Just filed in the Northern District of Ohio. (HT Jacob Sullum, of Reason.) Lead attorney is Jonathan Emord, formerly a Vice-President at Cato, and head of a firm with extensive experience in litigation against the Food and Drug Administration and other federal agencies on medical issues. The complaint is here.
In the complaint, the material about the interstate commerce power and the tax power is fairly standard. What makes the lawsuit significance is a well-developed argument (subject, of course, to the caveat that a complaint is not a brief) on medical privacy issues. Primarily, that the compelled disclosure to insurance corporations and insurance agents of private medical information (as well as urine or DNA samples and so on) is a violation of Fifth Amendment liberty, and of the constitutional right of privacy. Further, coercing individuals to associate with insurance companies and insurance agencies is a violation of the right of association, a right derivative of the First Amendment, but, as developed in later case law, not at all limited to classic First Amendment associations such as political or expressive organizations.
Guy says:
Wow, someone opposing the Constitutionality of the bill finally realized that the primary objections to the mandate (such as the activity-inactivity distinction) are better expressed through substantive due process, and not strained interpretations of Commerce Clause principles (clearly the mandate is “necessary and proper” to fix the free rider problem, so if one concedes Congressional power to regulate health insurance, as most would, the mandate is a fortiori within the scope of the Commerce Clause, if it does not violate any other provision of the Constitution). I’m impressed.
May 13, 2010, 1:57 amTweets that mention The Volokh Conspiracy » New lawsuit on Obamacare -- Topsy.com says:
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May 13, 2010, 2:17 amJoe Kowalski says:
Once again, I still fail to see how imposing an additional tax on people who choose to self-insure constitutes coercing people to buy insurance. Am I being coerced into buying a home because I choose to rent and thus can’t avail myself of the Mortgage Interest Deduction?
May 13, 2010, 2:31 amSteve says:
I am tired of being coerced to associate with Halliburton and Blackwater, so I hope this argument prevails. Unless, of course, someone wants to argue that the inalienable freedom not to associate with a private corporation can be overcome simply by the government inserting itself as middleman, which strikes me as a very silly argument!
May 13, 2010, 3:02 am~aardvark says:
Before cheering this lawsuit on, Kopel should have checked who is involved in it. In addition to Emord, there is also David Grossack, and it’s hard to tell which of the two is crazier. Both engage in stunts and frivolous suits in vain efforts to attract attention to themselves. Neither has any credibility. There is no reason to believe that any of the claims here will be successful.
May 13, 2010, 3:24 amGuy says:
That’s because there’s little, if any, reason to be believe the bill is unconstitutional. But at least they correctly categorized their objection by adding SDP claims. Too bad for them that Lochner is no longer law.
May 13, 2010, 3:29 amDilan Esper says:
Yawn.
A lot of right-wing and libertarian lawyers, as well as a bunch of state attorneys general, are embarrassing themselves with this claptrap. Instead of reporting breathlessly on how “well developed” these lawsuits are, why don’t you wait until the plaintiffs obtain judgments that Obamacare is unconstitutional. Oh, I forgot– that will never happen!
May 13, 2010, 3:30 amStephen Lathrop says:
I have no idea why anyone who has read the opinion in Citizens United would conclude the current Court will be restrained by legal principle from reaching preferred outcomes. Nor why it isn’t understood and accepted that politics will at times govern the Court’s preference.
That said, the argument against compelling unwanted disclosure of private information strikes me as non-trivial. But I’m not a lawyer.
May 13, 2010, 7:30 amRodger Lodger says:
David Kopel says the complaint alleges ObamaCareTM:
is a violation of Fifth Amendment liberty, and of the constitutional right of privacy
Kindly cite the clause that creates the right of privacy. Or do I have to get in a space ship and travel to the pneumbra?
May 13, 2010, 7:41 amGerard N. Magliocca says:
I’m not sure I understand the privacy argument. You don’t have to buy health insurance under the statute. You can refuse and pay a tax instead. So if you have privacy concerns, you don’t have to disclose any information. What’s the problem here? Are people saying that we have a tax-free right to privacy?
May 13, 2010, 7:58 amFloridan says:
At least I don’t have to pay for this lawsuit (except for the government’s defense), unlike the frivolous one being brought by Florida’s attorney general.
May 13, 2010, 8:16 amscattergood says:
Um I think it is clear that the Court, in Roe v Wade imagined and or created a ‘right to privacy’, writing that the:
“right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
So, the right to privacy extends to the decision of whether to terminate a pregnacy or not terminate a pregnacy. But according to ObamaCare supporters, it doesn’t extend to the decision whether to purchase or not purchase for health insurance? Please explain why the ‘right to privacy’ extends in one decision but not the other.
For those who say, ‘hey you can not purchase health insurance, you can just pay a fine’, would you support the notion that women don’t have the right to chose to terminate a pregnancy, they can just pay a fine if they do? I thought not.
