Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.
Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:
In your view, which of the following federal programs or agencies are constitutional?
(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate
In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent. The Supreme Court can change its own precedents, but for for purposes of argument, I am presuming that the Supreme Court would not overrule any precedents.
As Jack Balkin, Sandy Levinson, and others have ably pointed out, “constitutional” can be used in a different way, in that people express aspirations about what the Constitution should mean, even if that meaning is contrary to current precedents. For example, a person in 1946 might say “Discrimination against women is unconstitutional.” That person would not be describing the current state of the law, but would be making an argument that constitutional intepretation should be changed. Often, these aspirational statements do become constitutional law, especially when they win the hearts and minds of the public. Some of the 1930s decisions upholding parts of the New Deal or its state analogues are examples of the success of this aspirational constitutional rhetoric. For example, the statement in 1890 that “mortgage relief laws are constitutional and do not violate the Contract Clause” would have been incorrect in regard to Supreme Court precedent, and was utterly contrary to the original meaning of the Contract Clause. Nevertheless, the Supreme Court later changed its intepretation of the Contract Clause, so that the aspirational statement became an accurate description of the law.
People are free to argue all they want, on the basis of aspiration, original meaning, or anything else, that items (a) through (d) on Orin’s list are unconstitutional. If these people persuade enough of their fellow Americans, perhaps the Court might eventually narrow or overturn some of the precedents which uphold (a) through (d). However, my argument is based on the law as it actually exists today, and it presumes the continuing validity of all the New Deal and Great Society precedents.
Some parts of Obamacare, such as the calorie labeling requirement for restaurant chains, appear to be solidly within the scope of existing precedents. (At least based on the discussion I’ve heard thus far.)
In contrast, the individual mandate to purchase health insurance is not. It “is unprecedented in our jurisprudence.” Romer v. Evans (1996). It is possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate. However, such arguments are a plea for extending those cases, not for merely applying them. For example, an application of Wickard/Raich might be a law against a person manufacturing her own medicine at home, rather than purchasing the medicine through the federally-controlled market.
No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product. I can imagine a judicial opinion that builds on the foundation of Wickard, Raich, and Sonzinsky, and extends those cases much further, in order to uphold the mandate. The Court might do so, but the Court would be doing much more than merely applying precedent.
At this stage in the debate, the only cited instance of Congress ever forcing people to buy particular products have come under the congressional exercise of the enumerated militia powers in Article I, section 8, clause 16, “To provide for organizing, arming, and disciplining, the Militia. . .” Here, the congressional power to mandate is provided in the text itself. Further, the original understanding of the militia was that the militiamen ”were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” United States v. Miller (1939). The congressional power to provide for arming the militia straightforwardly includes the power to tell militiamen what kind of arms to bring to duty.
The federal militia powers come from the state militia powers, which (by enacting the Constitution) the People and the States chose to give (at least concurrently) to Congress. No one could possibly dispute that state militia powers included the power to require militiamen to bring certain types of arms to duty, and thus to require the purchase of such arms if necessary. The federal power to regulate commerce among the several states was likewise granted to Congress from the powers which were then possessed by the States and by the People. There was certainly no understanding in 1789 that state power to regulate interstate commerce (e.g., by inspecting goods at ports of entry) included the power to compel individuals to purchase goods in commerce.
So neither the Militia arming clause nor any cases provide precedent for the unprecedented mandate to purchase insurance. At best, the mandate is in a constitutional gray zone. To resolve the gray zone question, we are not limited to wondering whether to greatly extend some prior cases on the interstate commerce clause or the tax power. In addition, we can consider the structure of the Constitution itself.
As Jonathan Turley has written, allowing the individual mandate to stand “could amount to a ‘do not resuscitate’ order for federalism.” If judges find this argument (in the greatly eleborated form that will eventually be presented to the courts) to be persuasive, then the Supreme Court precedent is very clear. Several recent cases, including Seminole Tribe of Florida v. Florida (1996), Alden v. Maine (1999), City of Boerne v. Flores (1997), United States v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), and Nevada Dept. of Human Resources v. Hibbs (2003) have demonstrated the Court’s persistent determination to defend state sovereign immunity. Some of these cases involved the Eleventh Amendment, and some involved the Fourteenth (Cong. powers under sect. 5). In one case (Hibbs), the federal abrogation of sovereign immunity was upheld, partly because the federal law involved a state practice (sex discrimination) that was already unconstitutional.
These decisions have been heavily criticized by the academic Left, and the critics have pointed out that these decisions have much less to do with the constitutional text, or with original meaning of the text, than they do with the Court’s broad view of constitutional structure: the essential nature of state sovereignty, and one of the attributes of sovereignty, namely sovereign immunity.
According to the Court, a Congressional statute making it easier for states to be sued for patent infringement is such a serious violation of federalism that it must be held unconstitutional. Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank (1999). (Eugene Volokh’s article on the case is here.) In terms of the practical harm to state sovereignty, the congressional law on patent suits is to Obamacare as a house cat is to lion.
The extensive line of recent cases on state sovereignty is complemented by the Ninth Amendment. The Ninth Amendment may be read to create a presumption of liberty. Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2005). Or it may be read as requirement that enumerated federal powers be narrowly construed so that they do not violate the retained natural rights of the people, including the people’s right of self-government in the states. Kurt Lash, The Lost History of the Ninth Amendment (2009). Either reading raises further doubts about the constitutionality of the insurance mandate.
As the joint complaint of the 13 Attorneys General has argued, Obamacare constitutes an immense assault on federalism. If Obamacare is upheld, the states may be well on the way to becoming like the Roman Senate in 100 A.D.: formerly the an essential component of republican sovereignty, but now a hollowed remnant, possessing the forms of the old republic but really functioning as a mere puppet of the Leviathan.
“[F]ederalism was the unique contribution of the Framers to political science and political theory,” wrote Justice Kennedy. United States v. Lopez (1995) (concurring). To declare Obamacare to be unconstitutional, the Court may take into account the importance of preserving the unique contribution of Our Federalism. In doing so, the Court need not overrule a single precedent, nor need the Court cast into doubt any of the creations of the New Deal or the Great Society. Instead, the Court may simply choose not to invent unprecedented extensions of the interstate commerce power and the tax power.
From federal district court to the Supreme Court, the judges and justices who decide to leave constitutional doctrine exactly as it is today will decline to validate the unprecedented exercise of power in Obamacare. The last fourteen years of the Supreme Court determination to defend our precious constitutional system of dual sovereignty gives reason to hope that the courts will apply the existing law rather than make up new law, and that the insurance mandate will be declared unconstitutional.
And then: Over two thousand pages of laws certainly contain items (e.g., restaurant menu labeling, tanning taxes) that theoretically could have been enacted separately from the mandate, and might be considered severable. But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.
Brett Bellmore says:
My only quibble would be that, the chief alternative to “constitutional” referring to a prediction of court rulings, is “constitutional” referring to what the Constitution actually says. That’s the ‘normal sense of the word’ for everyone who’s not a lawyer.
April 2, 2010, 3:51 amzuch says:
Prof. Kopel:
No prior case stands for the proposition that Congress cannot set the fair market price of an ounce of primo Maui-Wowie reefer either. That’s not the end of the inquiry, though, even leaving aside the objection as to whether the facts are as you state them.
Aren’t you assuming a conclusion here; to wit, that the tax is “punish[ment]“, as opposed to a legitimate government effort to recoup (some of) the cost of “free riders”? Are you sure that the gummint can’t use the tax powers “punitively”? See, e.g., the requirements for tax stamps on marijuana (and prosecution of people for not having such).
Cheers,
April 2, 2010, 4:07 amzuch says:
Prof. Kopel:
Do you think that the Eleventh Amendment says what it explicitly does not say; to wit that the Eleventh Amendment prohibits suits in federal court against a state without the state’s consent by its own citizens? Such reasoning has always struck me as strange from those that claim to be strict constructionists (I don’t know whether that includes you, but should include some that signed on in Seminole).
Cheers,
April 2, 2010, 4:15 amBrett Bellmore says:
There are no strict constructionists on the Supreme court. It’s one of the biggest disqualifications for getting that job; Neither side of the aisle want the Constitution getting in the way of their exercising usurped powers.
Anyway, David wasn’t citing that case as an example of strict construction, he was explicitly disclaiming any appeal to strict construction. He was citing it as an example of the Court ruling to defend state sovereignty. Even if they had to depart from the strict text.
April 2, 2010, 4:25 amTim says:
This is an interesting post because it subtly presents the position that, perhaps, Congress has finally gone too far in its seemingly endless Commerce Clause legislation. If Obamacare is truly unprecedented in this way, it may be the catalyst for further narrowing of the Commerce Clause in a way that many legislators will not like. Or, they could go for a narrower view as you suggest, whereby they merely uphold the existing precedent, and refuse to consider the issues of the New Deal/Great Society, etc.
Methinks that Commerce Clause restraint of some kind is long overdue. But I wonder what the Court would do if it ever did see one of these cases, because we are definitely talking about a policy that, while unpopular, has many people very happy, who would likely become very angry if it were overturned.
I also wonder what many conservatives would think if the Court effectively terminated the so-called “health care reform” debate indefinitely. Doing so certainly would be a slap in the face to their usual deference to legislative action.
April 2, 2010, 4:43 amBrett Bellmore says:
I suspect that, if the Court strikes down large portions of the recent bill as unconstitutional, it may provide the final impetus for a modern effort at court packing. Obama fancies himself the second coming of FDR, so why not?
April 2, 2010, 4:54 amzuch says:
The Constitution doesn’t mention “state sovereignty”, even if Scalia sees it in the white spaces between the words of the Eleventh Amendment. Were it there, then a modified Eleventh Amendment (which we have today, thanks to judicial actvism) would read: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States.” Period. And wouldn’t even have had to be passed.
Cheers,
April 2, 2010, 5:02 amimprovidently granted says:
Exactly right. And extending those cases would require a reading of the clause that avoids converting the commerce power into “a general police power of the sort retained by the States.”
A pro-mandate theory of the clause would therefore have to (1) articulate its own limits (e.g., explain why Congress can or can’t mandate the purchase of hats) and (2) explain how the rubric of “activity” in previous commerce clause cases covers omissions while (3) staying within the bounds of Lopez and Morrison.
(1) is in tension with (3), and (2) is a difficult ask.
Maybe I’m not imaginative enough, but I have great difficulty in seeing how the circle is to be squared.
April 2, 2010, 5:10 amneimoller says:
i have it on good authority that this is third priority on bam’s docket, right after he bans the sale of all guns ever, and expands and solidifies the fairness doctrine.
April 2, 2010, 5:50 amPatrick says:
Does the Child Tax Credit force people to have children? Of course not and it is constitutional.
April 2, 2010, 5:59 ampublic_defender says:
The non-severability argument creates a major barrier to winning the overall argument. Once people have a right, they fight very hard to keep it. If you win, you will kick sick kids (and if the litigation takes more than a couple years, adults) off of insurance. As you concede, without the individual mandate, there’s no reasonable way to make the pre-existing condition law work.
The violence against women act that was thrown out was largely redundant–it added little real world protection beyond existing law. No so here. And if you think that judges don’t take real world implications into effect when making decisions, you haven’t done much litigation.
Also, one sign that you are making a political argument more than a legal argument is your frequent reference to “Obamacare.” That’s nice red meat for the Fox News crowd, but it diminishes the seriousness of your points. The parts of the law you challenge were basically the Republican response to Bill Clinton’s health care plan.
Finally, I think that many Fox News watchers are misjudging the politics of this issue. Let’s say you win this law suit. What will the elected AG’s say in response to the thousands (millions) of sick kids and their parents who get on TV to talk about losing their insurance thanks to their efforts? The pressure will be enormous to solve the problem. and you just cut off the only viable market-based solution. Congratulations! You might just midwife in a single-payer plan.
April 2, 2010, 6:25 amAF says:
I’m still trying to understand why requiring the purchase of services for which there is a national market encompassing approximately 16% of GDP is not regulating interstate commerce.
If the argument is that the individual mandate infringes the liberty not to have health insurance, that strikes me as a substantive due process argument (and a weak one) not a Commerce Clause argument.
April 2, 2010, 7:00 amMax Power says:
My colleagues who own houses, but are otherwise similarly situated to me, pay lower income taxes due to the mortgage interest deduction. Shall I file a lawsuit arguing that Congress has exceeded its Tax Clause and Commerce Clause powers by attempting to compel me to purchase a product from a private entity?
“A-ha,” you might respond — “the mortgage interest deduction is a deduction, while the Obamacare mandate imposes an actual penalty. There’s a constitutional distinction between ‘tax carrots’ (which are okay) and ‘tax sticks’ (which are punitive, and therefore bad).” But where is this written in the text of the Constitution? Behaviorally, both are meant to provide an incentive to do something. In fact, the tax code is chock full of special deductions and exemptions meant to incentivize certain behaviors. What is the constitutional distinction between attempting to incent those behaviors by lowering someone’s baseline tax burden if they comply and raising that burden if they don’t? Is the “baseline tax burden” somehow a constitutionally meaningful concept?
And if it is, could this whole brouhaha not be avoided by simply imposing an across-the-board income-tax increase on everyone, but providing an exemption for everyone who does purchase private health insurance? The effect would be the same as the current legislation, as far as I can see. Certainly the incentives it imposes would be exactly the same. Surely there would be no constitutional difficulty with this alternative phrasing, correct? If so, and the only difference between this “mandate” and any of the countless other tax incentives in the U.S. Code is a matter of phrasing, I fail to see how this bill is so outrageous.
April 2, 2010, 7:24 amArkady says:
Consider the home mortgage interest deduction. That is a subsidy for those who purchase homes. But if you look at it from the flip side, couldn’t one say that those who do not purchase a home pay a tax, i.e., they are taxed for not doing something? Megan puts it this way:
April 2, 2010, 7:34 amBrett Bellmore says:
Because it’s not an interstate market? You buy health insurance, by law, in your own state.
Didn’t say, “Absolute and complete sovereignty”; We have a system of shared and partial sovereignty here, part of it is delegated to the federal government, the remainder to the states, or the people respectively. That’s what the Tenth amendment is all about.
April 2, 2010, 7:38 amArkady says:
I see Max and I are on the same page.
April 2, 2010, 7:39 amjrose says:
As Jonathan Turley has written, allowing the individual mandate to stand “could amount to a ‘do not resuscitate’ order for federalism.”
Quoting Scalia from Raich:
“I think that criticism unjustified. 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.”
The mandate is in conjunction with laws which regulate how insurance companies treat people with pre-exisiting conditions, and the mandate is necessary to make those regulations effective.
April 2, 2010, 7:48 amjb says:
To those that think that the individual mandate is a tyrannical abrogation of liberty, I’m curious, do you currently have health insurance? What is the longest period you’ve ever gone without health insurance? Would you have bought it during that period were it available at a lower price?
April 2, 2010, 7:48 amKevin says:
After analyzing the commerce CON issue, here is a distinction I want to propose. The federal government may have power over travel insurance, but in-state health insurance policies dealing with PCPs and local coverage should be protected under traditional state rights. Regulating this realm would be an abuse of the power over commerce “among” the states.
April 2, 2010, 7:50 amHauk says:
What is the constitutional distinction between attempting to incent those behaviors by lowering someone’s baseline tax burden if they comply and raising that burden if they don’t?
Your use of “incent” is pretty timely in light of Larry Cunningham’s post at Co-Op yesterday.
April 2, 2010, 7:51 ampublic_defender says:
True, but misleading. A lot of people are stuck in jobs because they have a pre-existing condition and can’t leave. If a better job (or entrepreneurial idea) comes up that doesn’t offer group health insurance, they can’t take it. That decreased mobility certainly impacts the interstate job market. Plus, like the grain in Wickard, when you buy coverage for health care, you are buying lots of stuff that comes through interstate commerce. How many doctors’ offices or hospitals are stocked with only in-state goods?
The wacky US health care market even affects international commerce. Europeans pay for health care in part through taxes that cover even goods made in the US but sold in Europe. So US corporations end up paying for European care through decreased pricing potential. US companies must also pass on the costs of US health care to their international customers because it’s a cost of doing business. So US companies pay for both US and European health care, but European companies pay nothing for US health care while forcing American companies to subsidize European care.
And again, what alternative do you offer to deal with middle class people (adults and children) with pre-existing conditions? Barring injured people from suing the doctors that hurt them won’t fix it. Neither will permitting interstate insurance purchases. Without a mandate to take people with pre-existing conditions, no insurance company will take on customers who are certain to cost more than they pay. Without a mandate, a lot of customers will not get health insurance until they will cost more than they pay.
Basically, your argument is that middle class people must restrict themselves to getting jobs with employers with health benefits or we need to adopt a Canadian-style single payer plan. Which one do you pick?
Brett Bellmore’s comment and David Kopel’s post are typical of Murdoch Bubble criticism–all attack, no solutions.
April 2, 2010, 8:01 amjrose says:
There are a couple lines of reasoning.
1) Concerning your point #2, mandates regulate economic activity when people engage in other economic activites without the mandate. In the present case, people use their own money to buy health care or go to the emergency room. The mandate permissibly regulates these activities when they substantially impact interstate commerce, consistent with the limits in Lopez and Morrison which did not involve economic activity.
