Ilya notes the standing and ripeness issues in the health care suits. A few weeks ago, Virginia Attorney General Ken Cuccinelli spoke at GMU law school (following a now-established tradition of having newly-minted AG’s speak at the law school). I asked him exactly these questions about Standing and Ripeness.
With respect to standing, AG Cuccinelli argues that there is no real issue for the Virginia case–the Virginia General Assembly has passed a law that expressly provides that no resident of Virginia can be compelled to purchase health insurance. The federal law creates an express conflict with the Virginia law. If the federal law is valid then the Supremacy Clause controls. If it is not valid, then the state law controls. Idaho has passed a similar, but not identically worded bill to Virginia’s, and he expects them to sue as well. According to news stories, the Idaho actually requires the AG to sue.
Standing is a more difficult issue for the other AG’s case where there is no similar state law. Presumably the other AG’s will have to proceed on the EPA v. Mass theory of the financial costs that it would impose.
On ripeness, Cuccinelli indicated that there are financial expenditures that Virginia is required to make today in preparation for the expected implementation of the law in the future. As a result, even though most of the financial burden doesn’t arise until then, he argues that the issue is ripe today. He indicated that government was in the process of calculating and documenting those current and future costs. He also argued that if an issue is almost certain to arise at some point in the future, that courts have discretion to hear an issue ahead of time, rather than just waiting for it to arrive and then trying to stop it then. That argument seemed somewhat sketchier and seemed to be an appeal to common sense more than anything.
I’ll leave others to judge the validity of these arguments. But as an initial glance it seems to me that the standing issue is not that much of a major issue in the Virginia case but that ripeness raises many more of the problems that Ilya identifies.
Update:
Several commenters argue that Cuccinelli’s argument amounts to a nullification argument. I don’t think that it true, at least as I understand the nullification claims as they were made. I’m not an expert on nullification, but as I understand it, what was going on there was that Congress was enacting laws that were within its enumerated powers (tariff laws) and thus constitutional, but South Carolina was simply saying that it did not have to abide by those laws. So even if the Supreme Court had ruled, for example, that the tariff of abominations was valid, South Carolina said it had the right to interpret the Constitution for itself. In fact, I don’t think South Carolina even tried to challenge the tariff in court, but instead just simply said that it didn’t believe it to be constitutionally valid. So that was a challenge to the Supremacy clause.
Virginia is not challenging the Supremacy clause. Virginia is arguing that this is not a valid exercise of the federal government’s power under the Commerce clause, or taxing power, or whatever. Cuccinelli readily admits (as anyone must) that if the law is a valid exercise of federal power, then the Virginia law is preempted under the Supremacy clause. That’s not the same as nullification.
What this really seems like is is any other law where the state articulates a public policy that ends up conflicting with federal law. Consider the Raich case. The state of California passed a state law legalizing pot, claiming that the law was valid under its police power and that the application of federal drug laws was not a valid exercise of the Commerce clause. It turns out that California was wrong about that in the end. But I don’t think anyone would say that Raich was about nullification. In the current case, Virginia is making basically the same argument–it enacted its law pursuant to its police power and its law is not trumped by the federal law because that law is not a valid exercise of Congress’s powers. That’s not the same as nullification.
Update 2: Reader Jeffrey Techentin emails to elaborate on the ripeness theory that AG Cuccinelli seems to have had in mind in what I refer to as the “sketchier” theory above. Jeffrey notes this point from Whitman v. American Trucking, which provides the standard for pre-enforcement review: where the question presented “is purely one of statutory interpretation that would not ‘benefit from further factual development of the issues presented,’” pre-enforcement review of statutes is appropriate. Whitman v. American Trucking Associations, 531 U.S. 457, 479 (2001), quoting Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
If a court were to conclude that thee is not need for further factual development of the issues presented (an open question, of course) then this arguably fits the situation here. Jeffrey also argues that if pre-enforcement review is ever available, the potential that the law might be repealed some time before it takes effect cannot logically defeat ripeness, otherwise pre-enforcement review would never be available.
Steve says:
Does this imply that a state can manufacture standing to challenge any federal law at all, merely by passing a law saying “that federal law shall not apply within our borders”?
April 2, 2010, 11:28 amAnonsters says:
Same question for me.