May 13, 2010, 8:27 amscattergood says:
YOU are not associating with Haliburton and Blackwater, YOUR GOVERNEMNT and is spending YOUR tax dollars for products and services from them.
If you don’t like that fact, you can elect government officials to change the policies of the government to spend your tax dollars at other companies and in pursuit of other goals.
May 13, 2010, 8:33 amruuffles says:
That’s Rodger Lodger’s point. Without the “activist” cases of Roe and Griswold (the latter referencing penumbras), there would be no right to privacy.
There *is* a fine when states explicitly require women to pay extra for health plans with abortion coverage.
May 13, 2010, 8:43 amGuy says:
For state governments? The Due Process Clause of the 14th Amendment is what makes it protected in the Constitution in a way enforceable by the federal government.
Too penumbra-y? Kindly cite the clause of the federal Constitution that prevents states from infringing the freedom of speech.
May 13, 2010, 8:49 amSteve says:
YOU are not associating with Haliburton and Blackwater, YOUR GOVERNEMNT and is spending YOUR tax dollars for products and services from them.
So under the logic of this lawsuit, I have a fundamental right to decline to give my money to private corporations… but the government can ignore that right if it simply takes my money via the tax power and then hands it over to those very same private corporations. That doesn’t seem right.
If you don’t like that fact, you can elect government officials to change the policies of the government to spend your tax dollars at other companies and in pursuit of other goals.
This is a truism that could equally be applied to Obamacare. If people don’t like being forced to pay money to private insurance companies, they can elect a new government that will get rid of that requirement. Do you think that makes it okay?
So, the right to privacy extends to the decision of whether to terminate a pregnacy or not terminate a pregnacy. But according to ObamaCare supporters, it doesn’t extend to the decision whether to purchase or not purchase for health insurance? Please explain why the ‘right to privacy’ extends in one decision but not the other.
All of the right of privacy cases, dating back to Meyer v. Nebraska and Pierce v. Society of Sisters, deal with traditionally private family-type decisions such as schooling and family planning. There has never been a right of privacy case relating to a purely economic decision like whether to purchase health insurance. Maybe we could rehabilitate Lochner and call it a right to privacy case. To put it another way, if you can win this argument then you can use the right of privacy to restore the Lost Commerce Clause and then some.
The less ambitious privacy argument relates to medical records and the like. None of the right of privacy cases establish a right to keep certain categories of documents private, however. They all speak to keeping the decisionmaking process itself insulated from government interference.
May 13, 2010, 8:56 amscattergood says:
Well until Roger comes out and says that he is for the repeal of Roe v. Wade, his point can be read many ways.
That isn’t a great comparison. The insurance company is fined, not the person who choses to purchase health insurance. The coercive power of the state here only reinforces the contradictions in choice.
May 13, 2010, 8:59 amscattergood says:
So under the logic of this lawsuit, I have a fundamental right to decline to give my money to private corporations… but the government can ignore that right if it simply takes my money via the tax power and then hands it over to those very same private corporations. That doesn’t seem right.
Um, no, I never said any such thing. IF ObamaCare were a TAX and the government went and bought health insurance for everybody, then it might be an apt comparison. Do you see no difference between the government taxing and spending and the government mandating and making you spend? Really?
This is a truism that could equally be applied to Obamacare. If people don’t like being forced to pay money to private insurance companies, they can elect a new government that will get rid of that requirement. Do you think that makes it okay?
You are forced to pay taxes. You are not forced to buy certain products and services for your direct use. That you don’t see a difference is illuminating. I have less of an issue if there were a tax that were directed to the purchase of health insurance. I may not like it, but I have less of a problem with the mechanism. The mandate on inactivity can be stretched in the future in ways that I think everybody will not like. You cannot not have a health club plan! You cannot not buy cars from these three approved car companies! YOu cannot not eat 3 helpings of fruit a day!
All of the right of privacy cases, dating back to Meyer v. Nebraska and Pierce v. Society of Sisters, deal with traditionally private family-type decisions such as schooling and family planning. There has never been a right of privacy case relating to a purely economic decision like whether to purchase health insurance. Maybe we could rehabilitate Lochner and call it a right to privacy case. To put it another way, if you can win this argument then you can use the right of privacy to restore the Lost Commerce Clause and then some.
Whether to purchase or not purchase health insurance IS a family type decision. It effects your health, family economics, indicates to your children deep personal values, etc. So I guess by your definition it should be protected?
The less ambitious privacy argument relates to medical records and the like. None of the right of privacy cases establish a right to keep certain categories of documents private, however. They all speak to keeping the decisionmaking process itself insulated from government interference.
This of course is untrue. If it were true you would be happy to have the name of each person who had an abortion made public? The reasons for their decision of course would be private, but not the documents related to the actual abortion?