2) Assuming the mandate does not regulate economic activity, Scalia’s Raich concurrence I quoted above argues that laws which do not regulate economic activity are permitted when they are necessary to make effective a legitimate regulation interstate commerce. Such is the case with the mandate, but not the laws in Lopez or Morrison.
April 2, 2010, 8:01 amcboldt says:
The legal academy is getting around to openly admitting, and even embracing the legal version of “realpolitik.”
In Marbury v. Madison, Justice Marshall asserted that when two laws are in conflict, and in particular when the sources of the two laws are 1) the people’s constitution, and 2) legislation, that the Court is faced with choosing which of the two is superior. At that time, the decision was that the constitution is and must be superior.
Today, when faced with 1) the constitution and 2) supreme court precedent, the Court must assert, even if it is a false assertion, that there are no conflicts. The Court must maintain a fiction, and in asserting that all of its decisions and reasoning are in perfect conformity with the constitution, the Court undermines its own legitimacy, it ignores the power of the constitution, and it mocks the very essence of “practice of law.” This isn’t “rule of law,” this is “rule of force, fiat, and bullshit.”
I don’t mean to place all of the blame on the Court, because all three branches are guilty. It appears to me that when it comes to domestic policy, “checks and balances” is out the window. The branches are in cahoots.
And I don’t mean to place all of the blame on the government. The people get the government and results that they deserve.
April 2, 2010, 8:02 amnoahp says:
Of course Congress could have used its power to completely deregulate the insurance market, tax employer provided insurance as income, and (my personal fav) provide every citizen with a health care only debit card to the tune of $2000/yr the balance of which could be transferred freely to any other citizen. [Example: the prototypical family of four would have $8000/yr for health care and since unspent balances would accumulate they could be given to friends, family, or community as the need arises. This scheme should not bother certain types of conservatives (eg, the dividend paid to Alaskans from oil revenues)].
Jump on board liberals! Or does the idea of freedom bother you?
April 2, 2010, 8:02 amMax Power says:
Hauk: thanks for the link! Now that I think about it for a moment, I’m not a huge fan of the word “incent” either. However, I should point out that the word “incent” is back-formed from, “incentivize,” isn’t recognized by VC’s built-in spell-checker either.
April 2, 2010, 8:03 amAF says:
I see Max and I are on the same page.
I’m there too.
April 2, 2010, 8:04 amAlan Polonsky says:
If I want to have a business in interstate trucking I am required to provide evidence of insurance to obtain a license through the ICC. Yes, this only applies if I choose to engage in that business but it still is a Federal requirement that I purchase private insurance.
If I have a Corporation that must file with the SEC, I am required to provide, inter alia, an audit report from a private company.
I do appreciate that the health insurance mandate applies to everyone and not just to those that choose to go into certain businesses, but the oft repeated statement that there has never been a mandate from the Federal Government to purchase services or goods from private businesses is simply wrong.
April 2, 2010, 8:13 amjrose says:
the Court’s broad view of constitutional structure: the essential nature of state sovereignty, and one of the attributes of sovereignty, namely sovereign immunity
This argument is weak in the face of Commerce Clause precedents. Agan, Scalia in Raich:
“Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation “inappropriate,” id., at 421–except to argue that the CSA regulates an area typically left to state regulation. See post, at 6—7, 11 (opinion of O’Connor, J.); post, at 8—9 (opinion of Thomas, J.); Brief for Respondents 39—42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors “even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress.” National League of Cities v. Usery, 426 U.S. 833, 840 (1976); see Cleveland v. United States, 329 U.S. 14, 19 (1946); McCulloch, supra, at 424.”
April 2, 2010, 8:18 amnoahp says:
Yeah but a universal mandate is obviously different.
April 2, 2010, 8:19 amBrett Bellmore says:
Basically my argument is that we should be allowed to buy insurance interstate, so as to reduce the ogolopistic nature of the market, and the tax status of employer purchased health insurance should be extended to employee purchased health insurance, so as to cut the link between employer and insurance, allowing you to keep the same insurer when changing jobs. For better negotiating strength, we might buy the health insurance through non-employer organizations, such as credit unions, or the NRA. And if the government wants poor and unemployed people to eat, it provides food stamps, it doesn’t order grocery stores to sell food at below cost. If they want poor and unemployed people to have health insurance, they can do the same.
At the state level, of course.
That’s because the word you’re searching for is “encourage”. “Incentivize” isn’t a real word, either, it’s a something or other formation from “incentive”, which is a real word.
April 2, 2010, 8:19 amnoahp says:
Why can’t a clever lawyer make some kind of “penumbras of emanations” argument?
April 2, 2010, 8:23 amShag from Brookline says:
After birth, there is life and living, until inevitable death. Life and living of over 300 million in populations involves activity that more often than not requires medical care and attention that constitutes currently about 16% of the economy, much of it in interstate commerce and/or intrastate affecting interstate commerce.
April 2, 2010, 8:25 amBrett Bellmore says:
That’s true, but the commerce clause never said anything about “affecting”, it’s the actual interstate commerce that Congress is constitutionally entitled to regulate. Since I can’t buy health insurance across state lines, it’s not interstate commerce. Not that the courts care about little things like what the Constitution actually says, of course. But the rest of us notice things like that.
April 2, 2010, 8:34 amMichael P says:
One of the central arguments in favor of health care reform is that we can’t afford to keep doing things the same old ways. If that’s true, asking what people did before doesn’t read on what they would do in the future. (If that’s false, we didn’t need to do this bill.)
As a separate issue, another objective of the bill is to restrict the types of health insurance available and raise the minimum coverage for insurance. Obama promised that if I like my current health insurance, I could keep it. Not if it’s a high deductible plan. Not if it has fewer chrome-plated features than ObamaCare-compliant plans. The individual mandate doesn’t just require me to buy something I already had — it says I have to buy more than I had before.
April 2, 2010, 8:46 amnoahp says:
The advantage of my plan is that we could eventually get rid of Medicare/Medicaid…not because we are cruel and heartless but because we would want to!
Democare will eventually lead to health care rationing and some proponents are even honest enough to admit it! But for the rich and/or powerful there will never be rationing.
April 2, 2010, 8:50 ambrad says:
public_defender
They’d be retarded to do that. They are guaranteed to lose money. Why should we force insurance companies to act retarded?
How about this deal. You give me $20, and I’ll give you $1. What you don’t think that’s a fair deal?
April 2, 2010, 8:59 amcboldt says:
– Consider the home mortgage interest deduction. –
Somewhat off the point I’m intending to make, in the not so distant past, there was a deduction for credit card interest.
An obvious difference between the home mortgage deduction and the health care law is the “mandate.” A person chooses to buy a house, or not. The tax policy of the government is a factor in that decision, but it does not compel the purchase of a house. If the health care policy was implemented the same way (no compulsion to buy health insurance), then it would be under the same analytical justification. A person could take the deduction, conditional on having health insurance. If the deduction has the same value as the cost of insurance, most taxpayers would buy the insurance.
As long as participation in the service or product is truly voluntary, merely encouraged (or discouraged) by tax policy, there is a vast abundance of precedent of the federal government managing economic activity.
April 2, 2010, 9:02 amnoahp says:
In the last 30 years I have some form of employer provided health insurance for a total of 7 years. Otherwise I have not had health insurance at all. It ticked me off that as a self-employed person I could not deduct the cost of insurance therefore I didn’t even bother to look into it.
Now I am on Medicare…big whoop. Did you know I can now get a “free” colonoscopy which makes no sense in the over 65 group!
April 2, 2010, 9:04 amcboldt says:
– The advantage of my plan is that we could eventually get rid of Medicare/Medicaid…not because we are cruel and heartless but because we would want to! –
April 2, 2010, 9:11 amI like your proposal, but it has disadvantages. It is similar to the notion of “social credit,” where each person gets a certain amount of money (the government can make it out of thin air) every year, no need to work.
Your proposal creates a pool of cash for health care. It creates a supply of money for one industry. The industry will enlarge to the point it consumes all of that money, and then it will enlarge further.
Individuals and society as a whole perform better when under pressure. Those who are selling “make the world safe” and “take care of your health,” on your dime, either don’t grasp human nature, or are out to take advantage of you.
Max Power says:
How is the situation you described any different from the situation that exists under Obamacare? No one is actually “compelled” to purchase health insurance. You aren’t imprisoned of you don’t; nor are you publicly shamed, denied the right to practice a profession, or anything else of that nature. You are simply required to pay somewhat more money to the Government than you would have had to pay otherwise. Likewise, if I refuse to buy a house, I am required to pay somewhat more money to the Government than I would have had to pay otherwise. It seems that the objection to Obamacare is that the differential financial hit to the taxpayer is termed a “penalty” rather than the denial of a deduction or exemption. But either way, the result is simply a somewhat higher tax burden. How does one situation create improper “compulsion,” while the other creates a permissible “incentive”?
April 2, 2010, 9:11 amnoahp says:
“Scared Sick” is a book every person concerned about their own health and the health care debate should read.
Fact is that most people are healthy or would be if they weren’t morbidly obese or of low socioeconomic status. Universal healthcare will not change either of these two factors as well demonstrated in Canada and the UK.
April 2, 2010, 9:17 amSteve says:
This is the most awesome line from the Turley op-ed:
I want to see all the judicial conservatives sign onto this proposition. “Mere fiat of Congress”!
April 2, 2010, 9:18 amAnonsters says:
That is unpossible! Take it back!
April 2, 2010, 9:22 amcboldt says:
– How is the situation you described any different from the situation that exists under Obamacare? No one is actually “compelled” to purchase health insurance. … You are simply required to pay somewhat more money to the Government than you would have had to pay otherwise. –
In the house purchase, everybody’s payment to the government is calculated one way, and those who choose to buy a house obtain a reduction in payment due. If health care was treated the same way, the government would give a deduction to those who choose to buy insurance. It does so now, for employer purchased health care.
One has no basis to object to using the carrot approach, if one adheres to both approaches being the same. Make the deduction bigger, and more people will take advantage of it.
April 2, 2010, 9:27 amnoahp says:
@CBolt. I disagree. Imagine you a Mother with two kids. You have $8000 to spend on basic health care for your family (not to include plastic surgery for instance). But of course you worry that you might need gallbladder surgery or one of your kids might break a leg so your incentive would be to shop around and to resist unecessary tests, prefer generic drugs, etc.
Basically it would put the consumer of health care back in the driver’s seat.
The biggest threat to the whole scheme would be politician’s seeking to buy votes by expanding the definition of basic health care.
The money is not created out of nowhere…its paid for by taxation. The truly beautiful thing about it is that everyone is treated the same and given our wonderful financial is doable.
April 2, 2010, 9:36 amSteve says:
How the mom with two kids figures out which tests are unnecessary is beyond me.
April 2, 2010, 9:42 amPersonFromPorlock says:
The problem with DK’s version of ‘constitutional’ (which I admit is the school solution) is that the presumptions behind it turn the Constitution into a palimpsest; there is no fixed meaning in a document which can be read into according to the fashions of the day.
DK is right to say that a through d are ‘constitutional’, but only because much of what the Court does is simply institutionalised malpractice. The Justices’ oath is to defend the Constitution, not old errors of the Court or the (mis)judgement of legislatures.
April 2, 2010, 9:43 amAnonsters says:
And Real Americans use Real Words.
Prescriptivism ahoy, me hearties!
April 2, 2010, 9:43 amnoahp says:
I know that in my own case I would now have a balance of many thousands of dollars.
And just maybe there would be fewer assholes in the world if we thought we might need to approach family or friends someday in a healthcare emergency that our balance would not cover.
April 2, 2010, 9:46 amAnonsters says:
Yes, well…
It is emphatically the province and duty of the judicial department to say what the law is.
April 2, 2010, 9:47 amcboldt says:
– Basically it would put the consumer of health care back in the driver’s seat. –
April 2, 2010, 9:52 amMaybe, maybe not. The surplus of others allowance is also available. Depending on the cost of obtaining those funds, the shopper will be more or less careful about costs.
The health care industry is very much in tune with the notion of “available funds.” I had my son’s broken arm set, and when paying the bill, announced that I had no insurance. Several followup visits that insurance pays for, without question, were dropped from the bill. Most people prefer to be told what to do, and would rather not be in the driver’s seat. Give them free money, and they care even less.
Arkady says:
“those who choose to buy a house obtain a reduction in payment due.” Uh, no they do not. My payments to the mortgage company remained the same throughout the life of the mortgage (it was fixed-rate). I did receive a tax break at the end of the year, which I maintain was essentially a subsidy from the government to me for the purchase of my home; see Megan’s discussion that I cited. (It’s not for nothing a home is sometimes referred to as the “poor man’s tax shelter”.) And there are subsidies contained in the legislation for the purchase of health insurance. I really think the two situations are more alike than not.
April 2, 2010, 9:54 amMark says:
Wow, we are getting a little obsessive in our choice of subject matter for the VC, aren’t we?
Obamacare, Obamacare, Obamacare. Thank God Bernstein is around to at least interject some Israel talk….
April 2, 2010, 9:54 amnoahp says:
Since primary care providers would be competing for your business the word would get out on those that do a lot of unnecessary testing just like the word gets out on auto repair shops. It would make primary care more attractive…nothing like an open hopefully honest on the spot transaction.
April 2, 2010, 9:56 amJeremy Patrick says:
Dude, that’s a long very lawyerly way of evading the question. Do you think the things on the list are constitutional or not? Nobody asked what the current state of mainstream legal authority is on the question (this we already know!).
What do YOU think?
April 2, 2010, 9:59 amAnonsters says:
LOL. Amen.
April 2, 2010, 10:01 amcboldt says:
– It is emphatically the province and duty of the judicial department to say what the law is. –
April 2, 2010, 10:03 amAll good teachers would urge, “Read on.” If you got that far and stopped, you missed important material in the 100 words or so that followed.
Anonsters says:
Notice that later on in the quoted bit, Marshall calls the conflicting legislation and constitution “conflicting rules,” meaning that the constitutional rule is a rule, as well. Then read the part I re-quoted above.
April 2, 2010, 10:06 amMick says:
It seems to me that the argument for the constitutionality of Obamacare is simply a) through (d) are constitutional because they stand for the proposition that Congress may regulate without limit matters touching on the economic welfare of the American citizenry. Obamacare touches on the economic welfare of the American citizenry. Therefore, Obamacare is constitutional. Of course, those precedents were not established (explicitly at least) on affirming the proposition stated above. Therefore, another argument is needed by its supporters, and, as Kopel has so ably noted, may not be forthcoming from the precedents.
April 2, 2010, 10:10 amcboldt says:
– I did receive a tax break at the end of the year –
April 2, 2010, 10:11 amThat’s the reduction in payment due that I was referring to, not the payment due on your loan.
If a deduction is the same as a penalty, then provide a deduction, and avoid the argument of those who object to a penalty line. If this is similar to home loan deduction, then make the tax code in a parallel style.
Cornellian says:
But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.
If that is the case then why isn’t the individual mandate a “necessary and proper” appendage (à la McCullough & Raich) to the rest of the statute, since you conclude (correctly I think) that the rest of it is squarely within existing Commerce Clause precedent.
You spend the whole post considering the constitutionality of the mandate in a vacuum without considering how it relates to the rest of the overall statute.
April 2, 2010, 10:14 amneimoller says:
maybe he will have a post on how hrw conspired to have an anti-semitic element to “obamacare”. of course, he won’t say anti-semitic directly so he can self-cite his and his cohorts’ posts on how critics of his style like to proclaim that they’re called anti-semites.
one can hope.
April 2, 2010, 10:19 amFloridan says:
Noahp: But of course you worry that you might need gallbladder surgery or one of your kids might break a leg so your incentive would be to shop around and to resist unecessary tests, prefer generic drugs, etc.
Does anyone believe this is possible? Not the way medicine is practiced today. Beyond the absurdity of calling around doing price checks while your 10-year-old soccer player is on the ground writhing in pain, the fact is that hospitals could not tell you what your final bill will be.
If you think this is a viable method to reduce health costs, you can test it by calling a couple hospitals in your city and asking how much they charge for a gall bladder operation. Sure, you might be able to get some historical data, but that says nothing about an individual case, nor would most people be competent to interpret the data.
The reality is that the free market does not operate in most areas of medical care.
April 2, 2010, 10:20 amU.Va. Grad says:
It seems to me that the more interesting question isn’t whether we think (a)-(d) are constitutional in 2010, but whether, if we had been in Owen Roberts’ place on the court in 1937, we would have thought them constitutional then. That looks like a better parallel to whether Obamacare is currently constitutional.
April 2, 2010, 10:20 amArkady says:
Right, sorry, my bad. Don’t think it injures my argument, though.
April 2, 2010, 10:22 amneimoller says:
there is a serious information problem here that needs to be addressed. i don’t know if the solution is some kind of results/efficiency based compensation for doctors, but i have no idea how an average consumer is expected to figure out the risk-benefit profile of various cures and come up with his choice of treatment plan.
April 2, 2010, 10:22 amShelbyC says:
Well, somebody’s got to figure it out, right? You think your congressman is going to to a better job than the mom?
April 2, 2010, 10:23 amnoahp says:
Basically health costs are driven by people expecting care to be free. If they go to the doctor and demand an MRI they will probably get one if their insurance will pay for it. There was an interview with Gary Becker (Nobel winning economist) in the WSJ. He points out that Switzerland spends 11% of GDP on healthcare but its not “free”. Out of pocket costs are 31%. Here.its more like 12%.