April 2, 2010, 11:31 amShelbyC says:
Yeah, the state law doesn’t control anything if the federal law is invalid, the state law is simply irrelevant. And the state law is also irrelavant if the federal law is valid. I don’t think I see the point.
April 2, 2010, 11:34 amShelbyC says:
On second thought, maybe there is an interesting issue, wrt standing (although not ripeness). If a federal law compels people to take action X, and a state passes a law saying “no person shall compel another to take action X”, can a state enforce its law against federal officials attempting to enforce federal law if the federal statute exceeds the powers of the federal government?
April 2, 2010, 11:43 amAnonsters says:
(BTW, are we really back to interposition and nullification?)
April 2, 2010, 11:50 amRichard Riley says:
Like other commenters so far, I think Todd is wrong. It’s still the case that only individual VA citizens, not the state of VA, are arguably harmed if they are forced against their wishes by the federal law to to purchase health insurance in violation of the state law, so only an individual has standing to sue. A state cannot say it is harmed and thereby gain standing in federal court to challenge some federal law simply by passing a state law that has (by design) language inconsistent with the federal law, which apparently is Cuccinelli’s argument.
April 2, 2010, 11:50 amAnderson says:
I’m sorry, but how does a tax imposed on those who don’t buy health insurance, amount to *compelling* them to buy health insurance?
(Reposted after apparently being eaten; sorry if this posts twice.)
April 2, 2010, 12:02 pmepluribus says:
It seems to me that’s what they are trying to do. Sounds a lot like nullification, which inspired Jackson’s comments about hanging.
April 2, 2010, 12:16 pmR. Nebblesworth says:
w/r/t ripeness, isn’t what they are looking for basically a state-federal declaratory judgment?
April 2, 2010, 12:19 pmepluribus says:
If Virginia is relying on a state statute saying that a federal statute shall not apply in Virginia, it would seem to me that declaratory judgment would be quickly forthcoming–against Virginia.
April 2, 2010, 12:21 pmKamal says:
For a while I was unsubscribed from this site.. being tired of the lack of valid law articles. I’m back… I’ve decided to just find these racist pieces amusing, rather than anything else. I understand you strongly disagree, and are in fact completely unaware of your true motives, so i’ll continue reading. I know at some point, perhaps after the supreme court removes your last chance of hope, you will go back to sound legal arguments. I’ll wait for then.. because this site used to be something great.
April 2, 2010, 12:23 pmRichard Riley says:
Okay, Kamal, I’ll bite. The VC bloggers themselves can respond or ignore you on their own, but tell me, what exactly is “racist” about a post on federal court standing and ripeness arguments? Are you saying any argument questioning the constitutionality of the new healthcare legislation, or perhaps even opposing it on policy grounds, is “racist?”
April 2, 2010, 12:29 pmepluribus says:
The word “racist” is bandied about so much these days, Kamal could be anti- or pro-health care reform, for all I can tell. Or maybe he/she doesn’t even know that health care reform is what we have been talking about lately. Or maybe English is just a second language with him/her. Take your pick. Best ignore.
April 2, 2010, 12:34 pmR. Nebblesworth says:
re: Kamal
what
April 2, 2010, 12:43 pmDaniel Shinkle says:
I could understand the State’s having standing if the Federal law compelled or prevented State action. If Federal requirements conflict with State requirements, the State wants to enforce its own. But what does the State do, or not do, to enforce: “No one shall be required to …”? If the Federal law is Constitutional, Federal law prevails and the federal government enforces its law while the State does nothing. I don’t see that the Federal law is preventing any act or compelling any act on the part of the States.
In light of Federal supremeacy, I think a State law that says, “No person shall be required to puchase health insurance” should be read as “No personal shall be required [by this State or any municipal or county government] to purchase health insurance.”
April 2, 2010, 12:53 pmSarcastro says:
I always suspected ripeness was racist! I mean, Scalia is behind much of it.
April 2, 2010, 1:00 pmNaG says:
Totally off-topic, but can we have a post where we can discuss the Legal Theory Blog posts that Prof. Barnett posted about earlier? Those papers really blew my mind, and not in a good way.