May 13, 2010, 9:10 amGuy says:
First, it is important to look to the source of the strict scrutiny standard:
-Carolene Products footnote four
It would seem that the right not to buy health insurance does not raise serious problems under the analysis, to the extent that abortion law regulates within a person’s body, and the mandate regulates economic activity, privacy (if to be recognized as a substantive right appended to paragraph 1) is less directly at issue, the right to privacy has never been read to encompass complete freedom of decision. Also, gender is a quasi-suspect class appended to paragraph 3. Finally, the economic character of purchasing health care would seem to require careful pause before considering it to be encompassed within the right to privacy, as the very sentence this footnote is appended to: “[T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Seems to consider this kind of thing to be outside the scope of things referred to in the footnote.
Here, of course, the purpose of the legislation is not to interfere with personal decision-making or to “protect” people from their own bad decision-making (if so, I would agree its Constitutionality is seriously in question). Rather, the purpose is to prevent or discourage free riders from abusing Congress’ elimination of preexisting conditions as a legal ground for denying health insurance.
May 13, 2010, 9:11 amSteve says:
Do you see no difference between the government taxing and spending and the government mandating and making you spend? Really?
No, I really don’t. It’s the same money either way, and it used to belong to me and now it belongs to a private company. If the government can’t force me to give my money to a private company, but it can take my money and hand it to the same company as long as the government acts as middleman, I don’t see the point of having the restriction in the first place.
Whether to purchase or not purchase health insurance IS a family type decision. It effects your health, family economics, indicates to your children deep personal values, etc. So I guess by your definition it should be protected?
Well, good luck with that argument. I have to say that prior to the current legislation I never knew anyone who felt that whether they buy insurance “indicates to their children their deep personal values.” Again, if you win this novel argument you will force the government to butt out of all sorts of economic transactions on privacy grounds, so I wish you luck revolutionizing the Constitution. Perhaps Wickard v. Filburn would have come out the other way if the plaintiff had argued, “Whether I choose to grow wheat indicates to my children my deep personal values.”
This of course is untrue.
What I said is that “None of the right of privacy cases establish a right to keep certain categories of documents private.” If I’m wrong, then cite the case which says so, please.
May 13, 2010, 9:19 amGuy says:
I really want to repeat myself here, as I believe the above argument utterly demolishes any serious SDP claim in light of the death of Lochner. Which probably is the reason why the opponents of the mandate are making the less apt Commerce Clause argument- it’s not entirely foreclosed by precedent, and may get headwind from Lopez and Morrison. However, I know that the Justices are smart enough to know SDP when they see it, regardless of what disguises it may choose to wear.
May 13, 2010, 9:22 amMalvolio says:
Right or wrong, that’s what the government does now — indeed that’s most of what a government does now.
Deciding to purchase health insurance, it can be argued, is purely economic, but having health insurance certainly isn’t. The insurance company has complete access to all your medical records and can order new tests if it’s curious about anything else.
So if the police told you, “You don’t have to submit to a warrantless search — just pay this ‘tax’” , you would find that wholly appropriate?
May 13, 2010, 9:28 amBlue Neponset says:
I find this type of argument to be semantic.
Would you be OK with the idea of Congress imposing a health care tax and then gaving everyone who had health insurance a credit for the exact amount of that tax?
May 13, 2010, 9:28 amGuy says:
The first example raises serious equal protection concerns, the second appears to fail the rational basis test (if you wish to propose a rational basis I fail to imagine, please do so).
May 13, 2010, 9:45 amVaLawGuy says:
Yes. Sort of like we have a tax-free right to free speech or freedom from unreasonable search & seizure.
And speaking of the First Amendment, I wonder if there is a compelled speech issue here. That is, the government will force individuals to either disclose personal information or pay a fine (a “tax”).
May 13, 2010, 9:53 amNamae Ga Nai says:
How will Florida ever manage to pay it’s massive legal bills?
$50,000 per year is bad enough, but once you split that among 13 states, it becomes absolutely crushing.
May 13, 2010, 10:11 amBlue Neponset says:
You have to disclose personal information to set up an IRA or buy a house or obtain a mortgage. If I don’t want to release my personal information to obtain those tax benefits then I don’t have to, but my tax bill will certainly be higher.
How is the health insurance mandate penalty any different?
May 13, 2010, 10:14 amNamae Ga Nai says:
I’m not aware of any constitutional right to housing.
Would a substantial tax benefit for people who agree to not criticize the government be constitutional?
Your question isn’t helpful or interesting because the core issue isn’t over the limits of the word “coerce.”
May 13, 2010, 10:18 amDerHahn says:
Scattergood answered the question in the affirmative before you asked it @9:10.
The argument is not semantic. It represents an attempt by Congress to disguise the real cost of providing universal health coverage by creating an ‘unfunded mandate’ on individuals.
Funding the program directly through tax collections wouldn’t make it any more palatable to opponents but it would at least enable us to have an honest debate about the costs, which is something proponents seem happy to avoid.
May 13, 2010, 10:20 amMalvolio says:
What infuriates me about this whole “Is it a fine? Is it a tax? Is it a dessert topping?” thing is how people use it to defend the law.