Democare aims to reduce out of pocket costs. Will most likely exacerbate the problem of overutilization in my view.
Anecdote alert: I was having a knee problem. I didn’t have insurance but I am a vietnam war vet so I went to the VA to see what was what. In modern orthopedic practice an MRI would likely been ordered especially if I had insurance. Because I had too many assets they would not treat me even if I agreed to pay! So I did nothing and the pain went away in about 2 months. (Probably “joint mice”).
T
April 2, 2010, 10:24 amDavid M. Nieporent says:
Actually, there is no “national market.” That was one of the reforms proposed by Republicans during the debate — to allow people to purchase insurance across state lines — but it was resoundingly rejected by liberals who think the only good regulation is More. So insurance is local, not national.
It’s a good argument, but it’s not the one being put forth here. The argument is that it exceeds the constitutional powers of the federal government. (Remember, the federal government is supposed to be one of limited powers; one doesn’t need to find something a law “infringes” on in order to declare it unconstitutional.)
The argument is that telling me to buy insurance is not regulating interstate commerce in insurance. It’s regulating me. And Congress doesn’t have the power to regulate me under the commerce clause; it only has the power to regulate interstate commerce. I am not interstate commerce.
April 2, 2010, 10:27 amcboldt says:
– Don’t think [insisting on a tax penalty] injures my argument, though. –
April 2, 2010, 10:29 amI put those “insisting on a tax penalty” words in there, they aren’t yours, but that’s the focus I’m intending for those who say the home loan tax law is parallel to health care tax law.
Again, if the “voluntary mandate” is removed, and all that appears is a tax deduction for health care, then you have a perfect parallel with home loan deduction. I’ve not heard a con-law objection to the home loan income tax deduction (not that there isn’t one, just saying), making obtaining the social goal through the tax mechanism of voluntary purchase (home/health care) and tax carrot uncontroversial.
David M. Nieporent says:
Charity.
April 2, 2010, 10:31 amnoahp says:
Another facet of my plan is that doctors and hospitals and pharmacies would be required to post prices. And there would be federally sponsored community orgs which would gather info about the medical community and dessiminate it to the public.
I have been thinking about this problem for years. The fundamental problem is the “third party payer” coupled with our desire to care for the poor,
April 2, 2010, 10:36 amneimoller says:
this gets into philosophical territory about moral luck and desert, what a society owes its members, and whether you believe rawls pwned nozick when they duked it out on this issue. i don’t think there is much meeting ground for people who believe that their membership in the lucky sperm club (as buffett puts it) is deserved and hence justifies their position not to be required to assist those not as lucky.
April 2, 2010, 10:36 amneimoller says:
how are people expected to decide what treatment they should take? it is a near-hopeless undertaking.
April 2, 2010, 10:38 amnoahp says:
Another important book is “Moral Minds” the thesis of which is that there a fundamental human moral code that transcends culture and religion (caveat being that we treat our tribe better than others). I used to be Nozickian but in light of this books I am more a Rawlsian.
The problem is how to fulfill our fundamental moral impulses and avoid bankruptcy at the same time.
We were already doomed. Democare just speeds it up a bit.
April 2, 2010, 10:51 amcboldt says:
– The problem is how to fulfill our fundamental moral impulses and avoid bankruptcy at the same time. –
April 2, 2010, 10:59 amThe solution is war.
neimoller says:
honestly, without getting into ideological territory, i think a britain style nhs scheme is the best balance between helping those who cannot afford health care and cost management.
April 2, 2010, 10:59 amSteve says:
Well, somebody’s got to figure it out, right? You think your congressman is going to to a better job than the mom?
No, I think it’s mostly the doctor’s job to figure it out. There are way too many informational difficulties to make “shopping around for healthcare” into a feasible model.
April 2, 2010, 11:01 amnoahp says:
As things stand now in medicine, you can’t really trust your doctor. Obama slandered doctors with bullcrap about unnecssary tonsillectomies and foot amputations. But it is pretty bad. Doctors are most assuredly human beings and that means rationalizing their actions in terms of their own self interest. The view now commonplace that medicine is just a business has not helped.
April 2, 2010, 11:02 amneimoller says:
this is why some sort of remuneration/reward scheme based on results instead of procedures could help. of course, this has its own structural difficulties – specifically, how do you measure results indexed to the level of difficulty of the original case? but i’d hope some reasonably principled solution here is possible.
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April 2, 2010, 11:08 amneimoller says:
ridiculous strawman alert. there is no situation where “your congressman” is making the call. not under “obamacare”, not even under the british nhs!
April 2, 2010, 11:10 amNick D. says:
Just so we’re clear on your interpretation of the taxing power: Congress can impose a tax for the failure to purchase any product.
Several issues arise out of this interpretation. The first is the breadth of power such an interpretation entails. The second is whether a taxation can functionally become forcing if the taxation levels are high enough. The “taxation” for failure to purchase health insurance was set at a level designed to force people to purchase health insurance. Unless you allow for some inquiry as to the motivations behind the tax, you are left with a Congress that functionally has the ability to require the purchase of anything. Ah…, actually, not just the purchase, they could require you to do anything.
Under this interpretation, they could tax the failure to perform 40 hours of community service each year, the failure to exercise, etc.
April 2, 2010, 11:10 amDavid M. Nieporent says:
1) Sure there is. The concern is that people will wait until they develop an illness before purchasing insurance, thereby saving the premiums and still getting the benefit of coverage for that illness. If Congress simply implements a delay in the pre-existing condition coverage requirement, then that incentive disappears. (That is, if you have a pre-existing condition, you can buy insurance just as healthy people can, but the coverage for the pre-existing condition doesn’t kick in for, say, a year. That way, you won’t be able to wait until you develop the illness because you won’t get coverage for that illness; if you want to be sure that you’re covered, you’ll need to have bought it in advance.
April 2, 2010, 11:13 am2) When you say that it won’t “work,” what you mean is that it won’t accomplish what Congress wants. But so what? The Necessary and Proper Clause is not a power to repeal the laws of economics. If a law won’t accomplish what they want, then it won’t. The N&P clause is the power to implement valid laws, not to pass substantive new laws just because the old laws are dumb. Otherwise, the N&P clause overrides all limitations on federal power.
Sarcastro says:
Nick D. is right. There need to be some limits! Social Security means Congress could take all your money and give it to old folks, we should end it! The Government could set speed limits at like 5 MPH, so speed limits are Unconstitutional!
Except for when the President is torturing or locking up bad folks. No limits there, cause Security!!
Furthermore, these limits have totally been exceeded by this new law! $750/950 bucks is a level designed to force people to purchase health insurance.
April 2, 2010, 11:18 amDangerMouse says:
This quoted comment above, I think, basically captures the general lib argument in favor of Congressional regulation. Anything you do affects commerce, they say, so anything you do can be regulated. It is an argument without limits.
Ask a lib if there is anything that Congress cannot regulate or if it would be unconstitutional to regulate. The only answer they’ll tell you is “abortion.” Everything else under the sun is up for grabs.
If the Court is stupid enough to sustain Obamacare, then it won’t be the end, but the beginning. Notice, also, the implication in Shag’s post that mere life and living involves economic activity. Critics of Obamacare are correct that the mandate is a tax on being alive. Libs regulate economic activity by regulating life and living. And it has greater implications for government control of our lives in the future. Sarah Palin wasn’t exactly far off in her discussion of Death Panels.
April 2, 2010, 11:25 amDavid M. Nieporent says:
You mean to tell me that you’ve never heard of getting a second opinion?
April 2, 2010, 11:25 amnoahp says:
My plan would create a bottom up system and would force primary care doctor’s to compete for patients and give them an incentive to actually be doctors rather than glorified triage nurses. I was on the inside for over 25 years. I contend that I actually know what I am talking about.
Out of the box thinking is what we need. Single payer is not the answer. The UK NHS is in dire straits. When people quote stats about satisfaction you have to remember that most people are not sick!
April 2, 2010, 11:27 amdiptekosede says:
Anyway, David wasn’t citing that case as an example of strict construction, he was explicitly disclaiming any appeal to strict construction. He was citing it as an example of the Court ruling to defend state sovereignty.
April 2, 2010, 11:29 amdiptekosede says:
Anyway, David wasn’t citing that case as an example of strict construction, he was explicitly disclaiming any appeal to strict construction. He was citing it as an example of the Court ruling to defend state sovereignty. diptekosede
April 2, 2010, 11:29 amChris Travers says:
Wickard provides dicta suggesting it would have been Constitutional for Congress to mandate wheat purchases by individuals. While this isn’t quite the same thing as standing for the proposition, it’s worth coming to the conclusion that at least some courts in our history would likely have upheld such a mandate.
What’s interesting regarding Wickard in this context however is that nearly every decision based on it (including Raich) has read it fairly narrowly. In fact the court’s view of Wickard as portrayed in Raich is a fairly narrow holding, i.e. that the concern was that Wickard might decide to sell his wheat on the interstate market (while most of Wickard was addressed much more at the fungibility of the wheat, i.e. that by producing his own wheat for his own consumption, Wickard was distorting the market). Raich seemed to stand for this narrowing of Wickard, i.e. that the real concern was that intrastate medical marijuana growers would start selling their products interstate and that this would make enforcement of proper regulation far more difficult.
So I am interested in your comment as to why narrowing Raich would be necessary. Could you elaborate more on this?
April 2, 2010, 11:30 amSarcastro says:
Word. The Constitution demands single payer!
April 2, 2010, 11:33 amJoseph Slater says:
Two points. First, in this hyperpartisan age, I extend my hand across the aisle to Brett Bellmore (whose politics seem to be different than mine) to form a bi-partisan movement to denounce the use of “incent” and even “incentivize,” and to encourage the use of “encourage” and similar real and less ugly words.
Second, this is definitely going to be the most awesome line I read on a blog today:
this gets into philosophical territory about moral luck and desert, what a society owes its members, and whether you believe rawls pwned nozick when they duked it out on this issue.
April 2, 2010, 11:34 amcboldt says:
– they could tax the failure to perform 40 hours of community service each year –
April 2, 2010, 11:34 amThey already can, or at least the states can, if the community service is road repair.
– If Congress simply implements a delay in the pre-existing condition coverage requirement, then that incentive disappears. –
And the issue of people having uninsured health problems, exactly what the pre-existing coverage clause aims to cure, would persist.
Steve says:
You mean to tell me that you’ve never heard of getting a second opinion?
Sure I have. I think it’s ridiculous to suggest that people can seek out a second opinion for every medical expense (is the second opinion supposed to be free?) or that a second opinion conclusively resolves the issue of whether a given procedure is necessary. Eventually you’ll figure out there’s a reason why virtually no one wants to shop around for health care.
April 2, 2010, 11:34 amSarcastro says:
No speech, no assembly, establishing churches all over the place. The libs in DM‘s world sure do seem awful!
April 2, 2010, 11:36 amAnonsters says:
So does your mom. Therefore your mom is the Constitution. And stuff.
April 2, 2010, 11:36 amChris Travers says:
I have a number of policy objection to the current bill including:
1) It is a recipe for rapid increase in health care costs.
2) It doesn’t address the fundamental issue with our current system, namely in the insulation of the individual from cost-based decisions.
3) Has been inaccurately portrayed in substantial ways. For example, despite hyping the problem of retroactive cancellation of policies as a problem, the law in this area is substantively unchanged….
I have more complaints about proposals for a public option (and I think it would be a bad idea on policy grounds) but think it is more defensible Constitutionally than what we have here.
April 2, 2010, 11:41 amjuandos says:
“In my view, (a), (b), (c), and (d), are constitutional“…
Then one could easily come to the conclusion that Dave Kopel’s grasp of the Constitution is at best questionable…
Can Kopel find anything in the Constitution that mandates the federal government steal from the productive so some politicos can pander to the parasitic?
Maybe Kopel should refresh his memory about the questionable way the socialist nanny state program was foisted off onto the productive so that FDR could push his progressive agenda…
FDR was a disaster for the United States
April 2, 2010, 11:43 amSmack says:
Simple enough to refute: It is the difference between your examples which involve choosing to engage in a regulated activity and the mandate for health insurance which, based on the requirements of the law, are incident to federal citizenship. Same as always…its the difference between choice and compulsion.
April 2, 2010, 11:44 amnoahp says:
Some months back there was a primary care doc that wanted to promise primary care including first tier radiological procedures and laboratory tests for a flat annual fee. The State of New York shut him down claiming it was an insurance scheme. But the real reason IMO is the medical community does not want price competition.
April 2, 2010, 11:47 amAlan S. Blue says:
The amazing thing is how minor the necessary changes for things like the personal insurance mandate would be.
If the mandate was instead just a substantial tax credit for “head of household with insurance” or whatever – absolutely no new ground would have been broken. It would – functionally – end up being identical.
Except for the tiny little detail of setting new precedent.
April 2, 2010, 11:49 amStephen Lathrop says:
Read “Constitution’s Structure” = “right wing bias” and you have the substance of the argument.
Seems like an attempt to dragoon in a federalism argument where none ought to be required—or seems particularly relevant. Purely on a federalism basis this layman can’t see much to distinguish Obama care from much else that has previously passed muster.
The novelty of the mandate, and its implications for commerce, seems like the obvious focus point. I can easily see this becoming a case defining an outer limits for the commerce clause.
Just because this Court has shown a predisposition to privilege federalism above the substance of issues in previous arguments does not mean that arguing federalism is a principled way to proceed. Not that it might not work. I don’t think you ever risk losing much money by betting against principled decisions from this Court’s majority.
April 2, 2010, 11:56 amCousin Dave says:
I can’t believe that anyone is seriously trying to make an argument that the Commerce Clause grants Congress authority to mandate that individuals must purchase a particular product, regardless of what activities they choose to engage in or not. Tell me: if this is true, then what powers does Congress not have? Is there any power or authority prohibited to it, other than those that the Constitution expressly takes away (e.g., speech restriction)?
April 2, 2010, 11:57 amDangerMouse says:
Read up on the libs’ newfound love of the fairness doctrine for a take on how much they care about the First Amendment. And libs have no problem destroying churches via lawsuit or regulation, as any homosexual marriage supporter would know. In their place, they’ve established the sin of carbon emission and the penance of carbon offset, which they want to impose nationwide. Don’t kid yourself that these are anything other than their new religion.
April 2, 2010, 12:01 pmFloridan says:
noahp: Some months back there was a primary care doc that wanted to promise primary care including first tier radiological procedures and laboratory tests for a flat annual fee. The State of New York shut him down claiming it was an insurance scheme. But the real reason IMO is the medical community does not want price competition.
If the physcian takes the money up front and promises a scope of care in the future, it sounds like he is offering an insurance plan. Of course it could be a scam, with the doctor taking the money and running of with it. Or it could be that the MD is serious, but a poor businessman and three months later he is bankrupt.
Seems to me the State of NY has an interest in regulating this type of offering, and that consumers would want it to.
April 2, 2010, 12:02 pmAnonsters says:
Oh, DangerMouse. How you do troll.
April 2, 2010, 12:04 pmShelbyC says:
Well, no, he’s offering services for a flat fee. Portions of this may be similar to an insurance plan, but just because an arrangement involves risk-shifting doesn’t make it insurance.
April 2, 2010, 12:08 pmChris Travers says:
There are two fundamental questions here:
1) Is this a proper exercise of federal power any more than, say, national building codes (or land use codes) would be. After all, how many houses are built entirely with in-state goods? How many possible uses of land (even just transporting people to the land) that doesn’t impact interstate commerce? Is the commerce power really a blank check?
2) Is it necessary to address the pre-existing condition issue at all? There is a lot of debate about this, and I have known folks with diabetes who had some issues switching jobs but were able to do so nonetheless. Given that there is a lack of concensus, who decides? Personally I think it would be a great opportunities for states to experiment…..
Of course, Europeans have cost-controls on pharmaceuticals too so the corporations shift costs to US people, driving our costs up at the drug store. I don’t think we should allow exports of products or patent licenses to developed countries where the drugs would have to be sold, by law, at a lower rate than they would be sold in the US.
Nah. I am a fan of banning those who are not injured from suing doctors. No damage caps, but have state-appointed boards of doctors and lawyers weigh in during dismissal and summary judgement hearing, and during trials at the plaintiff’s expense. The board would give neutral, expert testimony (not bought by either side) as to the question of whether the injury was linked to the alleged unprofessional mistake. The goal is to ensure that the set of those who sue for malpratice intersects with the set of those who suffer from malpractice a bit more than is the case at present.
I think Montana now does something similar.
I agree with the issue of permitting interstate insurance purchases. This creates a huge vacuum of authority which the federal government would need to step into. IOW, allowing interstate insurance purchases would lead to Obamacare (and this was a major reason I voted against McCain, though not the only one).
As for a mandate, I don’t doubt at all that a state could issue such a mandate. But it is it a proper exercise of a federal power? Furthermore, the bill places tremendous burdens on states regarding Medicaid coverage and the states are currently struggling anyway. I see this as making a lot of the problem worse.
But there are two other major problems which need to be addressed though:
1) There are no effective cost controls build into this bill which are relative to pre-reform rates. Consequently, we should expect insurance companies to drastically increase their rates so as to avoid any risk that the other elements include, as well as a general concern about unforeseen risk in the process itself.