April 2, 2010, 1:34 pmPersonFromPorlock says:
Well, now, wait a minute! Kamal may have a point. Anonster’s
puts him squarely in the Daniel Webster camp when it comes to the Fugitive Slave Act, and that’s certainly racist. ;^)
April 2, 2010, 1:37 pmSteve says:
I wouldn’t call it nullification, if the State’s intent is merely to challenge the federal statute in federal court and then accept the outcome. Nullification is a pretty pejorative term, and while I don’t think much of the merits of these lawsuits, I don’t think it rises to the level of nullification until a federal court upholds the health-care law and a State decides to disregard it anyway.
April 2, 2010, 1:40 pmepluribus says:
With respect, I disagree. Nullifcation was the attempt by one state (South Carolina) to provide by state law that a federal law (the tariff) would have no application and be unenforceable in that state. The Virginia law seems to represent the same effort. The state law says that no one in Virginia can be required to do what the federal law requires them to do. I cannot imagine that Virginia could pass a law whose effect was merely to confer standing on Virginia to contest the federal law without providing some substance to the claim that Virghinia has standing. The substance appears to be analytically the same as nullification.
April 2, 2010, 1:49 pmyankee says:
I checked the Virginia legislature’s website, and what the law in question says is this:
If “no law” applies only to Virginia law, there’s no conflict. Virginia isn’t required to mandate health insurance any more than it’s required to make medical marijuana possession a state-law crime.
Conversely, if “no law” applies to both state and federal law, it’s transparently without the powers of the Virginia legislature. State legislatures don’t have the power to tell Congress what laws it can or can’t pass. Can a state really manufacture a substantive challenge to any federal law by passing a law purporting to restrict the powers of Congress?
April 2, 2010, 1:50 pmSteve says:
Sounds like Virginia just abrogated its entire regulatory scheme regarding health insurance. After all, if I’m an out-of-state insurance company who wants to sell to Virginia residents, or if I want to sell Virginia residents a policy that doesn’t comply with Virginia’s substantive regulations, those meddlesome regulators are interfering with the blessings of liberty of Virginia citizens to buy my policies.
April 2, 2010, 1:59 pmyankee says:
Except that the statute is worded in a way that’s slightly ambiguous. If I were the federal court, I’d give the Virginia legislature a big eff you by “interpreting” the law to restrict only Virginia law, not federal law.
April 2, 2010, 1:59 pmSteve says:
Nullifcation was the attempt by one state (South Carolina) to provide by state law that a federal law (the tariff) would have no application and be unenforceable in that state. The Virginia law seems to represent the same effort.
Substantively, the law is the same. I think the intent is significantly different. One can’t really say that Virginia is trying to deny the supremacy of federal law if, in fact, Virginia is willing to abide by the decisions of the federal court system as to whether the federal statute is constitutional. Now, of course, maybe they’re not willing to abide.
April 2, 2010, 2:00 pmMike McDougal says:
Are you trying to have some sort of philosophical debate on the nature of free will? If you’re going to ask that question, you need to at least give us a theory on how you believe a government can EVER compel people to do anything outside of physically moving them.
April 2, 2010, 2:06 pmSteve says:
If you’re going to ask that question, you need to at least give us a theory on how you believe a government can EVER compel people to do anything outside of physically moving them.
I somehow manage to continue renting notwithstanding the adverse tax consequences.
April 2, 2010, 2:13 pmcecil kirksey says:
“21.yankee says:
I checked the Virginia legislature’s website, and what the law in question says is this:
No law shall restrict a person’s natural right and power of contract to secure the blessings of liberty to choose private health care systems or private plans. No law shall interfere with the right of a person or entity to pay for lawful medical services to preserve life or health, nor shall any law impose a penalty, tax, fee, or fine, of any type, to decline or to contract for health care coverage or to participate in any particular health care system or plan, except as required by a court where an individual or entity is a named party in a judicial dispute. Nothing herein shall be construed to expand, limit or otherwise modify any determination of law regarding what constitutes lawful medical services within the Commonwealth.”
I am not sure if it applies in Virgina but if one is retired and 65 or older then one must sign up for Medicare if the person has say a company provided health insurance plan. Not sure how this law would apply.