If the law admitted it was a fine, it would be obviously subject to due process: courts, lawyers, appeals.
If the law admitted it was a tax, it would arguably violate the prohibition on direct taxes (and abrogate Obama’s no-additional-taxes pledge).
But since the mandate’s exact nature is so nebulous, its partisans can shift their definitions from one to the other as needed.
May 13, 2010, 10:21 amNobody Really says:
*states explicitly require women to pay extra*
So there is a state which requires insurance providers to charge women (as opposed to men, I guess) to pay more for plans that provide abortion coverage. Can you name such states and how much they mandate the premium increase to be?
Or do you just mean that if the state does not interfere with the reality that offering insurance which provides more coverage costs more and may be more valuable to some and therefore will command a higher premium that is a fine? In other words all insurance premiums are controlled by the state implicitly and if they let insurance companies charge a price that disfavors a certain class of people that is the equivalent of a fine?
If that is the case, is the state fining old people by not forcing life insurance premiums to be equal for a 25 year old as for a 50 year old?
May 13, 2010, 10:27 amBlue Neponset says:
I don’t think you understand my point. The health insurance tax and the tax credit would cancel each other out for people with health insurance. As a result, the amount of revenue collected would be exactly the same as it is with the current health care plan. The only difference is you would be rewarding people for behavior instead of punishing people for inactivity.
May 13, 2010, 10:27 amGuy says:
Why isn’t it an income tax? Isn’t it capped at a certain percentage of income?
Also, is no one interested in tackling my above argument for Constitutionality under the Due Process clause? Or does everyone concede that there is no SDP problem? If there is no SDP problem, then this whole “taxing a right” business is inapplicable.
May 13, 2010, 10:46 amJohn Henry Eden says:
So according to some, the federal government punishing citizens for inactivity (failure to purchase health insurance) is fine. Does it matter what the punishment is? Would you still be in favor if the punishment was years in prison?
May 13, 2010, 10:51 amGuy says:
The Eighth Amendment would be relevant in that analysis. That’s assuming we treat it as a fine, if it’s an income tax, there is clearly no problem.
May 13, 2010, 10:53 amJohn Henry Eden says:
Penalty. Fine. Income Tax. Whatever you want to call it. What happens when I decide not to pay?
May 13, 2010, 10:58 amBlue Neponset says:
I don’t see it as punishment. People who don’t have health insurance are costing the rest of us money. Why should the uninsured get the benefits of our healthcare system without paying anything into the system?
May 13, 2010, 11:05 amGuy says:
It’s unclear, the law prevents additional penalties for failure to pay the penalty, though I think the IRS can take it out of your future returns.
May 13, 2010, 11:08 amJohn Henry Eden says:
Under the current system, the uninsured are responsible for 100% of the bills they incur. Small payments most of the time. They are paying or going bankrupt. What makes you think they are getting a complete free ride?
Obamacare simply shifts the responsibly of the uninsured’s bill on to the tax payer.
May 13, 2010, 11:20 amVaLawGuy says:
The difference is that setting up an IRA, buying a house, or obtaining a mortgage are all activities you choose to undertake. Whereas the health insurance mandate requires people to do something (buy health insurance & disclose personal information to third parties) or else pay a fine/tax.
I guess the question is whether this is a real or a semantic difference. It seems that at least two plausible ways of conceptualizing this exist: (1) The government increases everyone’s income tax by $X to provide health insurance, then allows a tax deduction of $X for those who opt-out of the government program and purchase private health insurance; or (2) The government tells people that if they don’t buy private health insurance, they will have to pay a fine or additional tax of $X (for the government to provide those services).
It seems like more than a semantic difference. I can’t think of any other examples (perhaps others can) of times when the government has decided to provide a new public service but allowed people to opt-out and deduct the from their income taxes the amount allocated to the new service if they purchase the new service from the private sector. One close analogy would be public schools, but the government doesn’t allow people a tax deduction if they send their kids to private school or home school them.
But back to your comparison, if you decide you want to buy a home, you may get certain tax benefits for a limited period of time. But if you don’t buy a home, you aren’t penalized by paying an additional tax for each year you don’t own a home. In contrast, if you don’t buy health insurance, you will continually pay a fine/tax. And this distinction is made clear in that it is designed to coerce people into buying health insurance.
May 13, 2010, 11:20 amBen says:
This is a novel argument:
So all I have to do is come up with some grand scheme to do something like control all US energy production, and then all significant parts of that scheme are automatically “necessary and proper”. So Federal power is effectively unlimited as long as the schemes are grand enough and complicated enough.
Government controlled health care is not, and never has been, necessary. From the beginning of the world and continuing until 2014, we have lived without government controlled health care here. It’s clearly not necessary. So it could never be “necessary and proper” because of what the word “and” means.