2) The insurance companies, with much higher premiums, will be required to pay out 90% of the premium they collect or reimburse their customers. The emphasis here will be on paying out because the insurance companies will make more money by paying out much larger sums. This means that it will be in the interest of such a company, towards the end of the year, if they are running short of payouts, to pay for care well outside what they are contractually required to cover.
The combination here means that instead of reining in costs this will accelerate the increase of health care spending, and the federal government will be obliged to pay for it with even higher taxes.
I will offer a few solutions:
1) Many states require that when a person transfers from one insurance to another, pre-existing conditions are covered. Maybe that’s a great idea. I think so….
2) WE NEED TRANSPARENCY. If I take my car to the shop, they legally have to give me an estimate before doing work on the car. Now, with emergency medical care, that’s not necessarily possible insofar as it involves emergency stabilizing care, but we should require estimates, with insurance billing codes to be provided otherwise prior to work being done. We should also require insurance companies to post “customary and reasonable” rates for their billing codes publicly, and to furnish printed copies to policy holder on request. IOW, if cost is a problem, we should stop abstracting individuals from it.
3) I would be in favor of a limited public option, covering preventative and routine care only.
I think states are quite capable of enacting the above. However what we have from Congress and the President today is nothing more than corporate welfare at its worst.
April 2, 2010, 12:10 pmnoahp says:
He was an established physician and says he knew what his costs were and that he could actually save a ton in overhead. But I agree that it has an insurancy feel. OTOH you can join a golf club and play to your hearts content and pay no additional greens fees.
April 2, 2010, 12:11 pmBenjamin Davis says:
Another tack is to impress on the AG’s of the states that this tack will not get them or their governor reelected.
Just because insurance interests can get a law to pass in their state does not mean that federalism is threatened by Obamacare. It is insurance interests who are threatened, not federalism. Whether the Supreme Court will play games like the early Supreme Court in the New Deal period striking down FDR’s efforts to get the country back on its feet, will be something to watch for. I hope that Obama does not have to get to the point of threatening a “Court packing” plan to impress on this Supreme Court the importance of what is being done and its constitutionality.
I also find it interesting how the moniker Obamacare has been developed on this. In the 60′s I do not remember when Medicare was created that anyone called it Johnson Care. It was more “Great Society Program”. Obamacare is one more way – perfectly permissible but also insidious – of making this thing be perceived as being “other” or “non-American” while leaving to the side what are the benefits in the bill for the average American citizen.
American citizen like me.
My son will be able to be on my insurance now (well in about six months) even though he is over 19. That means that, as he was adopted in France and in France I am responsible for him until age 26 whether he is in school or not), I can more easily cover the insurance aspect of his costs than if we had had to buy a Cobra for him.
When he was dropped by the insurance last year, I had a back and forth with the employee benefits people about this and how I was to comply with my obligation under French adoption law. Now, with the law on my side, I can provide for him in a less expensive way. And, if he gets something between now and September, he can not be refused for a preexisting condition.
This provides great peace of mind.
Best,
April 2, 2010, 12:12 pmBen
theBuckWheat says:
An associate had a face to face meeting yesterday with Sen. McCaskill. He tell ms that when asked about the Constitutionality of the health care bill she just voted for, she said that this issue was tested after the passage of Medicare.
Can anyone comment on that?
April 2, 2010, 12:14 pmDangerMouse says:
No, there are no limits to their power – except, of course, if you try to limit abortion. Let’s play a little game here:
Would it be constitutional for the U.S. government to mandate a 1-child policy like China, in any manner possible?
Would it be constitutional for the U.S. government to mandate that all people must wear blue hats?
Would it be constitutional for the U.S. government to mandate that all cars purchased in the future should be GM cars?
Would it be constitutional for the U.S. government to mandate that anyone performing any service at all cannot deny their services to someone on the basis of being a Democrat, and only a Democrat? (ie: it’d be legal to refuse services to any other political party)
Would it be constitutional for the U.S. government to mandate that states, as a condition of receiving federal money, must have all governors appointed by the President?
Would it be constitutional for the U.S. government to order churches to perform gay marriages, whether or not they are tax-exempt?
Would it be constitutional to for the U.S. government to create a draft which only targets members of a political party, like Republicans or Libertarians, sending them off to war while others are not drafted?
Would it be constitutional for the U.S. government to make it a federal offense to “cause harm” to any elected official or bureaucrat, defining “harm” as “the telling of intentional lies”?
I submit that all of those actions would be sustained by most liberals these days. Every single one. They are statists above everything else.
April 2, 2010, 12:14 pmJoe says:
Tell me: if this is true, then what powers does Congress not have? Is there any power or authority prohibited to it, other than those that the Constitution expressly takes away (e.g., speech restriction)?
I’ve never really understood this argument. It’s quite easy to uphold the mandate (or any other compelled purchase that is part of the interstate commercial markets, for that matter) with the holdings in Lopez and Morrison, which are the current limits on Congress’s Commerce Clause powers. (To make a long story short: The decision to purchase — or not — health insurance is an economic one, and Congress has a rational basis to conclude that it is essential to regulating the interstate health insurance market, so it can pass laws affecting such an economic decision. I’m not saying that this is correct, by the way, just that it is entirely feasible that a court would hold in such a manner.)
In that case, what would Congress’s Commerce Clause limits be? Well, the same ones that exist today. It must be legislating in the context of some broader commercial regulatory framework. Whatever the narrow aspect of the law being challenged is must have some economic flavor. (Note: Scalia would not go this far, but the rest of the Raich majority *probably* would.) The narrow aspect of the law being challenged must be essential to that broader regulatory purpose. And so on according to Lopez and Morrison and Raich.
I mean, I understand a few professors who are much smarter than me have written something along these lines, but frankly, I really don’t get how saying that Congress can compel a purchase of goods sold in the interstate market erases all limits on its Commerce Clause powers. It really strikes me as either inappropriate hyperbole (probably in the professors’ case), or a real, fundamental lack of understanding of current Commerce Clause jurisprudence (laypeople).
April 2, 2010, 12:14 pmzuch says:
Despite conservative scorn of the “penumbras and emanations” phraseology (due, I suspect, to disagreement with the outcome of one case they despise), the phrase is actually of much less recent origin in jurisprudence.
Cheers,
April 2, 2010, 12:18 pmShelbyC says:
Nor is the Mom, by herself, making the call. It’s your strawman, buddy.
April 2, 2010, 12:19 pmVercingetorix says:
This is the dumbest trial balloon I’ve read all week.
Hey, renters are not criminals. Dropouts from health insurance ARE criminals, under this law.
That’s the difference, geniuses. One of the many, many, many differences, at least. Go fish.
April 2, 2010, 12:20 pmpecosbill says:
I pay more “taxes” as a home owner than a renter if you also consider local property taxes (and permits, maintenance and my feeble attempt at generating “sweat equity”). Most homes in my neighborhood have to be multi-family to generate kind of profitable rental income – so each individual renter pays very little of their share in the expenses. Family to family it’s no contest now who’s paying less. The mortgage interest deduction doesn’t make up the difference (it’s also temporary as the interest gets paid down, no more deduction when the principle kicks in). But I choose to do this because I like to own my own home, or I want to pass something paid off to my kids or even maybe hoping that it turns into a decent long term investment, which is up to me to decide if I ever want to “cash out”. Then of course there are capital gains taxes… any “incentive” is and can only be judged by me and weighed against my personal situation.
I don’t see how it can compare to the Heath insurance mandate. But of course I’m comfortable paying the penalty (which is less than a full policy), visiting the emergency room if need be and only getting insurance if I get sick since there isn’t any pre-condition holding me back. I’d say that’s a net positive for me! Add that to my “mortgage deduction” and I’m sitting pretty in Obamaland.
April 2, 2010, 12:21 pmAnonsters says:
Dude, you so caught me.
I am, I confess, a Blue Hat Nazi.
Mea culpa, mea culpa, mea maxima culpa.
April 2, 2010, 12:21 pmzuch says:
You should have. I can deduct such expenses. That you didn’t is your mistake, not the gummint’s.
Cheers,
April 2, 2010, 12:22 pmAnonsters says:
Except that H.R. 3590 as enacted and signed into law expressly prohibits the imposition of criminal penalties for those who refuse to buy health insurance as mandated.
But, given your extensive knowledge of the bill, you knew that.
April 2, 2010, 12:24 pmOctavian says:
A while ago, I was out of work for a short time because the small law firm I was associated with went out of business. COBRA was not available and my wife was in the middle of fighting breast cancer. I went to Blue Cross Blue Shield of Michigan and was signed up for $300 per month premiums with a $5000 annual deductible despite the wife’s pre-existing condition.
Unlike many others who place a higher priority on fancy cellphones, cable TV, designer clothes, a new (leased) car every couple years, etc., than on purchasing health care insurance, I made damn sure to make paying for health care insurance a higher priority versus keeping up with the Joneses who look to the government for a handout to maintain their unsustainable lifestyle.
So, in answer to the questions above, my answers are: 1) I do now through an employer, but had to purchase it myself for a while when I was between jobs; 2) since the age 24, I have never been without health insurance because if my employer did not provide for it, then I paid for it myself instead of looking to the government for a handout; 3) your question is moot for the foregoing reasons.
April 2, 2010, 12:24 pmFloridan says:
ShelbyC: Well, no . . .
Well, yes. A definition of insurance: an “equitable transfer of the risk of a loss, from one entity to another, in exchange for a premium, and can be thought of as a guaranteed and known small loss to prevent a large, possibly devastating loss.”
The doctor is not publishing a fee-for-service chart and letting people choose the procedures they might want and then pay for them when they receive treatment. Rather he is asking his patients to pay a specific amount up front to prevent larger payment(s) in the future. He is banking on some patients using fewer services than what they paid for to offset the higher level of services that others will receive.
April 2, 2010, 12:26 pmMoneyrunner says:
I live in Virginia. My doc provides primary care for a flat annual fee. No insurance filing, no insurance payment. And he has never recommended a procedure for purposes of generating added revenue because under this system, there is never any added revenue for more visits, procedures, or for less.
This is the future of primary care medicine for all except the indigent. They will be served by recent med school graduates who have yet to make their mistakes and will practice on their patients until they get it right.
It is also the future of investment advisors, something with which I am also intimately familiar.
April 2, 2010, 12:26 pmnoahp says:
Plus the mandated mental health/substance abuse coverage could break the bank all on its own. No greater scam has been devised by the mind of man.
April 2, 2010, 12:28 pmAnonsters says:
Was it Holmes who emanated the penumbra thing?
April 2, 2010, 12:28 pmzuch says:
You’ll have to descend into the mire of Freeperville or WhirledNutzDaily to find it though, as that’s the only place it exists.
Cheers,
April 2, 2010, 12:29 pmJonathan Baxter says:
If these people persuade enough of their fellow Americans, perhaps the Court might eventually narrow or overturn some of the precedents which uphold (a) through (d)
I’ve always thought the constitution is the only thing standing between individual rights and the tyranny of the majority. Are you claiming the Supreme Court is free to reinterpret anything in the constitution provided public opinion is on its side? I hope you are wrong. That would be a truly depressing state of affairs.
April 2, 2010, 12:30 pmneimoller says:
they are not criminals. they just pay a tax. there is a difference.
April 2, 2010, 12:33 pmzuch says:
Would it be constitutional to demand that DangerMouse be sterilized? “One generation of imbeciles is enough”.
Cheers,
April 2, 2010, 12:34 pmneimoller says:
i’m not your buddy, pal. and since i didn’t create that strawman, it seems like all you can do is make up a lie to defend your other lie.
April 2, 2010, 12:35 pmneimoller says:
tsk tsk. the color of communists is red.
April 2, 2010, 12:36 pmShelbyC says:
OK, now it’s your strawman, buddy.
April 2, 2010, 12:37 pmMoneyrunner says:
You do recall which white racist made that comment, don’t you?
April 2, 2010, 12:37 pmVercingetorix says:
So the bill gutted its own ability to collect its own fines, therefore it isn’t a fine. Hey, everything’s fine now! Uh huh.
April 2, 2010, 12:38 pmMoneyrunner says:
I wonder, can anyone of you brilliant legal mind tell me? Can people who refuse to pay their taxes be sent to jail?
Just wondering because I have heard this particularly stupid argument before and it struck me then, as it does now, as being so moronic that it defies belief.
Do I need to remind anyone that Al Capone was convicted of tax evasion?
April 2, 2010, 12:42 pmneimoller says:
Aside from the fact that i have no idea what this means, your inability to engage with your dishonesty that “your congressman” has anything to do with picking treatments is telling.
April 2, 2010, 12:42 pmyankee says:
Color me unconvinced. Your theory seems to be that when a case is used as precedent in a case involving virtually identical facts, it is being “applied,” and otherwise it’s just a plea for “extension” and the case cannot be controlling. I don’t think this theory is tenable, since it amounts to an extreme form of legal realism in which precedent almost never decides anything.
I think it makes much more sense to say that a precedent is being “applied” when there is no relevant difference that makes the rule of law announced in the precedent inapplicable. The fact that the Affordable Care Act’s mandate isn’t the same as the situation announced in Wickard isn’t enough to establish that the differences between the ACA and Wickard are relevant.
Also, this theory about applications vs. extensions goes both ways. On your own terms, there is no precedent that can be applied to declare the Affordable Care Act unconstitutional, because Congress has never enacted an individual mandate before.
I’m also a bit lost about the connection between the mandate and “federalism.” The states’ argument about federalism is that the new requirements attached to the Medicaid program amount to commandeering because it’s not practical to withdraw from Medicaid. That’s an argument they can make, but it doesn’t really implicate the ACA’s mandate, which is about the relationship between individual citizens and the federal tax code and has nothing to do with the states.
April 2, 2010, 12:46 pmRPT says:
“Don’t get sick. But if you do, beg quietly.”
Thanks. Comments like these are revealing because they illustrate the moral divide. The commenter will probably never acknowledge—much less refuse—all of the collective entitlements of which he is a willing recipient.
April 2, 2010, 12:49 pmChris Travers says:
Renters get to pay extra tax under this law though because over time, the rental rates will factor in the inclusion of medicare tax for that income.
April 2, 2010, 12:49 pmneimoller says:
yes. people who refuse to pay a tax are criminals. but the mere fact of dropping out of health care makes nobody a criminal.
this is like saying the mere fact of not having a child makes people criminals.
April 2, 2010, 12:50 pmJoe says:
I can’t believe that anyone is seriously trying to make an argument that the Commerce Clause grants Congress authority to mandate that individuals must purchase a particular product, regardless of what activities they choose to engage in or not
They are not mandated to do so. You are mandated to go to jury duty, serve in the militia or have your child educated. A tax (which also pays for various other things in the law) is not available as an alternative.
I also can’t believe anyone really thinks you could avoid this. For instance, you would have to not be in a federally regulated means of employment, including one that depends on that (e.g., if your job requires the efforts of an industry covered, you are getting direct benefits, and can be taxed to help keep their insurance secure). The fact is that most people already have insurance anyways. We are dealing with a thin group of people, people who in most cases fall under clear federal control without much heavy lifting at all.
No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product,
Federal law requires commercial vehicles traveling in interstate commerce to carry at least $750,000 of insurance for bodily injury and property damage. I assume the law was at some point submitted to judicial review. So, what are you talking about?
or may use the tax power to punish people for choosing not to purchase a particular product
I don’t find the distinction made here anything more than heavy-handed formalism, no matter how much heavy lifting is attempted by some. There are tax deductions for the purchases of various products. Your tax rate is therefore higher if you don’t buy them. The “mandate” can be restructured fairly easily (to little real effect imho) to do this in a crystal clear way. That is, your income or something else (any number of excise taxes possible here) can be taxed $695 [to cover various things constitutionally provided for in this law] and you will get a $695 deduction for health insurance. It would be a line on one of those schedules.
So, what in the heck is the point here?
April 2, 2010, 12:50 pmMoneyrunner says:
Forcing people to pay for your medical procedures is so much better than asking politely for help.
April 2, 2010, 12:51 pmMoneyrunner says:
No, it’s not at all like calling childless people criminals.
Bit it would be like that if you were forced to pay a tax for not having children, refusing to pay that tax and then going to jail for tax evasion. You see the difference don’t you?
April 2, 2010, 12:55 pmAnonsters says:
Yeah, don’t bother reading the actual bill, just imagine what you think it provides! It makes the debate much livelier!
April 2, 2010, 12:55 pmSection 5000A(g):
neimoller says:
thanks, i think :)
April 2, 2010, 12:56 pmcthulhu says:
Very simply, if it is unconstitutional to force a person to submit to a certain type of healthcare, how can it be constitutional to force a person to pre-fund the care?
The government has intentionally muddied the line between healthcare, health insurance, and medicine to derive some sort of “right” out of commerce, but fundamentally it comes down to “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. If you have the right to control your body as you see fit — and I’d argue that the fourth amendment makes this plain — then you have the right to choose which healthcare you would desire and contract for it.
In that the government’s plan is for “comprehensive health insurance”, rather than “catastrophic health insurance”, they are not really talking about “insurance”, as such, at all — rather it is a pre-funding plan. In other words, it is what healthcare you are going to have, rather than what healthcare you might have. Mandating that people participate in such a funding plan interferes with their ability to choose and contract for the healthcare of their choice.