April 2, 2010, 2:25 pmAnderson says:
how you believe a government can EVER compel people to do anything outside of physically moving them
As Steve notes, a tax compels no one (except of course that one is compelled to pay the tax).
Contrast being “compelled” to buy health insurance with being “compelled” to pay the tax in question, and you will discover two very different types of “compulsion.”
April 2, 2010, 2:43 pmS says:
The Virginia Legislature repealed its insurance code for health insurance? To think this gives them standing in Fed Court is absurd.
April 2, 2010, 2:45 pmSuperSkeptic says:
BTW and off-topic, but, your interpretation here is much like the mild contortions in Ginsburg’s dissenting opinion in Shady Grove in order to protect a state interest. See D II at 18 in her dissent, where she argues that general words in a statute (such as “no law”, here) should basically only be read to have been meant to apply within that state’s jurisdiction. Point is, such contortions can go both ways, and therefore be abused for outcome determinative reasons. Moreover, I think such an interpretation, as you suggest here, would be blatantly atextual and dishonest, but I assume you agree due to your use of scare quotes around the word interpreting.
April 2, 2010, 2:47 pmAnderson says:
Hey Steve, let’s file a class-action suit to have the home mortgate deduction declared unconstitutional!
I’ll draft it, you pay the filing fee ….
April 2, 2010, 3:01 pmLarryA says:
Given that the HCR will radically change health insurance, for instance by requiring people to have some and regulating in all sorts of ways the companies that will provide it, then Virginia (and every other state) will be compelled to completely rewrite its health insurance regulations, including all the forms, warnings, and other paperwork and reports currently required. This will be a huge, time-consuming, expensive task. With the implementation deadlines, it needs to have been started yesterday.
The states are saying, “Look, implementing HCR is going to cost state governments a bundle, which we are going to have to expend before any individual has grounds to sue. If HCR is then found unconstitutional we’re going to have to spend another bundle to undo all the new stuff. We need to know now which way this is monster is going to flop.”
Under Printz v. United States if HCR isn’t a valid program, the Feds can’t force the states to pay for it.
April 2, 2010, 3:02 pmMalvolio says:
This keeps being said: “a mandate is just a tax, and therefore constitutional”.
No.
Just because the government can constitutionally accomplish a goal by one means doesn’t imply that any means to accomplish that goal is constitutional.
And the mandate as passed is very, very different from a tax. First of all, the taxpayer is responsible for insuring all the people in his household. If you have lots of kids, all of them must insured. If your mother-in-law lives you, even if she’s not a dependent, ditto. A person with a large household ends up paying much more.
Imagine an explicit tax that charged by household member. That would be black-letter unconstitutional. Add a deduction or credit for each person who is insured — that wouldn’t make it any more constitutional, but it would make it economically indistinguishable from the current mandate.
Finally, as an ethical rather than legal consideration, ask yourself why it isn’t a tax? Why isn’t it called a tax? The reason is obvious: if it were called a tax, it would never have passed the House and if it did, Obama would be in deep political trouble if he signed it. It is hardly cricket to allow it to be a non-tax for political purposes and then turn around and call it a tax to defend it in court.
April 2, 2010, 3:03 pmSteve says:
Just because the government can constitutionally accomplish a goal by one means doesn’t imply that any means to accomplish that goal is constitutional.
I agree with that. The point of these arguments is moreso that if the government can legally accomplish the exact same result by different means, it’s a bit silly to rant about how the government is flagrantly exceeding its powers, blah blah blah. Yes, there might be a technical objection to the means.
Given that the HCR will radically change health insurance, for instance by requiring people to have some and regulating in all sorts of ways the companies that will provide it, then Virginia (and every other state) will be compelled to completely rewrite its health insurance regulations, including all the forms, warnings, and other paperwork and reports currently required. This will be a huge, time-consuming, expensive task.
Yes, maybe so, but I didn’t ask if Virginia might have some other standing argument to make. I questioned the premise of this post, which is that a State can manufacture standing by passing a statute which purports to invalidate a federal law. I still don’t see anyone arguing that that’s kosher, and Prof. Zywicki seems to have done a drive-by.
I’ll draft it, you pay the filing fee ….
What about the constitutionality of filing fees? Some states actually require the defendant to pay a fee in order to file his answer and avoid a default. Even if we assume that a waiver is available to indigent defendants, that strikes me as highly unfair and so it must be unconstitutional somehow.