May 13, 2010, 11:25 amBlue Neponset says:
The issue is privacy though. Regardless of why I get a mortgage or health insurance, in both cases I have to give a private sector entity my personal information if I want to reduce my tax burden. Why would the manner of the tax, deduction or credit affect the constitutionality of giving personal information in order to obtain a tax benefit?
May 13, 2010, 11:30 amGuy says:
You read a stronger meaning into the word “necessary” than the Framers intended, The Federalists beat the Republicans on this point long ago, but to the extent you want a textual basis, compare to this excerpt, from Article II section 3: “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;”
Clearly the Framers did not enjoin the President from proposing laws unless he honestly believed it to be “necessary” to do so as you use the term here. Also the word “and” would render “expedient” superfluous unless it means “as he shall judge necessary, and also as he shall judge expedient”.
Besides, regulation of health care is not just “necessary and proper” to regulate interstate commerce, it is regulation of interstate commerce. The mandate is what is “necessary and proper”.
May 13, 2010, 11:41 amMichael says:
To be honest, I’ve never quite understood why Roe v Wade doesn’t completely invalidate almost the entirety of the FDA. Well, I mean I understand, because Roe was explicitly construed to achieve a political end, not as a well developed extension of Constitutional law. But I’ve always wondered why some cancer patient somewhere who is denied access to some experimental drug doesn’t sue citing Roe as precedent. Is there any case law on this?
May 13, 2010, 11:46 amGuy says:
This is not a “novel” argument at all, it’s been the law of the land at least since McCulloch v. Maryland, decided in 1819.
May 13, 2010, 11:50 amGuy says:
Roe was about freedom to choose whether or not to reproduce, as found in Griswold, what does that have to do with medicine generally?
May 13, 2010, 11:52 amHyphenated American says:
Again, plenty of people on this site claim that people will be paying taxes if they refuse to buy insurance. This is patently untrue, since the top legal mind and top executive, and top seller of the Obamacare bill – i.e. our president Barack Hussein Obama told us that this is NOT a tax.
May 13, 2010, 11:57 amDo you really want the right-wing opponents to call Obama to testify under oath about this?
Ben says:
Federal power is therefore effectively unlimited and the 9th and 10th Amendments are moot. That’s good to know.
May 13, 2010, 11:57 amKamal says:
Kopel, nice to know that you are so unsure of your own arguments you need to resort to ad hominem attacks against it (“obamacare”,”obamacare”,”obamacare”!).
I’ve made this point elsewhere, and will continue to call people out on it. It shows where your arguments really stem from and it’s not based on law.
May 13, 2010, 12:06 pmzuch says:
Prof. Kopel:
So where does that leave mandatory reporting laws? How about tax returns? Aren’t they an “invasion of privacy”?
Not to mention, there’s is no such “compulsion”. Individuals may elect to pay the penalty. And nowhere in the law does it compel either DNA or urine samples.
Cheers,
May 13, 2010, 12:12 pmzuch says:
[from the complaint]: “… a right retained by the people under the Ninth Amendment…”
I hear “penumbras” echoing somewhere….
Oh, yes:
[from the complaint]: “… as emanating from the First, Third[!}, Fourth, Fifth, and Ninth Amendments….”
Strange that these rights to privacy didn’t motivate these people to rise up in arms all those years that gays were persecuted for
sodomywhat they did in the privacy of their bedrooms….When “rights” are selective, you know, the ones that you think important, you’ll just have to accept that others may not feel quite the same urgency about your own concerns, and they may be quite disposed to letting your obsessions lay unrequited. Which is why the ACLU is far better and more honest than the Cato Institute at these kinds of things.
Cheers,
May 13, 2010, 12:26 pmCrazyTrain says:
McCulloch was decided by an actervist Judge — everyone knows Marshall, like his counterpart Brennan, is the ultimate actervist!!!
May 13, 2010, 12:27 pmGuy says:
You exaggerate slightly, though you’re right Congress’ power can be quite broad, especially today, when things are linked into interstate commerce than they were at the time of the framing. Out of curiosity, would you object to this law on Constitutional grounds if passed by a state? Or do you think an individual mandate is properly within the domain of state authority? If the former, SDP is the better path to take, (though as I pointed out above, I consider that argument to be quite weak as well).
May 13, 2010, 12:34 pmzuch says:
I do note that the “freedom” that these people are demanding is the freedom to not have health insurance. Granted, we don’t usually consider the merits of respective “freedoms” based on their rationality, but there is a general sense that the freedoms that we exalt the most are ones that are considered both to be important to individuals and to have salutary effects on the nation as a whole and the body politic (see, e.g., freedom of speech).
Do you think that a “freedom” that ought to be expressed (and defended in such a way) would be, for instance, the “freedom” to gamble? Would someone have a cause of action in demanding that gambling be made available to him/her without having to go to an Indian reservation or getting on a boat? Why or why not? Can a state ban alcohol entirely? Can the feds (I know they did it through Constitutional amendment the last time, but that is not strictly necessary, AFAIK)?