April 2, 2010, 12:56 pmneimoller says:
you realize there is a tax deduction for children, don’t you?
April 2, 2010, 12:57 pmMoneyrunner says:
So, Anonster, there are no penalties for failure to pay the fine. So the bill nullifies its own penalties? Are you that naïve? Pull the other one.
April 2, 2010, 12:59 pmAnonsters says:
BTW, for the legal eagles out there. How does one actually go about citing this sort of thing? Because it was § 1501 of H.R. 3590, but it added § 5000A to Subpart D of the Internal Revenue Code. So would I cite it as § 5000A(g), or as § 1501?
(I know, I should know these things by now. But an answer would be helpful. :P)
April 2, 2010, 12:59 pmAnonsters says:
I’m sure there are other ways they can get the money out of you.
Criminal sanctions just aren’t one of them.
Or do you think the bill’s text doesn’t mean what it says?
April 2, 2010, 1:01 pmSmack says:
Seriously?
If your gonna troll at least bring your “A” game. I find it ironic that you quote Griswold in an attempt to bash conservatives. Ironic because the penumbras and emanations in that case led to LESS GOVERNMENT INTERFERENCE. Less government is anathema to conservatism right? Furthermore, that language can cut both ways: Who is the oracle-like arbiter of these penumbras and emanations? I mean some of the language of the constitution would appear to give Congress near limitless power…is that a penumbra and emanation? Of course, there is this other language in the constitution that appears to retain an immense amount of power for the states…is that a penumbra and emanation? If the latter is, it would seem to cut against the holding in Griswold, would it not? Penumbras and Emanations have no measurable, quantifiable, or even ascertainable standards. The effect is to give the individual judge immeasurable control over the subject of the litigation: crap in, crap out.
April 2, 2010, 1:01 pmMoneyrunner says:
You realize there is no penalty for not having children, don’t you? Or for being a widow, or widower, or for being divorced?
April 2, 2010, 1:01 pmMark Jones says:
Jonathan, what makes you think that isn’t NOW the depressing state of affairs?
Congress long ago slipped its constitutional leash (with the connivance of the judiciary). The plain words of the constitution on numerous issues are routinely “interpreted” into meaninglessness. It’s counted as a victory of sorts these days when the court DOESN’T just blatantly trample a restriction on government power. Heller, for instance. The court didn’t just blatantly give gun owners the finger; they got a mealy-mouthed, grudging admission that “shall not be infringed” means “…at least not without some kind of figleaf first”.
The federal goverment, intended to be one with specific, enumerated powers and no others, has become in practice of a government possessing any power it chooses to exercise with a few specific exceptions…if and when the court feels like enforcing them.
April 2, 2010, 1:02 pmneimoller says:
huh? i just told you there is – you lose on the deduction that you could have if you had children. so you pay additional taxes because you did not have children. if you are trying to hang your hat on the distinction between a deduction and a penalty for this purpose, a distinction without any difference, as it should be clear, well, then, good luck to you, sir!
April 2, 2010, 1:04 pmMoneyrunner says:
You were the one who posted the part of the bill that reads that there are no penalties for failure to pay. Don’t go soft on me now. Tell me how they can “get the money out of you” and then tell me what the penalty is if you don’t comply.
Or is the citation something you picked up on the internet in defense of the bill?
April 2, 2010, 1:10 pmSmack says:
Anonster, because you seem to have your gray matter flowing today, I have a question for you:
Suppose I live in a state that, by state constitutional provision, provides that there are to be no debtors prisons (i.e. you cannot go to prison for debt). Does this, therefore, mean than I will not got to prison for not paying my debts?
I think this question is relevant given the language of the IRS Code and bill you are citing as they seem to be attempting the same thing as the restriction on debtors prisons.
BTW, in case you are wondering, the answer is NO…you will go to prison for not paying your debts even in a state where debtors prisons are outlawed by constitutional provision. What happens is that there is thing called the law and we all have to follow it or someone takes us to court. In this case, civil court. The judge then issues a ruling to the effect of: “Hey moron, you have this debt and you haven’t paid it…PAY IT!!!” Continuing on with the previous course of action (not paying the debt) means you are now violating a court order and will be sent to prison for contempt of court(a criminal sanction). So, effectively, debts can and often will turn into criminal sanctions…even when the law or state constitution say otherwise.
April 2, 2010, 1:16 pmRPT says:
MD in chief Coburn has spoken about how he orders unnecessary tests for his own protection. Is he a good example?
April 2, 2010, 1:17 pmChris Travers says:
Wear blue hats? Or buy them from major companies? If the mandate is Constitutional, the government could certainly require that we purchase said hats. I am not sure it could require that we wear them…..
April 2, 2010, 1:17 pmcboldt says:
– … the distinction between a deduction and a penalty for this purpose, a distinction without any difference, as it should be clear … –
April 2, 2010, 1:17 pmThen propose to structure the health care bill the same way. Deduction for having insurance. Problem resolved.
ShelbyC says:
Of course, if the deduction had been created for the express purpose of forcing people to have children, no constitutional problems there, right?
April 2, 2010, 1:17 pmMoneyrunner says:
Huh? Back to you.
I doubt that you really do not understand the difference between a penalty and a benefit. No one is that dense.
Oh, yes, Liberals who view people being able to keep more of their money (tax reduction) as a cost to the government. I find that kind of perspective as statist and rather perverse, but if it makes you happy I can’t do anything about it. But it does force you to view people’s money as being first and foremost the property of the state and the part that people have direct control of (what the state allows them to keep) a gift of the state.
Regards
April 2, 2010, 1:19 pmSuperSkeptic says:
This is a red herring. I don’t think this is really the moral divide. As the nod toward charity shows, we all want sick people to be healthy (sans sociopaths, etc.).
The moral divide is more this, to me:
Rule of Law v. Moral Change. (also a good indicator of liberal/conservative divide).
See the comments of Brett Bellmore on this and on Professor Kerr’s recent “a-e” thread.
But see also:
April 2, 2010, 1:23 pmcboldt says:
– if the deduction had been created for the express purpose of forcing people to have children, no constitutional problems there, right? –
April 2, 2010, 1:23 pmAccording to some of the health care law proponents, neither the tax penalty nor the tax deduction amounts to a mandate or force. There is no use of government compulsion to purchase health insurance. My suggestion is to accomplish the non-compulsory objective with a method that encourages, by a carrot, the desired behavior; and that follows the pattern of the home loan and child deductions. All the threats of litigation vanish simply by adopting this change, which amounts to “no change,” if you believe deduction v. penalty is a distinction without a difference.
Chris Travers says:
This is a good example of the sort of transparency we need. I think prior to ordering a test, the doctor should clearly discuss with the patient 1) what they are looking for, 2) why, 3) what the results of test results could mean, and 4) what a rough estimate of chances of finding something bad during the tests are. The testing company (now often separate from the doctor’s office) should also be required to provide an quotation on the cost of running the test, as well as relevant insurance codes that the patient can use to verify coverage with the insurer.
If the patient doesn’t get the ordered test, that’s the patient’s choice. We should trust patients to make this choice, not encourage them to avoid the choice because cost shouldn’t be a factor.
This would allow the doctor to order the test for his own protection, but allow the patient to decide that he/she doesn’t need it. Right now, patients are not in a position to make that choice.
April 2, 2010, 1:24 pmneimoller says:
is this a milder version of dangermouse coming to troll? i guess that since both facts and arguments have deserted you on this count, you are reduced to banging on the table. don’t hurt yourself.
April 2, 2010, 1:25 pmChris Travers says:
The penalty is a tax penalty.
If you are honest on your tax returns and this results in you having to pay the IRS, and your refuse, they can simply take what they assess you owe. I doubt they could throw you in jail if you filed honest tax returns though and did not take steps to avoid seizure of your assets. IANAL though.
IOW, they can just come and take your money and if necessary your house and car…..
Last I checked, forced collections of taxes owed was not the same thing as tax evasion and was not a criminal matter.
April 2, 2010, 1:32 pmChris Travers says:
Monetary penalties, interest, and forced payment. No criminal penalties unless you lie to try to get out of it.
April 2, 2010, 1:35 pmVercingetorix says:
You know, I know that you’ve chosen this particular hill to die on, but you really out to fall back a few hundred meters.
You are implicitly agreeing with us that Congress does not have the ability to mandate compulsory coverage for every citizen in the US.
You insist that the ‘fines’ or ‘taxes’ are actually denominated in monopoly money, so the law doesn’t really criminalize anything. In fact, the whole argument is screwed: Congress is really mandating incentives (of some kind) and making helpful suggestions, NOT mandating purchases within state markets.
But does your point still stand if the fine is in real money and real criminal charges? Hell no, it doesn’t.
It doesn’t matter if the liability assessed is in cash, liens, jail time, gold stars, hugs or goats.
Congress cannot criminalize inactivity. I’m not a criminal because I didn’t tackle a mugger or bank robber. You’re not a criminal because you didn’t buy health insurance.
Twist, contort, spin, quote and get all airy-fairy, but you are not making your case. This is law. By definition, people who break laws are criminals. If you break this law, you are a criminal, by elementary definition.
You might not be a murderer, you might not be punished. But so what? You’re still a criminal. And nowhere in the Constitution or commonlaw can you derive this extraordinary federal power.
April 2, 2010, 1:44 pmDan says:
That doesn’t make any sense. The only way people without insurance become “free riders” is if they themselves can’t pay for the medical care they end up receiving. If you take $750 from someone, they then have $750 less to spend on medical care. So they become “free riders” $750 earlier than they otherwise would have, and medical providers get stuck with an extra $750 of unpaid bill.
If the government used ALL of the fines to reimburse hospitals and doctors for their pro bono expenses, you could argue that the fine neither hurts nor helps the “free rider” problem. Since the government is, in fact, keeping the money to spend on other things, the net effect of the fine is to make the people who pay it MORE of a burden on the medical industry than they already are.
April 2, 2010, 1:53 pmJ. Aldridge says:
Modern public dialogue takes it cue from unconstitutional court holdings. What you are really approving of is a living constitution.
April 2, 2010, 1:53 pmneimoller says:
were you this upset about the deduction for children?
April 2, 2010, 1:54 pmBrett Bellmore says:
Ah, yes. That would be why the radiation oncologist told me I should get chemotherapy instead. It was a way of maximizing his income.
April 2, 2010, 1:55 pmCousin Dave says:
“They are not mandated to do so. You are mandated to go to jury duty, serve in the militia or have your child educated. ”
There is no federal law that mandates me to do any of those things. Yes, there are state laws. And if I don’t like them, I am free to move to another state that has different laws.
April 2, 2010, 1:57 pmSarcastro says:
See, if you don’t have insurance, and then figure out what the fine is, and then underpay your taxes by that amount, and then wait long enough, your wages will be garnished!
PUNISHMENT!
Say your were wrong, libs!
April 2, 2010, 1:58 pmJoseph Slater says:
neimoller: I meant that comment as sincere praise!
April 2, 2010, 1:58 pmVercingetorix says:
Is that the best you have?
Do you you get your monthly bills mixed up with your paycheck?
“Hey, honey, check this out! GMAC is paying US for our car and our mortgage! What a country!”
Deductions are not fines. Thus endeth the sermon.
April 2, 2010, 2:12 pmMoneyrunner says:
The Liberal fall-back position is the ad-hominem attack. But just for the ones who were not paying attention, I was referring to the term of art that is part of the congressional glossary known as “tax expenditures.”
May I quote?
There is an undeniable implication in this term and it’s this: that allowing you to keep part of your money is a boon granted by the government for the purpose of furthering its interest. A corollary is that the government is the best judge of how your money is to be spent and that if the government sees a better way of spending your money, it has a right and an obligation to do so.
This is the rationale for creating the socialist welfare state. If you disagree with this formulation, feel free to do so using reason and logic. But juvenile taunts are not persuasive although they do satisfy a basic urge to strike out.
April 2, 2010, 2:13 pmPunchy Sandoval says:
I have to agree with Hauk’s comment. I see a lot of people as setting up a strawman by referring to the health insurance “mandate.” It’s not a mandate. It’s a tax incentive. Details matter.
April 2, 2010, 2:13 pmTracy Johnson says:
Oooh, oooh, I have an idea!
Would not the requirement for health insurance be considered involuntary servitude?
Parallel example:
Other laws that require say, purchase of motor vehicle insurance presume the driver also needs a license to drive a motor vehicle.
Would not a law that requires purchase of health insurance imply that the purchaser also needs a license for health, in other words a license to live?
(For the record, I’m writing fiction here.)
April 2, 2010, 2:13 pmneimoller says:
it really seems like the debate about this has reduced to ridiculous nitpicky semantic differences.
thanks again.
April 2, 2010, 2:14 pmChris Travers says:
I dunno if I agree with that. Microsoft (a legal “person”) was found to be in violation of the Sherman Act in a civil suit initiated by the DoJ. But that doesn’t mean that Microsoft engaged in criminal behavior, just in unlawful behavior for which the company was held liable in a civil context. Hence one cannot say that Microsoft is a “criminal” and that undermines your definition.
Look, I agree that mandating the purchase of a product is not only deeply unwise, but also outside of Congressional power (this would be opposed to a public plan option that, although unwise, would be within Congressional power). However, if a law does not allow for criminal sanctions, those who break the law are not criminals.
April 2, 2010, 2:18 pmcboldt says:
– it really seems like the debate about this has reduced to ridiculous nitpicky semantic differences. –
April 2, 2010, 2:19 pmIf they are merely semantic differences, why not advocate to modify the law to provide for a deduction instead of a penalty? I would think the health care proponents would be eager to conform the law to suit the critics, where the conforming act makes no difference in outcome.
Cousin Dave says:
“In that case, what would Congress’s Commerce Clause limits be? Well, the same ones that exist today. It must be legislating in the context of some broader commercial regulatory framework. Whatever the narrow aspect of the law being challenged is must have some economic flavor. (Note: Scalia would not go this far, but the rest of the Raich majority *probably* would.) The narrow aspect of the law being challenged must be essential to that broader regulatory purpose. And so on according to Lopez and Morrison and Raich.”
What I want to know is: what are the real, tangible limits on Congress’ power under the Commerce Clause? There sure don’t appear to be any to me. Yes, you have to engage in some legislative sleight-of-hand in order to exercise that power, but no court in my memory has called Congress on the carpet as long as it goes through the prescribed language rituals, none of which pose any real barrier to the exercise of that power.
Let me give you a relevant example: As part of the health care reconciliation bill, Congress just passed a statute making private student loans illegal. From now on, only the federal government (and a handful of well-connected banks in the districts of powerful Congressmen) may engage in the commerce of student loans. This was in a health care bill. What do student loans have to do with health care? Nothing. So what gives Congress the power to ban loans between private entities?
Well, if anyone ever challenges it, the courts will doubtless rule that the Commerce Clause gives Congress the authority. Even if none of the loans are made across state lines, some of the students who receive them travel and spend the money across state lines, and that makes it interstate commerce, doesn’t it? And hey, by that definition, in this day and age, what isn’t interstate commerce? Nothing. You buy some product made locally? Well, some of the parts or ingredients probably came from another state. Or the company that made them may have loans from out-of-state banks. Or some of the people who bought the product took them across state lines.
This expansive definition, long since court-approved, was the nose under the camel’s tent. So much so that no one will bother to challenge the student-loan ban in court, because they know they will lose. Face it, under this definition, Dangermouse’s hypothetical about banning couples from having more than one child would easily pass a Commerce Clause test. In fact, that could easily be wrapped in as a cost-control measure under Obamacare. (It might fail on some other constitutional ground — my bet would be on a First Amendment case involving exercise of religion — but a Commerce Clause challenge would be a non-starter.) We keep harping on this because, face it, the Commerce Clause as currently interpreted is a blank check. The SC is about to have to make a history-turning decision: if it upholds the individual mandate, then the concept of enumerated powers has been overturned, once and for all. It will be an acknowledgment that Congress’ powers are infinite, save the handful of things that the Constitution expressly takes away from it. There is no branch of the federal government that has an interest in returning to what one might call an “originalist” interpretation of the Commerce Clause. All three branches have found the current interpretation to be in their own best interest. Remember: no government body ever, ever gives up power voluntarily.
Here’s a challenge: Name me one single case, anytime since FDR’s time, in which any federal court has rejected a Congressional assertion of Commerce Clause authority.
April 2, 2010, 2:20 pmChris Travers says:
I had better fix this for my Congressmen:
April 2, 2010, 2:21 pmSarcastro says:
I always knew economics had a liberal bias! Incentives through tax breaks are clearly socialist!
April 2, 2010, 2:21 pmRPT says:
This is your typical “free market” health care opponent:
By Amy Gardner
Washington Post Staff Writer
Thursday, April 1, 2010; 2:50 PM
FROG JUMP, TENN. — But for one important detail, Stephen Fincher could be a perfect “tea party” candidate: a gospel-singing cotton farmer from this tiny hamlet in western Tennessee, seeking to right the listing ship of Washington with a commitment to lower taxes and smaller government. The detail? Fincher accepts roughly $200,000 in farm subsidies each year.”
No doubt he supports “charity” for the rest of the unsubsidized sick and uncovered.
April 2, 2010, 2:26 pmChris Travers says:
I’m interested in this claim. Can you provide a page citation? I would like to see it. Did the bill ban private parties from reselling federal loans? Or did it ban all private agreements to fund education?