April 2, 2010, 3:10 pmG. May says:
Maybe the nuance is just way over my head, but this seems awfully tomayto/tomahto-ish. So you’re saying the government isn’t compelling us to buy insurance you through the threat of fine, but it is compelling you to pay a tax/fine/levy/fee or whatever the politically acceptable term is?
April 2, 2010, 3:18 pmLarryA says:
From the post, “On ripeness, Cuccinelli indicated that there are financial expenditures that Virginia is required to make today in preparation for the expected implementation of the law in the future. As a result, even though most of the financial burden doesn’t arise until then, he argues that the issue is ripe today.”
April 2, 2010, 3:31 pmAnderson says:
And the mandate as passed is very, very different from a tax. First of all, the taxpayer is responsible for insuring all the people in his household. If you have lots of kids, all of them must insured.
Quelle horreur. Next, the government will require you to feed and clothe your own children. Wilkes & Liberty!
April 2, 2010, 3:35 pmSteve says:
From the post, “On ripeness, Cuccinelli indicated that there are financial expenditures that Virginia is required to make today in preparation for the expected implementation of the law in the future. As a result, even though most of the financial burden doesn’t arise until then, he argues that the issue is ripe today.”
Standing and ripeness are separate issues. You quoted my comment, but I didn’t make an argument about ripeness and I don’t really have an opinion on it. Sadly, notwithstanding the update to the post, the question of whether a state can really manufacture standing in this manner remains unanswered.
Prof. Zywicki mentions the California medical marijuana statute from the Raich case. But California was just an amicus in Raich and didn’t need standing. It would be a different question, indeed, to ask whether a federal law banning X can really be challenged by any state which passes a law saying “X is now legal here.”
April 2, 2010, 3:38 pmbibble says:
Mr. Zwicki
On March 24, you stated that pharma and insurance stocks were up in response to Obamacare.
Merck peaked on 3/22 and has been down since then. Glaxo Smith Kline closed at 28.55 yesterday which is down from its March 18 peak of 39.22 and way down from its Jan 4 peak of 42.97.
Care to explain that?
Are you still right since the market anticipatorily priced them weeks or months ago? Or are you perhaps just a clueless hack who will seize on any data point that supports your views?
April 2, 2010, 3:44 pmXenocles says:
Why not? I’m already required to feed and clothe others’.
Of course, you dodged the salient point there. If the penalty is a tax and it varies with the number of uninsured, it rather closely resembles a head tax, no? If it’s not a tax, then property is presumably being taken without due process since I don’t think the intent is to take all the delinquent to court.
April 2, 2010, 3:47 pmyankee says:
Exactly. The defendants in Raich weren’t making some kind of reverse preemption argument to the effect that the California law allowing medical marijuana trumped the federal law prohibiting it. They just argued that the federal statute was unconstitutional as applied because growing your own pot isn’t interstate commerce. It’s very different from the claim here that the Feds can’t do what Virginia has prohibited.
April 2, 2010, 3:59 pmohwilleke says:
Sorry, it is nullification. If the question were merely one of the constitutionality of the statute, then state legislation would be irrelevant.
April 2, 2010, 4:01 pmShelbyC says:
The law, as posted above, is pretty clearly an attempt at nullification. But it doesn’t sound like the AG is making a nullification argument in court.
Of course, the Raich analogy isn’t on point; California encacted a law legalizing med. MJ, and it successfully and validly removed state criminal penalties on medical MJ. Raich went to court (California couldn’t, since it, like Virginia, didn’t have standing) and made various commerce clause arguments, including one saying that the fact that her production of pot was legal in CA put it outside the broader regulatory framework that congress had passed, and she lost.
April 2, 2010, 4:14 pmskyywise says:
Although the VA law was passed before Congress passed the health care reform, I think the phrasing of this sentence is inaccurate. The VA law was written and passed in response to the then-ongoing federal legislation. I think a better way of describing these events would be to say, “The Virgina law creates an express conflict with federal law.”
Words matter. The Congressional federal health care legislation did not create this particular legal conflict; the Virginia Attorney General Assembly created this conflict. Assigning responsibility to the proper party is important, particularly in these strongly argued matters.
