance costs? Genuinely curious.
And I do see your point. This case is relevant.
March 30, 2010, 9:27 pmDavid V says:
Yes. That was the point. Since it was a concurrence on the ruling, this is possibly why it was left out of the original post- which has an obvious bias against the health bill. However, it was noted that even though it’s included, it’s not the court’s official ruling and probably not useful.
March 30, 2010, 9:31 pmjrose says:
If Scalia’s vote is needed to affirm the constitutionality of the mandate, it will be very useful.
March 30, 2010, 9:36 pmJohn Herbison says:
Those who decline to purchase insurance are, in effect, self-insuring. (Professor Jack Balkin has written on the commerce clause implications of this, but I cant find the link.) To the extent that these non-consumers of health insurance become consumers of medical services that they cannot pay for, health providers incur costs which are shifted to other patients, including insured patients. That affects both the cost of care and the cost of insurance.
Hospitals obviously engage in interstate commerce. While individual insurers may not operate in multiple states, insurance companies are heavily invested in interstate commerce activities, especially as purchasers of income generating securities and other instruments.
March 30, 2010, 9:49 pmFloridan says:
My municipal government requires me to contract with a private garbage collection company, whether or not I need that service.
Where’s the tea partiers?
March 30, 2010, 10:44 pmohwilleke says:
Notably, Suthers has specifically and vehemently, in writing, disavowed this very kind of lawsuit from AGs in the past. It is marginal at best. He does not really believe in it. There are fools out there, but he knows better.
March 30, 2010, 10:59 pmChrisTS says:
That’s an interesting point. I have been wondering how the dreaded ‘mandate’ differs from the many [apparently accepted] positive legal duties we have.
March 30, 2010, 11:09 pmJayJay says:
Floridan and Chris TS… I think the bone of contention here is that what you are talking about are covered under local and state laws and they are looking at this as the Federal Government overstepping into areas that should be ‘mandate’ or not by the states.
My question is about exemptions for certain religious groups like the Amish where they say their communities self insure and the Muslims where they say it violates their religion, there may be others but those are the 2 I have read about. Will these people be required to pay the penalty or are they exempt from that also and if they are exempt from the penalty then how is this a tax levied on all as it is supposed to be?
March 30, 2010, 11:17 pmChrisTS says:
ohwilleke:
Well, that is even sadder. I wonder if anyone can participate in our political arena, these days, and maintain any integrity?
Oh, I know, Jefferson behaved like a skunk when he was Adam’s Veep and so forth. But, is there any public role, now, that does not work like acid on the principles of the people who occupy it?
I’m getting old. I sound like those ancients complaining about the corruption of their times. :-}
March 30, 2010, 11:18 pmChrisTS says:
JayJay:
I think you might be on to something about the local/state v. federal issue. Of course, that does not, in itself, resolve the purported distinction between positive and negative obligations that some are relying on in their criticism of the ‘mandate.’ It is still a positive obligation, no matter who imposes it.
As far as claims for religious accommodations go, I imagine the courts will have to consider these just as they always do when there is a request for exemption on those grounds. If an Amish group [it is not an entirely monolithic designation] can show that it (a) has strong religious freedom grounds for refusing to purchase insurance and/or that (b) its members will never need care at public expense, I suppose they could win. (Especially if they can demonstrate both claims.)
Night, All.
March 30, 2010, 11:30 pmDavid V says:
http://www.pennumbra.com/debates/debate.php?did=23
March 31, 2010, 1:02 amimprovidently granted says:
Your municipal government isn’t limited to enumerated powers under the federal Constitution. States may legislate in areas that Congress may not reach, given the police power (which is generally reserved to the states). See the 10th Amendment.
March 31, 2010, 6:19 amDavid Schwartz says:
To be more precise, how is the different from any of the other requirements the Federal government imposes on all of us? The duty to pay income tax also imposes a duty to file an income tax return under penalty of prosecution. If you’re not able to figure out how to file it yourself, you’ll have to employ some private entity to figure it out for you. Presumably, if you created your own health insurance company that complied with the relevant laws, you could also provide your own health insurance to yourself.
March 31, 2010, 6:55 amJoe says:
the first time congress has ever sought . . . to regulate one’s decision not to engage in economic activity and to stay out of the market place
The person who doesn’t buy health insurance is most probably engaging in economic activity and so forth that affects the health insurance market. The person is likely self-medicating, for one thing. They also are probably involved in the market place — not the health insurance market per se, but still the market place, including working in some business that is required to provide health insurance w/o an exception for pre-existing conditions. They also might at some point need to partake in health care — regulating to deal with that potential seems reasonable; I’m unsure that the government has to risk waiting until they actually do it, and then cannot pay and so forth.
Also, the “regulation” here is that if you don’t do “x,” you get a tax penalty. This occurs all the time. For instance, is there no federal deduction for doing things like having an energy saving device? If you don’t work, you don’t get certain tax breaks. There was a $400 additional deduction for workers this year as I recall.
March 31, 2010, 11:45 amAbdul Abulbul Amir says:
That is not at all true. Pre-existing condition regulations can be enacted and enforced very effectively without a mandate.
March 31, 2010, 11:49 amSarcastro says:
[Not without making premiums skyrocket. Ya gotta expand the risk pool, hence the mandate.]
March 31, 2010, 12:06 pmc.s.b. says:
The argument is that a mandate is required to prevent a “health care spiral.” The concern is an influx of individuals with pre-existing conditions combined with an increasing number of healthy individuals “opting-out.” The more that happens, the more that the individual cost of health insurance would increase, which would encourage more healthy people to opt out, etc.
Generally speaking, any kind of insurance will fail if the only subscribers are those that currently require insurance.
March 31, 2010, 12:19 pmJeff Norman says:
That may be true, but it doesn’t address the fact that Congress has never before claimed it has the authority to tax people for failing to buy a commercial product. By that standard, we could be taxed for failing to buy almost any product. I challenge anyone who disagrees to say what the limit is.
If Congress really has that power, why hasn’t it been previously exercised? Did they simply not feel like exercising it all these years, or did they only recently realize they have it, or what?
March 31, 2010, 4:48 pmimprovidently granted says:
The taxing power is among the powers enumerated under Article I section 8 of the Constitution. The power to force a contractual relationship with a private garbage collector isn’t. That’s why it’s different.
April 1, 2010, 1:56 amimprovidently granted says:
Under that theory, all persons are engaging in economic “activity” in all markets at all times by virtue of their lack of participation. If you didn’t buy hats, you’re “affecting” the hat market. If you refuse to buy a burger, you’re “affecting” the market in burgers.
That sounds like the piling of “inference upon inference in a manner that would . . . convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States,” which the Court found unconstitutional in Lopez.
April 1, 2010, 2:00 amTax Law Pro says:
Hi,
April 6, 2010, 5:44 amIndividuals working in multinational firms or running a business abroad come under the bracket of international tax law. If you are not aware of the rules and regulations of international tax law, you should hire international tax lawyers.
Abdul Abulbul Amir says:
True enough. However, that concern and likely outcome in no way prevent enforcement of a pre-existing prohibition absent an individual mandate.
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July 21, 2010, 8:54 pm