(You have to admit that regardless of merits, Sen. Alexander’s comments about the federal government deciding to take over the federal student loan program sound absolutely stupid….)
April 2, 2010, 2:32 pmneimoller says:
yes, for criticism of substance.
April 2, 2010, 2:36 pmVercingetorix says:
I can see that, Chris, and I’m sure there are many other fine graduations of angelic choirs on this particular pinhead. Point taken.
On the other hand, though Microsoft was held to be in violation without ‘criminality’, I assume that if Microsoft did not correct its behavior or pay the fines, they could face additional penalties up to and probably including criminal indictments, isn’t that right?
I’m sure the DOJ isn’t going to send a battalion of lawyers to Redmond to put their hands on their hips and wag their fingers and say “Oh, you guys, you really got us this time, shame shame shame.” No, if Microsoft didn’t put out, something [bad] happens to them. (Though I don’t know much about that case, to come clean.)
So your observation does undermine my (admittedly generic) point, but only so far.
April 2, 2010, 2:37 pmChris Travers says:
I guess I am an atypical free market health care opponent…..
April 2, 2010, 2:37 pmHeur says:
All very nice, but it simply begs the question. If the mandate is within the Commerce Clause, and not violative of due process, then it clearly does not upset the structure of federalism set by the Constitution, since the Constitution itself, including the Commerce Clause, defines that structure.
Central here is the intuition that forcing a purchase is significantly different than other forms of regulation. Underlying that intuition is the sense that other forms of regulation have a greater element of consent involved-one can choose not to engage in the regulated conduct-than a mandated purchase, where one cannot opt out.
That’s a fine intuition. It’s certainly true in many cases. But it has nothing to do with the constitutional question of permissible regulations. Regulations need not include any element of individual consent.
April 2, 2010, 2:38 pmDavid M. Nieporent says:
Rawls was humiliated, but actually, “desert” is something of a red herring; the fact that one is “lucky” does not justify redistribution. We’re all lucky to have two working kidneys, and we certainly didn’t do anything to “deserve” them — but that surely doesn’t justify forcibly transferring one of them to someone with no working kidneys. (Does it?) (If luck doesn’t equal desert, then need surely doesn’t.)
The problem is, your/Rawls’ argument relies on two claims:
1) If you got something through luck, you don’t deserve it.
2) If you don’t “deserve” it, then it’s legitimate to take it from you and give it to someone else.
Neither of these claims are obvious.
April 2, 2010, 2:42 pmzuch says:
You’re going to tell me that it was conservatives, and not Planned Parenthood, that were pushing for the free availability of contraceptives, and statist lib’ruls that wanted the nanny state to tell people how many kids they should have? You have a rather peculiar definition of “conservative”.
And it is without a doubt the conservatives that continue to ridicule the “penumbras and emanations” language (due, I think, to the very factors I pointed out).
Cheers,
April 2, 2010, 2:42 pmcboldt says:
– yes, for criticism of substance. –
April 2, 2010, 2:43 pmNo, I don’t mean just for purposes of criticism. If a deduction is equivalent to a penalty, and the objectors base the objection on the presence of a penalty, then the proponent should change the law, not just the discussion, change the law (or advocate changing the law) to be in the form of a deduction. No penalty, no compulsion, just a nice fat deduction (or better yet, tax credit!), just like home loans and child tax credits.
jrose says:
Seems like you are arguing there isn’t even a rational basis for believing the mandate makes effective the pre-existing regulations. That doesn’t sound right to me.
April 2, 2010, 2:43 pmneimoller says:
Yes, Cousin Dave. I too would be very interested in the actual part of the bill that justifies your claim, as it does not square with my understanding of the relevant part at all:
April 2, 2010, 2:44 pmDavid V says:
THIS! Wow. Please tell me if you blog or write anywhere. Your ideas are applied law to Prof. V’s theoretical law. Both very impressive.
A small piece of criticism- lay off insulting people at thier level. I disagree with Mr. Kopel and believe that he is overly indulgent of using terms like ‘Obamacare(tm)’ (remember we had Hillarycare(tm) a while back- which they are now morphing in to ClintonCare(tm)- but that is for another time) and he does toss around Federalism quite a bit (even though Madison changed his views so much that the second party he started made the Federalists disappear mainly because their views were impractical to running a government for the land that was ‘least bad’.)- these are considerate views of a person and they do deserve respect even if it is not reciprocated. Lowering yourself to that level… you know the rest.
April 2, 2010, 2:46 pmneimoller says:
this is the shortest piece of fiction i’ve ever read.
April 2, 2010, 2:47 pmChris Travers says:
I do not believe that would be the case on a strictly formal level. I.e. I do not believe that the trial record from a civil case would be entitled to be accepted without litigation in a criminal case. A criminal investigation would have to be entirely separate and probably relate to other issues.
Instead they would have faced ever-escalating civil liabilities up to and including forced divestiture of parts of the company. This is really rare though. In most divestiture cases (including AT&T) the divestiture is decision which is made by the company in order to avoid living under the terms of the consent decree (i.e. previous settlement). AT&T, for example, broke themselves up in order to be allowed to get into the market for computer systems, software, and data networking which they couldn’t do under previous antitrust settlements. Indeed the only example of a court-ordered break-up of a company that I can think of is Standard Oil.
April 2, 2010, 2:48 pmjrose says:
Under the first line of reasoning in this post, probably. But under the second line of reasoning, no.
April 2, 2010, 2:49 pmneimoller says:
I’d recommend rereading Rawls to understand his point before discussing it. Thank you.
April 2, 2010, 2:49 pmVercingetorix says:
This is not a subtle distinction here, though, chief.
We can get into the nitty-gritty semantics – when is a hole in the ground like a pile of dirt? Whoa, dude, I think the acid just kicked in, man. We could. Life’s too short, but we could.
Or we can just use common sense:
You pay into a 35% bracket. You have kids, deduct your kids, voila you pay 32%.
I pay into the 35% bracket. I don’t purchase health insurance. I pay 38%.
These two arithmetic operations are obviously not the same. Why aren’t they? Lots of reasons, but they aren’t the same, at the end of the day.
April 2, 2010, 2:52 pmHeur says:
This is wrong. Rawls certainly doesn’t claim that if A is acquired by John by luck, then John does not deserve A. You’re confusing that claim with the claim that “the acquisition of A by John, by luck, does not imply that John deserves A.” Rawls agrees with the latter claim, not the former.
But we digress.
April 2, 2010, 2:53 pmthomas says:
I have been wondering about two additional constitutional arguments against Obama care. The first is a tax bill originating in the house rather than the senate. I understand that the senate took a house tax bill pertaining to Armed Services members, scraped the language and title of the Bill, and replaced it with the Senate Obama care bill. I know that it is not unprecedented, but can’t the courts see this clearly as a circumvention of the Constitution? I doubt there is even a single line left of the original House text, except the number of the bill.
Second is how abortion rights to privacy precedents apply. Social conservatives may not wish to go down this road and affirm those arguments, but don’t they apply. If individuals have a right to see a doctor and have this medical procedure without the governments interference, why don’t they have the same right to every other procedure without the government or insurance companies’ interference, or sharing of private medical records. I assume that the mandate requires individual, by threat of fines, to share their medical records with insurance companies. No?
April 2, 2010, 2:55 pmneimoller says:
I agree with you. It is not a distinction at all.
April 2, 2010, 2:56 pmChris Travers says:
One other point about this is that the slap on the wrist that Microsoft got is something of a cursed mark. Not only was Microsoft found to be civilly liable this provides a record of fact, which due to various legal doctrines, Microsoft would generally be estopped from relitigating in a civil context, and which could be used by competitors to sue the company for monetary damages. In practical terms, this means that the barrier to sue Microsoft for unfair, anti-competitive practices got a whole lot lower. Ralph Nader criticized the settlement saying it would take an army of lawyers to enforce it, but that is not a problem in reality since the free market will provide those lawyers at no cost to the government. Indeed Microsoft has had to settle a number of anti-trust suits during and after that case to avoid that problem getting a whole lot worse in a hurry.
Microsoft could of course defy the courts, allow the courts to issue judgements granting damages to competitors, and thus run their company into the ground. If they did, each competitor would face a lower barrier to sue than the last, and the legal environment would eventually tear the company to pieces. Criminal law would really be irrelevant.
April 2, 2010, 2:57 pmVercingetorix says:
I’ll defer to you on this. If this falls into civil law instead of criminal, that’s fine – it’s actually good to know to sharpen the knives.
Though I’m not sure I’d like to see an individual someone forcibly divested into parts. :/
April 2, 2010, 3:03 pmVercingetorix says:
Deductions = fines. Roger that.
Wow.
April 2, 2010, 3:04 pmMRB says:
The comments here while thought provoking fail to look ahead.
One of the protections of the Constitution is a repeatable measure to hold the government to over the centuries. When you allow the Congress to have power they never were able to use before – you can’t put the genie back in the bottle with ease.
By saying the Commerce clause means whatever they wish it to – it becomes a tool for future tyranny. The folly of supposed safety as Franklin well stated by giving up liberty is a slippery slope to ruin.
I will ask this simple question: Can the same result in healthcare be done without creating an individual mandate? Can we provide coverage to uninsured yes – via Health savings accounts – similar to this:
http://online.wsj.com/article/SB10001424052748704231304575091600470293066.html
Once you understand uninsured can be covered and not through a mandate – how about those with pre-existing conditions? It is not insurance to cover something after the fact. It is social welfare, so let’s get the terms correct. This can be accomplished just as expensive injuries in auto accidents is covered in Michigan. Normal insurance covers you in Michigan through $475,000 of expense. Once you reach the threshhold of $475,000 you go into a pool called MCCA (Michigan Catastrophic Claims Association – http://www.michigan.gov/documents/cis_ofis_mcca_25093_7.pdf)
This is funded by a small surcharge to every insured to spread the expense of the few seriously injured. This idea would easily be applied to the Pre-existing condition folks.
If this care can be provided without a mandate – why impose it?
April 2, 2010, 3:12 pmMoneyrunner says:
Why are most members of the Left, even the ones who have so many nice things to say about European socialist governments (to say nothing of the socialist governments in the rest of the world) so vehement in their denial that socialism is what they would like to see in the US? Obama has ridiculed those who call his take-over of certain industries as a manifestation of a move to socialize the country. And commenters on this board also hold up to ridicule the idea that the implementation of certain polices, such as socialized medicine via either the transformation of insurance companies into government regulated utilities, or a single payer health care system, is one aspect of a socialist society.
April 2, 2010, 3:17 pmDenial and ridicule are the two weapons that I have seen used. I’m curious what the motivation is. Is it fear that the majority of Americans reject socialism or is it a genuine belief that programs of this kind are not part of a socialist evolution?
MRB says:
Also let’s expand this. Since we can force you to buy a governemnt product – Healthcare – can we not force you to buy a government product Automobile? The government controls 2 auto companies and since they can say we do not mandate you to buy a car as you don’t HAVE to drive – but if you do drive you must buy our car. It is for the benefit of taxpayers you do so as the people own the companies.
April 2, 2010, 3:18 pmInThisDimension says:
Maybe one of you can explain why the legislated inequality of Congressional staffers and others who are NOT mandated to buy Obamacare, is NOT a violation of equal protection and the 14th?
Thanks.
April 2, 2010, 3:19 pmjrose says:
That’s a policy question for the political branches to hammer out. So long as the mandate is reasonably adapted to a legitimate end under the Commerce Clause, it is constitutional even if there are alternatives.
April 2, 2010, 3:19 pmInThisDimension says:
… because this is not now, nor has it ever been, about healthcare. If it were, Congress and the Pres would participate.
April 2, 2010, 3:22 pmAlpheus says:
I currently have health insurance–for the last two years, I’ve purchased it with money I earned, and now I’m in the process of transferring to employer-provided health insurance–but the longest I’ve been without health insurance is probably four or five years, when I was a college student. I would have purchased health insurance if I could have afforded it, but at $350 a month I was not able to at the time.
I am certainly glad that I wasn’t forced to purchase health insurance during this time, because I would not have been able to afford it! Since I’ve had experience with health care in England, I certainly would not want to have been forced onto government health care, and I especially desire that government–both state and federal–would get out of the way of health care (by getting rid of Medicare and onerous regulations). This is one big reason health care is expensive today.
Obamacare (yes, I’ll call it that, because Obama pushed for it, and ultimately signed it into law) will only make health care more expensive, for similar reasons.
April 2, 2010, 3:28 pmSyd Henderson says:
So neither the Militia arming clause nor any cases provide precedent for the unprecedented mandate to purchase insurance. At best, the mandate is in a constitutional gray zone. To resolve the gray zone question, we are not limited to wondering whether to greatly extend some prior cases on the interstate commerce clause or the tax power. In addition, we can consider the structure of the Constitution itself.
In July, 1798, “An Act for the Relief of Sick and Disabled Seamen,” authorized the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance. This was done by withholding part of the sailors’ wages. How is that not a precedent?
April 2, 2010, 3:36 pmChris Travers says:
I don’t currently. My insurance company was rejecting a fair number of claims relating to my wife’s most recent pregnancy, and then they increased their premiums by 50% from one month to the next, so we discontinued the coverage. You can buy a fair bit of health coverage for $1300 per month…..
We will get insurance again when we can afford it but probably get the minimal policy allowed just because the only reason to have it is for coverage of catastrophic illnesses or injuries.
April 2, 2010, 3:36 pmAlpheus says:
Actually, in addition to being fined, you are imprisoned (or potentially subject to imprisonment) if you don’t buy health insurance, according to Obamacare’s terms. If this isn’t “compulsion”, then I suppose the fine and possible imprisonment that can result from driving wrecklessly is “incentive” and not “compulsion”.
Furthermore, I find it hard to believe that, once convicted of not having health insurance, having that on your record isn’t going to affect your employment, or produce shame!
April 2, 2010, 3:40 pmChris Travers says:
Howso? You owe additional taxes. The IRS can seize money from your bank accounts, but failure to pay is not by itself tax evasion, right?
April 2, 2010, 3:46 pmHyphenated American says:
A few quick notes. Firstly – can any supporters of “forcing people to buy medical insurance is allowed by commerce clause” explain what the federal government can NOT do? In other words, can they envision anything that in their mind is not covered by the commerce clause?
Secondly, someone said that because Obamacare is not financially sustainable without forcing people to buy insurance. All right – but then you cannot claim that ANY government behavior is constitutional because it helps some type of legislation. If you agree with that – then warrantless wiretapping is consitutional because it helped US government to keep us safe.
April 2, 2010, 3:46 pmSarcastro says:
I think you misspelled “Tax evasion.”
April 2, 2010, 3:47 pmHyphenated American says:
Chris:
A fine for not having medical insurance is not a tax – so said the greatest constitutional authority of all times, Barack Obama…
April 2, 2010, 3:48 pmMRB says:
Nancy Pelosi tried to use this tack and I see you have stuck to tried and true talking points.
It also could be said – what if I buy a house, car and other toys that I am legally obligated to pay for. But I find a job I like better or want to open a business but can’t afford to pay for all of these things in the new job – that means I should get free stuff?
When is it the responsibility of the INDIVIDUAL? Our coutry was founded on individuality and the power of that spirit to create a free society. You now ASK for a master when for 200 years and much blood was shed to remove the shackles of a King in England you bow to a King in America? That is the entire point of the Constitution and the protection it provides is to not allow the government to vote itself King.
April 2, 2010, 3:50 pmHyphenated American says:
Sarcastro:
A fine for not having medical insurance is not a tax — so said the greatest constitutional authority of all times, Barack Obama…
April 2, 2010, 3:50 pmChris Travers says:
I assume you mean this. Can you please point out the wording in that act requiring the purchase of health insurance? This looks like a simple tax for health CARE (i.e. like Medicare), not an insurance mandate. Or am I missing something obvious?
April 2, 2010, 3:52 pmShelbyC says:
Er… it isn’t?
April 2, 2010, 3:54 pmChris Travers says:
I am not disputing that. I am saying it is not a criminal matter. It is a tax penalty. You can’t get thrown in jail for not paying it. You can only be thrown in jail for evading paying it through unlawful means (lying on your tax return, etc).
Yes, I think it should constitutionally be seen as a penalty beyond Congress’s power to enact. No, it’s not a criminal matter.
April 2, 2010, 3:54 pmHyphenated American says:
MRB:
You are the first person I’ve ever seen who claimed that European companies are competitive the US companies. Way to go, comrade!
As for the ways to cut the cost of medical care – I’ve written an article on this long time ago.
How to slash medical costs in 5 easy steps
1. Allow the sale in the US of all medical drugs and medical equipment, which are legal in EU, Canada, Australia and Japan. FDA approval should be optional.
2. Everyone who has a doctor’s license in those countries should be allowed to practice medicine in US. Moreover, US policy must encourage and aid immigration of doctors from those countries to America. Immediate permanent residency to all practicing doctors from developed countries who want to come to the US.
3. Abolish state limitations on minimum medical insurance coverage.
4. Give private doctors and hospitals same protection from lawsuits as the government entities have.
5. Stop the influx of illegal immigrants.
April 2, 2010, 3:55 pmHyphenated American says:
Chris,
It’s not a “tax penalty” – since the fine for not buying insurance is not a tax. That’s what Obama said. Try this again – “this is not a tax”. If not a tax – explain what is this?