Of course this is just semantic nit-picking and I don’t think TZ purposefully wrote to slant the tone of the post against health care reform. The sentence just struck me as… off.
April 2, 2010, 4:27 pmyankee says:
In the Raich case, the defendants were individuals whose “theory” of standing to challenge the federal drug laws was that they were actually being prosecuted under the federal drug laws. The fact that California had legalized pot under certain circumstances was completely irrelevant to the legal issues involved in the case. The state itself was involved only as an amicus.
By contrast, the Virginia Health Care Freedom Act is at the center of Virginia’s lawsuit. The Commonwealth of Virginia is the litigant even though individual mandate does not apply to the Virginia government itself. Virginia would have no standing to challenge the Affordable Care Act if there weren’t a state statute purporting to prohibit Congress from passing the ACA.
Here’s what happens: Virginia files its lawsuit. The United States files a motion to dismiss on the theory that Virginia has no standing, because the Virginia statute is unconstitutional regardless of any statutory preemption issues. The U.S. argues that the Supremacy Clause prohibits Virginia from regulating what laws Congress may pass, making the Virginia statute unconstitutional and negating Virginia’s theory of standing based on the statute. For the suit to proceed, the court must reject the motion to dismiss and hold that Virginia has the power to pass a law prohibiting Congress from passing certain types of legislation. That’s not quite the same thing as 19th century nullification, but it’s nullification nonetheless.
The two cases would be analogous if California had passed a statute purporting to prohibit the federal government from banning home-grown, state-licensed medical marijuana, and used that law as the basis of standing for the a state lawsuit challenging the federal drug laws.
April 2, 2010, 4:49 pmMike McDougal says:
Therefore, absent the application of physical force, the government can never compel.
April 2, 2010, 4:52 pmShelbyC says:
Well, many people manage to rob liquor stores notwistanding the adverse legal consequences.
April 2, 2010, 4:54 pmChris Travers says:
Hmmm… This could be a case of taking a big ol’ shotgun, aiming it squarely at one’s feet and pulling the trigger…..
I would seriously be surprised if the Virginia law wouldnt have weird unintended consequences, like preventing employers from providing medical insurance as a standard part of a benefits package, or any contract that might provide for an obligation to secure medical insurance.
Why is it that folks who call themselves “conservative” always seem to react drastically instead of thinking thing through?
April 2, 2010, 5:16 pmSteve says:
Therefore, absent the application of physical force, the government can never compel.
That’s arguably true. However, there are numerous cases in which the government actually does threaten to apply physical force, such as when they say “don’t do this act or you will be hauled off to jail.” The health care mandate, however, is not backed any such threat; the only consequence for not buying insurance is a higher tax bill.
April 2, 2010, 5:17 pmHere Come the Lawyers, Part 3 says:
[...] Zywicki has a follow-up to Ilya’s post discussing Virginia Attorney General Ken Cuccinelli’s recent comments on [...]
April 2, 2010, 5:25 pmSuperSkeptic says:
Arguably true? It is true, Steve. Way to dodge the point, but you just beg the question: And when you refuse to pay that “higher tax bill”? … Force-a-comin-your-way…
April 2, 2010, 5:27 pmShelbyC says:
Same thing when you continue to live in your house after they take it.
April 2, 2010, 5:43 pmSteve says:
Way to dodge the point, but you just beg the question: And when you refuse to pay that “higher tax bill”? … Force-a-comin-your-way…
Actually, the health care law expressly says that no one will be jailed for failing to pay the penalty, so you’re wrong.
But even setting that aside, if you want to argue the government is “compelling” you to buy health insurance by virtue of the fact that you get a higher tax bill if you don’t, then the government is forcing you to take out a mortgage instead of rent, forcing you to winterize your home, etc. Not so. You’re not forced to do any of those things, you just end up with a higher tax bill if you don’t.
April 2, 2010, 7:18 pmKevin[0] says:
So the penalty is unenforceable? Or will it merely be garnished from your wages? Is that a form of coercion?
You are compelled to pay your taxes. Anything that adds to those taxes is likewise compelled. The entire point of government is to coerce.