Cheers,
May 13, 2010, 12:37 pmSteven says:
I’m glad someone is making these arguments. In essence, they’re calling the progressive’s bluff that this reform was really about insurance companies. It, in fact, was regulation of the population. By mandating / regulating insurance coverage, the goal was to create forced equality of coverage for people… a obvious violation of their right to privacy and free association (i.e., taking away the right to buy the insurance of their choice, interfering with their choice to pay more for the medical services, and by regulating / interfering with doctors… removing their free choice to pick treatments they think would be best / that they were willing to pay for).
May 13, 2010, 12:39 pmzuch says:
The FDA forces all people to buy prescriptions of only “orthodox” drugs (at the prevailing price). Doctors can’t just hang out a shingle; they are required to meet certain standards. Is there some Constitutional right to “alternative medicine”, no matter how whacky? As the complain notes, Medicare and Medicaid don’t cover all “doctors’. Are these programs a violation of a fundamental Constitutional right?
Cheers,
May 13, 2010, 12:45 pmzuch says:
Not exactly. They make the Commerce Clause argument as well. The “kitchen sink” argument would have exceeded the page limit, though, so it was omitted.
Cheers,
May 13, 2010, 12:49 pmNobody Really says:
Obamacare has become an accepted non-pejorative term used by both supporters and detractors of the law (although used more by detractors – kind of like the “Right to Life” “Right to Choose” divide). Keeping on pointing out just shows that you are not interested in serious argument, but would rather just nitpick on semantics.
May 13, 2010, 12:51 pmGuy says:
See my statements above addressing the quality of the SDP argument here and here. The law is not intended to paternalistically control people, but rather to fix the free rider problem created by eliminating the preexisting condition exception.
May 13, 2010, 12:51 pmKenneth Brooks says:
FOUL FOUL. I was working on such a lawsuit. I even blogged about it a few days ago on this website. Well anyway, I am more than grateful that a party, finally, realizes the problem with the healthcare bill. It clearly violates the First Amendment Right to Free Association. I think it becomes clear why the Second Amendment Exists. Let’s say the the Supreme Court rules that this law violates the First Amendment Right to Free Association and the Executive Branch and the IRS decide they want to enforce it anyway, because the tax revenue is just too tempting. It would be left to the citizens to ensure that the Supreme Court opinion is adhered to.
May 13, 2010, 12:57 pmzuch says:
You don’t like HCR. If you don’t like it, you can elect government officials to change the policies of the government and repeal it.
If there is a substantial genetic component of such compulsive/obsessive behaviour, BTW, we might applaud the freedom to opt out as being the long-term salvation of humanity….
Cheers,
May 13, 2010, 12:57 pmKenneth Brooks says:
With respect to pre-existing conditions, it is unconstitutional pursuant to the 13th Amendment for insurance companies to deny coverage based upon pre-existing medical conditions that result from an individual’s genetic make-up. The Thirteenth Amendment is the 19th Century’s mind of stating that no individual shall bear a badge of slavery based upon genetic make-up. That provision in the legislation was to render moot any claim arising against and insurance company, because of denial of coverage based upon a pre-existing conditions. Now with modern gene analysis it is clear what conditions are genetically based and which are not. ANY insurance company that has denied coverage based upon pre-existing genetic conditions has violated the Thirteenth Amendment, in my opinion. Should one of these cases ever reach the Supreme Court of the United States and found to be a violation of the Thirteenth Amendment, then every single denial of health insurance coverage will be subject to litigation, becasue court decisions are retroactive. This legislation seeks to prevent that age-old practice of denial based upon pre-existing conditions ever bening litigated, becasue legislation is prospective.
May 13, 2010, 1:02 pmGuy says:
You’re insane.
May 13, 2010, 1:04 pmGuy says:
That’s even more atextual than modern 11th Amendment jurisprudence, it would be easier for me to argue the PorI Clause, by analogy to the P&I Clause, conferred general police power on the Congress.
Also, what of nongenetic preexisting conditions? Or preexisting conditions acquired after birth but not covered because parents don’t buy health insurance for their children?
May 13, 2010, 1:07 pmzuch says:
“Straw man”. No one said “complete[ly] free”. If they go bankrupt, who do you think is left holding the bag? How, in the end, does that affect medical costs?
Cheers,
May 13, 2010, 1:13 pmloki13 says:
Yes, but it isn’t under Roe. The DC Cir. recently rejected a challenge (brought under regular old textual due process) the the FDA’s procedures for experimental medicines for terminally-ill patients, contra Boston Legal. See Abigail Alliance v. von Eschenbach.
May 13, 2010, 1:16 pmzuch says:
… and look where it’s left us. But FWIW, I didn’t realise that the Yoo Ess of Effin’ Aye was 6006 years old.
But “government controlled health care” seems a bit of an overstatement. Compare it to, government control of drugs, ferinstance…..