April 2, 2010, 3:57 pmVercingetorix says:
MRB, I’m with you. They can tax you for having a car, or not having a car, which car? Who made the car? What’s the mpg? Tax, tax, tax, tax, tax!
Hey, because up = down, left is right, boy equals girl, tax equals credit.
Good question.
April 2, 2010, 4:01 pmChris Travers says:
I know people who have lost their houses for refusing to pay taxes due to principled objections (Quakers opposed to war spending, etc). I don’t know anyone who has been thrown in jail for acknowledging that the tax amount is correct, and simply taking no affirmative steps to pay. I have known people to go to jail for not filing though. IANAL, though.
Making the IRS go to forced collections is not tax evasion. It’s unpleasant in its own right. I wouldn’t want to go through it. but if you don’t mind having your bank accounts frozen, by all means resist.
I doubt the IRS would throw you in jail. Instead they’d just get your wages garnished, car seized, accounts frozen, etc. OTOH, if you start interfering with this or lying to avoid the penalty, or just avoiding filing so as not to lie to them, then you can get in a lot more trouble.
April 2, 2010, 4:01 pmHyphenated American says:
Chris – you keep comparing the fine with taxes – but it’s not a tax – so said the greatest constitutional scholar of all times, Barack Hussein Obama.
So, does Obama have the constitutional power to fine you for not buying a medicala insurance? Again, this is not a tax, it’s a fine.
April 2, 2010, 4:04 pmRPT says:
And thus you are consistent. Not so much for others.
April 2, 2010, 4:07 pmMoneyrunner says:
There have been a number of assertions that only lying about the tax you owe is a crime, failure to pay is not. So if I file a tax return but don’t pay the tax due, I will not be subject to any criminal penalties? So the IRS, I assume, can go after my assets? And if I move my assets out of the IRS’ reach and still refuse to pay the taxes, and the IRS goes to court, I’m free to ignore them? You mean they won’t send people with guns to arrest me? Is that what you mean when you say that failure to pay taxes to the IRS is not a crime?
Al Capone was arrested, convicted and jailed for tax evasion. I wonder if he would have escaped prosecution if he had told the truth but just refused to pay.
April 2, 2010, 4:11 pmHyphenated American says:
RPT:
Why should a Tea Party supporter refuse government subsidies? Explain the logic…
BTW, I am sure you are disgusted with Al Gore – with his huge house, private jets – and demanding the rest of the world to live in caves to save the world. Right?
April 2, 2010, 4:11 pmMoneyrunner says:
The defenders of the silly notion that you can’t be jailed for failure to pay a tax are now explaining that you can only lose your home, your car and your income, but other than that nothing bad can happen to you.
Oh, that’s all right then.
April 2, 2010, 4:15 pmjrose says:
The laws at stake in Lopez and Morrison are beyond the reach of the Commerce Clause.
The fact there is a legitimate federal power to conduct warrantless wiretapping is not sufficient to establish constitutionality. In addition, we must insure the power is not prohibited by some other portion of the Constitution (possibly, the Fourth Amendment).
April 2, 2010, 4:16 pmRoxanna says:
Article I, Section 7 of the Constitution provides that ALL bills for raising revenues SHALL originate in the House of Representatives. There is no getting around the facts that (1) this bill raises revenues and (2) arose in the Senate. It is, therefore, unconstitutional on its face.
I know the left will spin this around, but there’s no way to change the fact that the House voted on the Senate bill, not the other way around.
April 2, 2010, 4:18 pmHyphenated American says:
jrose:
The government cannot take your property – and get to your papers without due process.
Please explain how there is no comparable amount of due process in warranless wiretapping and fine for not buying the insrance….
April 2, 2010, 4:23 pmHyphenated American says:
jrose:
So commerce clause does not apply to guns and sex.
April 2, 2010, 4:26 pmAny way commerce clause does not apply to things beyond sex and guns? Anything to do with property or economic activity?
cboldt says:
– The laws at stake in Lopez and Morrison are beyond the reach of the Commerce Clause. –
April 2, 2010, 4:29 pmThe law at stake in Lopez, the Gun Free School Zone Act, was reinstated by Congress. The revised GFSZ Act has been upheld through at least one Circuit Court.
The struck incarnation of the GFSZ Act required a showing that the gun at issue was in fact in interstate commerce. The new law cures that infirmity, and finds Congressional power (and crime) if the gun “affects” interstate commerce.
Sarcastro says:
Because political speeches are now part of legislative history, and politicians never simplify legal intricacies!
Plus, talking points are the way to argue on the internets.
April 2, 2010, 4:39 pmRPT says:
Well then let’s stop the tea party/conservative/libertarian complaining about subsidies and socialism and government coercion and high taxes and all that. Just get as much subsidies as you can!
April 2, 2010, 4:41 pmRPT says:
Godwin’s Law–Gore’s Law–Ayers’ Law–Rev. Wright’s Law.
April 2, 2010, 4:43 pmMichael P says:
That may be what the law seems to say, but I bet that’s not how it will be interpreted. Suppose I pay all of what the IRS says I should, minus a $N penalty for not buying insurance. The IRS takes the first $N of what I paid and applies it to the individual-mandate penalty. Now I’m short $N for the rest of my tax. Whose side will a tax court take if the IRS wants to jail me for that?
April 2, 2010, 4:46 pmjrose says:
If warrantless wiretapping is unconstitutional, it’s not because of Due Process. It would beecause of the Fourth Amendment.
If the law is directed at economic activity, it would still have to 1) be part of a class of activites that substantially impacts intertstate commerce, and 2) be motivated by the desire to influence interstate commerce.
April 2, 2010, 4:49 pmHyphenated American says:
RPT:
“Well then let’s stop the tea party/conservative/libertarian complaining about subsidies and socialism and government coercion and high taxes and all that. Just get as much subsidies as you can!”
I’ve noticed that you did not respond to Gore’s whining about consumption. I guess you also see nothing wrong with Obama instructing people on how to set air-conditioning – while heating up the White House because he likes it hot. But okay, you had nothing to say, so you kept silent.
But still – why is it that a man cannot simulteniously say that the politicy of government handouts is bad, while keeping his share? Isn’t it like liberals claiming that taxes are too low, but doing their best to avoid taxes? Is it?
April 2, 2010, 4:52 pmHyphenated American says:
Sarcastro:
Obama, one of the authors and promoters of Obamacare, and also a constitutional scholar analysed the legislation in depth (so he tells us) and concluded that a fine is not a tax – no way, no how. Now, how can you dismiss the analysis of this great scholar out of hand? Is this because he is black? Are you racist?
April 2, 2010, 4:55 pmVercingetorix says:
This is an idiotic track. No subsidies, no taxes then. Let’s go further: we should choose which departments should get funded with our tax dollars.
But progressives won’t reduce taxes and won’t reduce spending.
How is it illogical or hypocritical to take home some of the shoddy produce men with guns make you buy? Hell, I bought it. I bought into it. I might not want it. But this rusty POS Trabi is mine, might as well take it.
This is not an argument. It’s a tantrum.
April 2, 2010, 4:56 pmChris Travers says:
To my knowledge (IANAL) there are two major ways to get in trouble for tax evasion:
1) Lie (either affirmatively or by omission) to the IRS about your income or
2) Interfere unlawfully with forced collections.
Why would the government want to put you in jail (where you will not make much taxable income) when they can just take your money and come back the next year for more?
I recognize that this is a distinction with only a minor difference in that the IRS will seize your money instead of throw you in jail, but I am not sure that’s a criminal matter.
Now, there is a real concern though: tax laws may be sufficiently vague that if the IRS wants to jail you for tax evasion, they might be able to REGARDLESS of whether you pay.
April 2, 2010, 4:58 pmChris Travers says:
I agree. I have been complaining about farm subsidies for a long time….
April 2, 2010, 5:02 pmMike O says:
That is irrelevant. The government clearly does not have the authority to mandate that an individual purchase anything.
Firstly, the fact that some go without does not grant Congress authority to overstep its bounds.
Secondly, this legislation will increase costs, not decrease them. Just ask the businesses that are currently cutting their benefits due to increased costs.
Lastly, one of the precipitating reasons that the Founders rebelled against England was the requirement that most official papers carry the King’s stamp. Given this fact you believe that they would have felt that the requirement to purchase insurance would have been fine? That position is unsupportable by anything approaching sound logic.
ObamaCare will be the next Stamp Act.
April 2, 2010, 5:04 pmMike O says:
It is now improper to use the hypocritical and downright idiotic statements and activities of the left against them. They’ve been losing too many arguments lately and have decreed these things off-limits.
Perhaps we should enact the FOX Law…
April 2, 2010, 5:12 pmFloridan says:
Let this wander through the courts for a couple years and then have the SC overturn the healthcare reform bill.
That’s probably the quickest way to get to a single payer system.
April 2, 2010, 5:17 pmChris Travers says:
Incorrect. As Prof. Adler points out the Federal government can clearly mandate that an individual purchase a firearm. The state government mandates that drivers purchase car insurance. The question is not whether “the government” can compel a purchase but whether “the federal government” can compel this purchase.
April 2, 2010, 5:22 pmM. Report says:
I hear there is a pending case,
April 2, 2010, 5:26 pmMoody vs FED, which will affect the
constitutionality of the HCR bill by
making it much more expensive;
How much of an additional financial
burden will the taxpaying voters
tolerate, before they petition
for redress of grievances ?
Mike O says:
Allow me to restate. The commerce clause does not empower the federal government to require an individual to engage in an economic activity against their will.
Auto insurance is in no way analogous to mandated health insurance. The state only mandates that you provide proof of financial responsibility and further, this only applies if the individual chooses to operate a vehicle on state roads where they could cause damage to others’ property. Farm vehicles (including pickup trucks) are exempt from this requirement in many states for example.
April 2, 2010, 5:37 pmChris Travers says:
That’s where you might be committing a crime, though….
April 2, 2010, 5:46 pmMike O says:
You do understand that the reason that the current legislation did not create a single-payer system is that there was no support for it don’t you?
The real issue is a demand problem. Demand far exceeds the supply, hence prices are high. Additionally, the individual has no incentive to monitor expenses because they have no responsibility to pay the bill. Once the consumer is disconnected from payment, they will consume as much as they desire. This is basic human nature and will not change. This is the reason that rationing is inevitable in any single-payer system. The individual will not ration themselves, therefore outside forces must be introduced to accomplish the rationing.
Insurance policy regulation and supply-side reforms are the only way to accomplish the task in any sustainable, liberty-preserving fashion.
The wealthy will always have better treatment than the lower classes. I suggest that people stop worrying about others and improve their own lot in life if they desire.
April 2, 2010, 5:47 pmMike O says:
Fairness Doctrine
Tea Parties
I suppose one out of three isn’t bad.
April 2, 2010, 5:52 pmChris Travers says:
The problem (as always) is that most people would much rather defend a group that tells them what to believe than to think for themselves. Thus the rise of hyper-partisanship in recent years……
April 2, 2010, 5:54 pmRose says:
I am not a lawyer but it is apparently constitutional for the government to take my money and buy things, so it seems they could ask me to buy things and not take my money.
April 2, 2010, 6:21 pmKirk Parker says:
Benjamin Davis,
Yeah, well… get back to me when you can demonstrate that LJB had a personality cult even 1/10 the size of Lightworker Obama’s (you know, the guy at whose election the seas would halt their rise, etc.), and I’ll start worrying about it, OK?
April 2, 2010, 6:32 pmperplexed says:
“jrose says:
“The mandate is in conjunction with laws which regulate how insurance companies treat people with pre-exisiting conditions, and the mandate is necessary to make those regulations effective.”
What you are describing is an entitlement program – not a regulation of commerce. I walk up to an insurance company, with whom I have no previous insurance contract, having just been diagnosed with cancer and demand that they pay 80% of my medical bills. They have no COMMMERCIAL obligation to do so, and in fact would be commercially stupid to comply with my request. Health care and health insurance have until now been commercial transactions, which means that people who want the products have to pay for those products, and if they can’t afford those products, they don’t get them.
But liberals don’t like the fact that health care is provided by commerce – they think it is a right that should be guaranteed to everyone through the government (taxation). But this notion of people having some guaranteed access to health care or health insurance is fundamentally in conflict with the concept of commerce. Commerce is voluntary. Commerce requires a price which regulates supply and demand such that the price of the transaction must be either unaffordable or undesirable to many of those who voluntarily engage in commerce, otherwise there will not be the supply to fulfill the demand.
So instead of implementing their heath care plan through the General Welfare provision as was done with Social Security and Medicare (which would mean the costs of the program would be easy for the public to assess) Congressional democrats are trying to use the Commerce Clause to simply impose an involuntary exchange of money. The law forces insurers to “insure” persons with preexisting medical conditions (an oxymoron) on the concurrent provision that all persons have to purchase insurance.
This is in no sense a regulation of commerce. It is a substitution of commerce with an entitilement program that forces insurers to become state actors, and imposes upon people an obligation to pay the money that funds the entitlement.
One question that arises is that if the Commerce authority is so powerful as to permit Congress to force individuals to pay money to buy a product from another individual, who in turn is required by law to sell it (and again, given the coercive nature of the transaction, the terms “buy” and “sell” lose their real meaning), doesn’t the General Welfare power become superfluous? Congress doesn’t need the authority to tax and spend for the general welfare, they can just pass laws directing individuals to move money around as Congress intends.
April 2, 2010, 7:15 pmShelbyC says:
The pre-existing condition requirement also means that the minimum level of insurance required by the mandate will be the maximum available, as well. Why would insurance companies sell more than the minimum insurance required when a good chunk of their customers would be folks that only upgrade when they get sick?
April 2, 2010, 7:25 pmMalvolio says:
The Federal government can clearly mandate that an individual possess a firearm, which is quite a different thing, and that power (to raise a militia) was enumerated in Article I.
State governments are quite different animals but as you notice, they only mandate drivers purchase car insurance — more accurately, they mandate owners of vehicles possess insurance (you can self-insure if you want to put up $X million) if those vehicles are driven on state roads.
As opposed to health insurance, which is required merely to draw breath.
All those people out there laboring under the misapprehension the health-care mandate is constitutional, any of you care to explain why it would be unconstitutional for the Federal government make it illegal to be fat?
April 2, 2010, 7:32 pmChris Travers says:
That, presumably, depends greatly on what state you live in.
At least here in my state, we have major budget shortfalls because of Medicaid issues anyway. And we provide a state insurance plan for which all children are eligible. So I don’t think the sick kids argument will get much traction.
April 2, 2010, 7:42 pmMalvolio says:
You might want to check the text of the bill. The pre-existing condition requirement may not apply to insurance above the minimum level. (The literal phrase “pre-existing condition” does not occur in the bill relative to private insurance, so good luck in your search.)
April 2, 2010, 7:44 pmRob Mandel says:
Professor Kopel,
I have much appreciated and respected your work on the 2nd amendment. However I, and I am not a con-law professor but rather someone who as a layman has only read the US Const., Federalist papers, and much history and philosophy of that time, must politely disagree that SS, Medi*, et al., pass constitutional muster. Granted, the courts have decided in favor. And granted, courts have overruled previous precedent. I also recall Montesquieu argued the courts should be invisible!!
Anyways, if one accepts the constitutionality of SS, Medi*, et al., then one really must accept the HCR mandate as the same. SS is forced/mandated retirement, Medi* is forced/mandated health. Odd that only public employees are opted out of SS. (actually it’s not odd at all!!)
Once given, taken, or otherwise claimed by the federal government, a power only grows in size and scope. It must and, in reality, it has to. Everything from minimum age laws to family leave and environmental laws go far beyond the scope of the constitution, so far that they fall under the penumbra of “general” powers interpretation, not enumerated.
If such powers were intended, then the resulting government would have been one wholly at odds with the framers and one that without question, would never have been ratified. Saying “I don’t care what the courts have ruled” sounds pedantic and childish but I believe to the contrary.
However, I do not care what the courts have ruled. An areopagus of nine robes does not a republic make. One branch of the government cannot, by fiat, extend the other branches far beyond the scope of the constitution, and in effect amend the constitution. If intended, that too would have been part of the original. As such, it was not. “The court ruled” is no more satisfactory, but rather far more nefarious, an answer. I believe that was Jefferson’s fear, judicial tyranny.
Thanks.
April 2, 2010, 7:51 pmMark Field says:
Jefferson’s concern — and it appears to be yours as well — was that the courts struck down too few laws. That’s not what I’d call “judicial tyranny”; it’s more a case of “judicial nonfeasance”.
“Judicial tyranny”, OTOH, would be if the judiciary struck down too many laws, or if it “legislated from the bench”.
April 2, 2010, 8:40 pmjrose says:
Because it would neither be a regulation of economic activity nor needed to make effective a regulation of interstate commerce, it would not be permissible under the Commerce Clause power.
April 2, 2010, 8:52 pmDan says:
Indeed they do. The details of this particular law is that it is structured as a penalty for noncompliance, not as a tax incentive.
If the Democrats had simply imposed a 1% income tax on all Americans but made the cost of health insurance policies fully deductible from it, that would have been a constitutionally permissible tax incentive. But that would have required the Democrats to admit they just raised everyone’s taxes, and the bill wouldn’t have passed.