To put it another way, you are forced to either winterize your home or pay a tax. The fact that you have more than one option, and choose to pay the tax, does not diminish the fact that you are being compelled to choose one of those two options.
April 2, 2010, 8:35 pmShelbyC says:
That strikes me as pretty meaningless. If I owe $10,000 in taxes plus the penalty, and I pay only $10,000, they’re just going to say I paid the penalty and that they’re jailing me for not paying a different portion.
April 2, 2010, 8:56 pmMalvolio says:
The phrase “who call themselves ‘conservative’” is superfluous in that question.
Unless you think that conservativism ought to lead to more reflectiveness, in which case I would ask “Why is it that folks who call themselves ‘liberals’ always seem to try to restrict my liberty?”
On a related subject, why do I keep seeing these taunts along the lines of “Go ahead, get Obamacare thrown out by the courts — that will lead to socialized medicine!”
Are they trying to scare us? The people who say things like this always seem to be in favor of socialized medicine, so if they believed what they were saying, they would keep their mouths shut and hope Obamacare is thrown out, thereby triggering (by whatever mechanism) socialized medicine.
Maybe they are really smart and counting on us not believing them, trying to fake us into trying even harder…
April 3, 2010, 9:42 amChris Travers says:
Fair question too :-)
Perhaps the fairer question is “Why are politicians hypocrits?”
April 3, 2010, 4:37 pmChris Travers says:
Well, it would lead to either socialized medicine or the old system. The kinds of reform we need are not forthcoming whatever we do :-( The result is that out-of-control health care costs will continue to rise because we are in the business of a lack of individual consideration to cost control.
April 3, 2010, 4:47 pmJoe says:
can be compelled to purchase health insurance
Well, no one is. They are taxed when they do not.
OTOH, people are “compelled” to serve on federal juries. In the past, they were “compelled” to serve in the military. Parents in certain federal areas are “compelled” to educate and care for their children, this includes fathers who don’t have custody and are required to pay support.
People will not get out of this by paying the government less than $15 a week (when this part of the law goes into effect in a few years), less if they make under a certain amount.
April 3, 2010, 6:03 pmmarkm says:
First off, why didn’t the state AG’s supplement their filing concerning the effects on state insurance regulations and finances, with filings on behalf of a few named residents of their states in regards to the individual mandate?
Second, if it’s a tax, Obama broke a major campaign promise, and nearly every Democrat in Congress lied about it. Expect a whole lot of legal maneuvering over whether the federal government has to respond to the substance of the complaint before election day.
Finally, if the mandate is OK if interpreted as a tax, would it be constitutional to increase the income tax by an average of $25,000 per household,
April 3, 2010, 9:56 pmwith a $25,000 credit for the purchase of a federally-approved automobile? “Federally-approved” meaning that it was produced by a domestic automaker that accepted bail-out funds.
David Schwartz says:
It’s not a tax. It’s a regulatory application of Congress’ taxing power. Case law says this is lawful provided the regulatory aim itself is lawful. (So, for example, a 100% tax on compensation payments for eminent domain takings would not be okay, but this would be.)
I would hope not. The distinction would be that the insurance mandate is a small part of a comprehensive scheme to regulate interstate commerce. But it is quite possible that this might be one of the many awful things Congress can do, thanks to expansive readings of the Commerce clause.
I suppose they could have added this to the bailout bill and argued it was a small part of a comprehensive scheme, sure. The power to tax is the power to destroy. The greater includes the lesser.
April 4, 2010, 6:58 amnoahp says:
Not a lawyer but it seems obvious and common sensical that any state could challenge Democare if the law will require them to expend funds to prepare for its full effect unless the bill reimburses them for their expenditures. Haven’t mandates in the gained State acquiessence in the past by threatening with loss of Federal funds? Why should the various States take this lying down? The Congress cannot create constitutional rights!
April 5, 2010, 12:44 pmnoahp says:
Or rather the Congress creates “constitutional rights” only if the laws it passes are constitutional.
April 5, 2010, 12:51 pmmarkm says:
“It’s not a tax. It’s a regulatory application of Congress’ taxing power.”
To everyone but lawyers and yellow-dog Democrats, that argument will translate to, “They broke their promise and are still quibbling about it.”
April 6, 2010, 6:42 am