Cheers,
May 13, 2010, 1:29 pmJohn Henry Eden says:
The currently uninsured will use more medical resources because they will no longer spending their own money.
ObamaCare doesn’t squeeze more money out of the people who go to the ER as their primary care doc, it squeezes it out of the young and healthy who don’t use resources, businesses and all of the tax payers through high taxes.
May 13, 2010, 1:30 pmKamal says:
Actually, when used by supporters it’s an attempt to deflate the negative air associated with it; but they shouldn’t use it either if they wan’t people to listen to the argument.
And it’s not just semantics, it’s important. The reasoning behind detractors using “Obamacare” illustrates why they don’t support of the bill congress wrote. It’s the same flawed reasoning democrats used when they said “Bush’s tax cut for the wealthy”. They would have gained a lot more supporters if they argued the issue; rich people are getting richer and poor people are getting poorer and we don’t need to help it along.
May 13, 2010, 1:35 pmJohn Henry Eden says:
Anyway, if an uninsured patient runs up a bill he won’t pay, that’s between the doctor and that patient. If that doctor wants to charge me more to make up for his loss, that’s between me and my doctor.
Government should not be involved at all.
May 13, 2010, 1:35 pmGuy says:
Then you go bankrupt, the hospital charges the extra to other patients, and everyone insured pays for it in their premiums, In other words, the insured are subsidizing the catastrophic care of the uninsured. Your lack of economic knowledge is troubling.
May 13, 2010, 1:40 pmJohn Henry Eden says:
“The proposal I’ve put forward gives Americans more control over their health care by holding insurance companies more accountable” -Barack Obama 3/3/10
You really need to tell this Obama fellow to stop claiming this healthcare legislation as his own.
May 13, 2010, 1:42 pmzuch says:
Quite true. The prevailing mindset is that anything that Obama does (thus the appellation “ObamaCare”) is per se wrong. Any perceived (or imagined) infirmities, they want to “end it, not mend it”. The Republicans were quite clear on this during the ‘debate’, despite their patently false claims to the contrary (putting forth an “alternative” HCR bill that was just a bunch of “talking points”, after presenting an “alternative” budget that was just a bunch of blank pages). Their loud and unequivocal verdict was “No!!!!!!”
Cheers,
May 13, 2010, 1:47 pmzuch says:
I think you need to press on with writing that “lawsuit” and waste less time here on the blogs. Just a hint: You’ll be able to type faster if you put down the gun.
Cheers,
May 13, 2010, 1:50 pmKenneth Brooks says:
Well Guy you obviously are unaware of when President Jackson ignored Chief Justic Marshall’s order. If I am insane you are uninformed-uneducated is probably a more apt description of your being.
May 13, 2010, 1:51 pmChris Travers says:
How do you figure? I thought Citizens United was a pretty good ruling (and pretty much exactly what the ACLU advocated in their brief).
May 13, 2010, 1:56 pmKamal says:
Obama did put forward his own proposal but that is not what passed and not what is being refereed to as “obamacare”. It was the senate specifically who made this bill as ugly as it is today by dropping the public option.
May 13, 2010, 1:57 pmJohn Henry Eden says:
Do you not understand that the whole point of ObamaCare is to force tax payers to subsidize the currently uninsured? $1,000,000,000,000+ over 10 years. As I already said, if the doctor wants to charge me more money to make up for the uninsured, it’s between me and my doctor. You and the government need to keep out.
May 13, 2010, 1:59 pmKamal says:
It shouldn’t be forgotten that there was a very similar anger towards Bush which distracted many people from arguing against the very wrong policies hes pushed for. People spent so much time focusing on his lack of intelligence and how evil he was and didn’t spend time on the more substantive issue of his policies.
May 13, 2010, 2:01 pmzuch says:
What’s that matter with them? Why don’t they just go slink off and die?
Maybe we ought to “fix” the law by changing it so that no insurance is required, but that those that choose not to buy insurance are prohibited from entering into any insurance plans forever after … and why stop there?; since “corruption of blood’ only applies to treason, we could extend the prohibition to the seventh generation.
On a less serious note, there is a counter claim that medical expenses increase for those with no insurance, as they forego preventative care, and seek treatment only after progression of illness has proceeded to the point where it can no longer be ignored, but is most expensive to treat.
Cheers,
May 13, 2010, 2:03 pmJohn Henry Eden says:
http://tpmlivewire.talkingpointsmemo.com/2010/03/obama-give-my-health-care-proposal-an-up-or-down-vote-in-the-next-few-weeks.php
The healthcare legislation Obama is claiming as his own in this article is the “ObamaCare” we know and love today.
May 13, 2010, 2:04 pmChris Travers says:
Correct, which is why I want Obamacare (TM), not the PelosiCare that was passed.