In order to pass the bill, they had to structure the law so that failure to purchase insurance resulted in the imposition of a tax. This way, hardly anybody gets taxed since the overwhelming majority of Americans already have insurance. Unfortunately for the Democrats, doing it this way is probably unconstitutional.
April 2, 2010, 8:56 pmGuy says:
Yes, Congress is informed by lobbyists, who are in turn informed by experts, they can achieve the proper balance because their relative strengths in government is determined by free market forces.
April 2, 2010, 9:12 pmGuy says:
Huh? You think it’s unconstitutional to some people’s taxes but not others’, but it is Constitutional to lower some people’s taxes but not others’? What clause(s) or authority do you base that assertion on?
April 2, 2010, 9:17 pmGuy says:
should say “unconstitutional to raise some people’s taxes”
April 2, 2010, 9:36 pmMichael P says:
Pour encourager les autres, of course. Why would the government want to jail any tax evader?
April 2, 2010, 9:36 pmTim says:
Congrats for making the list to all conspirators.
April 2, 2010, 11:11 pmzuch says:
You know, the folks that seem most intent on Obama’s “personality” seem to be the foamers on the right. You know, the ones that care what churches he went to, who he’s supposedly palled with, whether he wrote the books he’s been attributed with and whether he’s a sooper-seekret Moooslim and born in Kenya, etc. And to be honest, it seems to be you folks that seem to think that he’s capable of miracles, like transforming the U.S. overnight to a commie fascist state, rounding up all the firearms, re-educating you in FEMA camps, etc. <*sheesh!*> I, OTOH, have noticed with no great surprise that Obama is just another politician, like anyone else in the business.
Cheers,
April 2, 2010, 11:24 pmFTC ONLY says:
Only the FTC is constitutional. Rest are up to states and individiuals ONLY.
April 2, 2010, 11:39 pmMark Jones says:
Quoted for two reasons.
1. Because I think it’s the clearest explanation yet of what the Congress has done, and
April 2, 2010, 11:48 pm2. To give Perplexed fair warning that I’m going to crib this elsewhere.
Rob Mandel says:
Perhaps. But as judicial review appears nowhere in the constitution, I don’t know that the courts are empowered to strike down any laws “constitutionally”. They do, and no doubt the court is the most powerful branch in the gov’t. I imagine in a roundabout way they can review a law, as their powers (http://www.archives.gov/exhibits/charters/constitution_transcript.html), Art III Sect. 2:
I don’t see review and strike down in there. Now, that does pose an interesting question then. What would prevent an unconstitutional law from being enacted? [Of course I've read Marbury, which did actually fall under original jurisdiction. It should have been adjudicated on a singular basis.] I believe nullification would be one possibility. But there really is no check on a congress AND president acting in concert, although the pre-17th amendment congress was an altogether different beast, when senators were state ambassadors, not members of a national super-assembly.
Now, should a citizen bring suit against the US gov’t over a mandate, I do believe there’s a serious challenge there. In fact, one could make the same the same case for SS, Medi*, et al., as they are all based on compulsion. And I find it hard to believe any serious con-law professor or judge could find the power to compel in the constitution, as taken to it’s logical (and extreme) conclusion, well, one needn’t think to hard to see where that leads.
Although I do know more than a few unserious ones do exist!!
April 3, 2010, 12:00 amKirk Parker says:
Hey, I don’t care what side of the debate you’re on–can’t we all agree that zuch’s reply in #130 was funny? :-)
Cousin Dave: Lopez
April 3, 2010, 12:06 amKirk Parker says:
FIFY.
Chris T.,
Me too.
April 3, 2010, 12:08 amKirk Parker says:
zuch,
I must have missed http://www.my_george_w_bush.com back when it was popular. GMAB.
April 3, 2010, 12:27 amShelbyC says:
wait, that’s a joke, right?
April 3, 2010, 12:52 amneimoller says:
i think you should have enclosed this part of your comment in [...].
April 3, 2010, 2:58 amJoker says:
So commerce clause does not apply to guns and sex.
Then it doesn’t apply to health care either, because health care involves needles.
April 3, 2010, 5:11 amjrose says:
Seems like you are arguing that even without an individual mandate, the regulations concerning pre-existing conditions are not within the Commerce Clause power. This seems plainly wrong to me. The sale/purchase of insurance is commerce. A federal rule that limits who the insurer can turn down is a straightforward regulation of such commerce.
If you are correct, even if Congress replaced the individual mandate with an increase in income tax rates, the law would still not be constitutional. Ditto for a public option that maintains the private-sector regulations. What about single-payer? That would put private insurance companies out of business. Is that OK? Or is the only thing which passes constitutional muster government-run health insurance that leaves untouched whatever the private sector does?
April 3, 2010, 7:58 amjrose says:
I’ve seen this argument a zillion times now. And de jure, it is correct. But in many, many places – such as virtually all of my state of New Jersey – it doesn’t fly. Driving on public roads is a de facto requirement of living.
April 3, 2010, 8:02 amDaedalus Mugged says:
I think what this effectively does is make it a criminal penalty for ~50% of Americans who are actual taxpayers, and non-criminal for the ~50% of Americans who are not. Possibly a violation of equal protection. Here is why:
I am a moderate income person (45% percentile income), I would currently owe no net taxes. I owe a $2000 penalty for not buying health insurance. No crimal penalty applies. I don’t pay, the IRS can’t do anything.
I am a modestly above moderate income person (55% percentile income). I currently owe $3000 in income taxes. I also owe a $2000 penalty for not buying insurance. I write the IRS a check for $3000 (an attempt to refuse to pay the penalty). The IRS says applies the $2000 to health insurance penalty and only $1000 of the $3000 owed under income taxes and pursues me criminally under income tax statutes.
It ends up a criminal penalty for taxpayers, and a non-criminal for non-taxypayers. And yes, I think that was deliberate.
April 3, 2010, 9:03 amDavid M. Nieporent says:
Really? But what about all those people without licenses who voter ID laws allegedly disenfranchise?
I live in NJ too, and believe it or not, there are people who don’t drive here. While I wouldn’t want to live without a car, I don’t absolutely “need” one, and while I wouldn’t want to be in Sussex or Cumberland counties without one, there are many parts of the state, north Jersey in particular, where one can easily get by without. NJ Transit is heavily subsidized, after all. Plenty of buses and trains. Fewer soon, though.
April 3, 2010, 9:49 amMalvolio says:
Au contraire, obesity is considered a huge health hazard, which affects both the health-insurance market and the health-care market.
You could argue that in this case, the desired regulation (forbidding exclusion of pre-existing condition) makes the particular rule (insurance-purchase mandate) necessary. True in itself, but Congress could make a law reducing all health-insurance rates by 2%, and concluding that the only way such reduction would be economically feasible would be if people stopped being so dang fat.
My daughter does not own a car or drive. She’s twelve. It’s obviously possible to live, even in New Jersey, without driving.
Moreover, there’s no legal requirement that you live in New Jersey. In fact, I recommend against it. There is, however, the legal requirement that you live in the United States — or rather, you have no legal right to live anywhere else. Consequently, the state governments have broader authority over their residents than the Federal government has over its citizens.
April 3, 2010, 10:00 amMark Field says:
I’m now even more confused by your position. If courts shouldn’t be exercising the power of judicial review, then a court which fails to strike down the health care law would be doing what you want. That can’t possibly be an example of “judicial tyranny”. Nor could it be consistent with Jefferson’s concerns about the judiciary, since he wanted the courts to strike down more laws (i.e., to exercise judicial review more often).
But if you think the courts shouldn’t be exercising the power of judicial review, then there’d be no basis for such a suit. And the failure to hear it could hardly be “judicial tyranny”.
April 3, 2010, 10:40 amDavid V says:
Just fixing that up there. Because as we have seen in Constitutions post-US, governments have included health care as a right.
The rest I find compelling. Why wasn’t it done under Welfare? (A question I have posed quite a few times with no response).
An to Mr. JRose, regarding Public Option putting insurance out of business. Yes, it’s fine. Due to the above statement- that other, many other, democratic Constitutions have listed treatment and care as fundamental to the welfare of the citizens it protects not a thing to base commerce on.
They will find other things to insure- like say elective surgery- like electing to have a license for a car.
April 3, 2010, 12:43 pmDavid V says:
As I recall more had problems with the review issue. It wasn’t just Jefferson. Not to be overly pedantic there but it was as large a concern as the problem with how to set up the Senate- equal representation/aristocracy etc.
April 3, 2010, 12:48 pmjrose says:
The problem is that law doesn’t exist.
April 3, 2010, 4:26 pmepignosix says:
Suppose that Obamacare, along with its offensive mandate, is constitutional. Essentially, all that we lack, in terms of national controls, is a guaranteed wage and housing. Only these two components separate us from other centrally managed social states. (Don’t we already dally with minimum wage constraints?)
If that be constitutional, then communism and socialism must certainly also be permissible under our constitution, since they hardly imposed any more severe controls.
Observe. If our logic reaches a conclusion that pork is kosher (or halil), then it is deeply flawed. If our reasoning concerning constitutionality permits all the tenants necessary to reach the state of national control over virtually all activities of daily life, something is quite broken in our reasoning.
April 3, 2010, 4:46 pmJohn Herbison says:
I haven’t researched thoroughly enough to know whether I agree or disagree with this assertion, but the Supreme Court has upheld the authority of Congress under the Commerce Clause to require that an innkeeper must rent (sell the right to temporarily occupy) a room to Negro guests. I find it more than odd that many, who kvetch that declining to engage in an economic transaction does not affect commerce, bring up Wickard v. Filburn and Gonzales v. Raich, but fail to mention Heart of Atlanta Motel, Inc. v. United States.
Those of us who are old enough to remember the upheaval that accompanied the repeal of Jim Crow laws, and who know, without having to use Google, who Lester Maddox was, recognize what an ugly shibboleth the invocation of “states’ rights” is.
April 3, 2010, 6:55 pmChris Travers says:
I don’t understand why federalism should be seen as a bad thing just because the KKK likes it.
April 3, 2010, 7:39 pmAST says:
If the commerce clause authorizes individual mandates, what is to stop the government from telling us what jobs we can or must take? Conscription in time of war is one thing, but conscription to carry out economic central planning doesn’t seem that far off if the government can punish people for not buying health insurance.
The promise that insurers won’t be able to deny coverage for existing conditions sounds to me as if it’s designed to drive private insurance companies out of business. How can they set premiums without knowing being able to estimate future outlays? Oh, I forgot, making everybody part of one big pool. None of that evil competition or those awful profits.
April 3, 2010, 11:45 pmDesiderius says:
“Those of us who are old enough to remember the upheaval that accompanied the repeal of Jim Crow laws, and who know, without having to use Google, who Lester Maddox was, recognize what an ugly shibboleth the invocation of “states’ rights” is.”
Watch out for sheep, wolves wear their clothing!
April 4, 2010, 12:22 amrpt says:
Another Fiorina supporter…….
April 4, 2010, 12:38 amGuy says:
Try reading more carefully.
Or do you propose that courts decide cases arising under the Constitution without reading, interpreting, or applying that document? How would such even be possible?
Or perhaps you believe that Congressional statutes can legally supersede the Constitution.
April 4, 2010, 2:14 amGuy says:
The Commerce Clause is generally stronger when the regulated activity is economic, as such laws are less “attenuated” instances of the power, but even assuming fatness can be reached by the clause, there is a serious independent Due Process problem with criminalizing it.
April 4, 2010, 2:30 amcboldt says:
– there is a serious independent Due Process problem with criminalizing [obesity]. –
April 4, 2010, 9:17 amWhat about with attaching a surcharge, fine, penalty, or tax. Income tax figured in proportion to income, and to certified weight.
Mark Field says:
I can’t tell if you’re being sarcastic here or not. If not, the answer is because the life of the law is not logic, it’s experience. There’s nothing logically wrong with the German government insisting that a national ID card show the person’s religion. I trust, though, that you can see how that would be a tad discomforting.
April 4, 2010, 10:26 amDesiderius says:
Mark Field,
“I can’t tell if you’re being sarcastic here or not. If not, the answer is because the life of the law is not logic, it’s experience. There’s nothing logically wrong with the German government insisting that a national ID card show the person’s religion. I trust, though, that you can see how that would be a tad discomforting.”
But the reason the segregationists (and secessionists before them) cloaked their arguments in the garb of “state’s rights” was because those rights were so widely popular. Those who seek to declare any concern for state’s rights (against federal overreaching of it’s enumerated powers, and thus also implying concern for the protection of individuals against said encroachment) out of bounds need to at least consider the source of that popularity, then and now.
April 4, 2010, 1:42 pmChris Travers says:
Sure, but that’s a public image problem, as was the arm-stamps of the Muslims attending the mosque in Germany a while back. However, the legal question should be how open a given cluster of tactics are to abuse. While stamping the Muslims on their arms was a huge image problem, it doesn’t strike me that the legal argument would be “but it looks to the public like the tatoos that they gave Jews!”
The problem with the argument over states rights and desegregation is, IMO, limited to questions of the the 13th, 14th, and 15th amendments. Yes, in those contexts (slavery, equal protection under the laws, and voting rights) it is an ugly argument. However, I don’t think you can generalize it much beyond that.
April 4, 2010, 2:20 pmMark Field says:
The reason “states’ rights” was popular was precisely because it allowed states to control their slaves/freed slaves without silly concepts like equality being imported from outside. No other issue, then or now, had the emotional resonance to support federalism.
I don’t think image problems should be discounted. Perception of fairness is absolutely essential to the operation of any system of justice.
As for the susceptibility of state governments to do wrong, history doesn’t help your argument much. No injustice we are likely ever to perpetrate as a national government could possibly compare with slavery/segregation. And that’s before we even get to lots of other injustices at the state level. The national record, while far from perfect, is much better.
And this is just as Madison predicted. From Federalist 10:
“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it.”
April 4, 2010, 4:36 pmjpv446 says:
I am not a constitutional scholar, I’m using my common sense in how I’ve personally interpreted the various arguments concerning the constitutionality of mandated health care.
April 4, 2010, 8:54 pmIn the case of the wheat farmer not being able to grow wheat for his own family, thereby affecting interstate commerce, the Supreme Court did follow the Constitution. Albeit, only a minuscule portion of interstate commerce was affected, it was affected. The same reasoning applied to the marijuana grower, as the act of growing it also affected interstate commerce.
When the Court ruled that a member of the militia was forced to purchase a musket, powder and shot, it was a prerequisite that was applied only if the person desired to voluntarily join the militia.
As for that red herring, auto insurance, no one is mandating you purchase auto insurance unless you buy a car and want to drive it on the public roads. Furthermore, auto insurance is a part of states’ rights, not the federal government’s right.
States’ rights also apply in some Constitutions of individual states, such as in the Massachusetts Constitution, where the mandatory purchase of health insurance has been ruled constitutional in that state. There is no similar language in the United States Constitution.
However, there is no voluntary choice available in the forced submission of purchasing a product (insurance)as required by the Health Care law. Neither is there is anything voluntary about it, nor does the inaction of purchasing it affect interstate commerce, therefore a federal mandate that a person purchase health insurance must be unconstitutional.
Desiderius says:
MarkField,
“The reason “states’ rights” was popular was precisely because it allowed states to control their slaves/freed slaves without silly concepts like equality being imported from outside. No other issue, then or now, had the emotional resonance to support federalism.”
It is your professional judgment that apart from slavery, there would have been little support for federalism over against an unlimited central government?
April 4, 2010, 9:19 pmMark Field says:
It’s hard to be precise in stating how much support there would have been. Less at first, for 2 reasons: (a) state level officials had a vested interest in preserving their own power; and (b) unfamiliarity with the new national government. Over time, though, confidence in the national government has grown, as it has successfully handled a number of challenges. The strongest factor restraining the operation of the federal government was race.
So over time, yeah I think there would have been relatively little opposition to a more national government had it not been for the racial issue.
April 4, 2010, 9:30 pmDesiderius says:
MarkField,
At the end of the day, I don’t believe that much concentrated power is conducive to the maintenance of a Republic.
Be well.
April 5, 2010, 12:14 amKirk Parker says:
jpv445,
The heck it did, because…
… because the words “or things affecting commerce between the states” are not actually to be found anywhere in the aforementioned Constitution.
April 5, 2010, 1:53 amcboldt says:
jpv446 — When the Court ruled that a member of the militia was forced to purchase a musket, powder and shot, it was a prerequisite that was applied only if the person desired to voluntarily join the militia. –
April 5, 2010, 6:54 am“The militia” is not something one joins voluntarily. If one is of the requisite age and physical capability, then one is in the militia. If you are physically able to bear arms, then you are “in.” Quakers were excused, as were clergy.
Just saying that as a matter of the fraction of the population that was covered by the “buy a musket” mandate, they didn’t volunteer. The constitutional authority is “To provide for organizing, arming, and disciplining the Militia …”
Mark Field says:
I wasn’t commenting on the overall amount of power exercised, just the agency for exercising it. I’d certainly agree to a lot of cuts in the size of government. My only point was that those decisions which do get made tend to be better made at the federal level than at the state.
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May 1, 2010, 7:37 pmObamaCare unconstitutional in ways New Deal is not | Independence Institute: Patient Power says:
[...] Read the whole post: Destroying the Constitution’s Structure is not Constitutional. [...]
May 26, 2010, 3:34 am