I don’t like bait-and-switch :-)
May 13, 2010, 2:08 pmzuch says:
Not sure where you get that. I was opposed to his breaking the laws, and opposed to his starting unnecessary wars, and opposed to his attempts to
get rid ofprivatize Social Security. I was opposed to his claims ofroyalexecutive privilege. I was opposed to his institution of torture and detention in “black holes”. I was opposed to his attempts to gut environmental protections and selling off federal assets to his cronies. I was opposed to his repeated and blatant lies to the American public. Anonanon….And I don’t think I was unique in that. BDS is a manufactured syndrome; projection/propaganda from the right. They manufactured it because they didn’t want to [couldn't?] defend him on the (dis)merits.
Cheers,
May 13, 2010, 2:11 pmChris Travers says:
In the majority of areas I care about most, I think Obama’s record has not been very good. His record on civil liberties in the face of the so-called war-on-terror has been at least as bad as his predecessor. His record of transparency in government has been similarly abysmal. There are certainly some good things he has done, as there is with any president.
I also think he completely mismanaged the health care reform process (he should have had his staff draft the law and submit it to Congress instead of inviting the sausage-making machines to do their work), and that wall street reform promises are currently very hollow.
In some areas I think he’s done a good job, but oddly these are the mostly same areas I thought Bush did a good job (though Obama’s done a far better job than Bush on the issue of torture)…
May 13, 2010, 2:15 pmChris Travers says:
Agreed on these points. Why did you disagree with Social Security Reform? I disagreed with it simply because I thought that the change was not properly considered and would be extremely disruptive. Sorta like my thoughts in health care reform.
Regarding unnecessary wars, what are your thoughts on Clinton? Obviously Obama, having inherited the Bush mess, doesn’t have the resources to go starting unnecessary wars, so we will have to leave him out of it.
Granted Obama’s helped to correct at least in part the torture issue, but how does he differ from Bush on detention black holes?
May 13, 2010, 2:21 pmRichard says:
Certainly, since the late 1930′s, the case law would support McCulloch and Gibbons based arguments on extending the necessary and proper and commerce clause arguments to health care mandates. But, would the the court expand those powers in the face of what appears to be breakdown in the political consensus and support for those ideas? Remember that McCulloch as applied to the United States National Bank was effectively if not legally nullified by Jackson’s veto a decade or so later.
As for striking down the health care mandate based on Roe or Griswold substantive due process arguments, I agree that to do so would be an acknowledgement that the argument is primarily political rather than legal. I would be greatly surprised by that result.
May 13, 2010, 2:22 pmChris Travers says:
Zuch:
Also, what do you think of the EFF’s claim that Obama’s use of executive privilege in defending telecom immunity has been worse than Bush’s?
May 13, 2010, 2:23 pmChris Travers says:
And anyone who’s thought this through realizes that the HCR bill (policy rather than legal arguments here) will provide a great incentive not to get insurance if you are younger and healthier, and with lower income esp. if (as I expect) the minimum penalty is ruled to be outside the legal forms of tax Congress can levy. 2.5% of income is NOTHING to pay for the luxury of being able to wait until diagnosed with diabetes or cancer to run out to buy insurance.
The only way out of this is to raise that penalty to the point where it becomes compulsion. “Nobody is forced to” may be true today, but such a system, as the advocates of this approach note, is unsustainable in the long run unless the purchase is truly mandated.
May 13, 2010, 2:28 pmzuch says:
It appears that the “black sites” continue. Horrible.
He flip-flopped on warrantless wiretapping.
And he’s pushing the “public safety exception”.
IOW, he’s perfectly horrible on civil liberties (but I’d say no worse than Dubya).
In some areas, yes (partuicularly when he lets the NI community pull the strings). In some areas, no.
I disapproved of Clinton’s use of cruise missiles, and yanking the inspectors in 1998.
Agreed. Hopefully, he’ll have learned something.
No, I think they are the same … and stem from the same source.
Cheers,
May 13, 2010, 2:37 pmChris Travers says:
What about Operation Gothic Serpent? Also, was Kosovo a necessary war?
Arguably Clinton was involved in many more unnecessary wars and military operations than Bush was.
However, I appreciate that we see eye to eye on most of these issues.
May 13, 2010, 2:44 pmJohn Henry Eden says:
Or we can just eliminate EMTALA, favorable tax treatment for employer group health plans, and allow interstate insurance competition. HSAs with HDHPs (AKA: True health insurance) will replace the health prepayment plans we have now.
By the way, does your side view RomneyCare a success or failure?
May 13, 2010, 3:00 pmBruce Hayden says:
Let me suggest that Zuch’s use of HCR (presumably Health Care “Reform”) is even more misleading than is ObamaCare. If it had been called Health Care “Regulation”, than might have been accurate. But there was little, if any “reform” involved, just a lot of new regulation. Thus, I would contend that “ObamaCare” is more accurate, but maybe “ObamaPelosi&ReidCare” would be even more accurate.
May 13, 2010, 3:02 pmChris Travers says:
My side? I have a side? I think this piece from the NYT suggests that “success” is too strong a word.
(Given that I oppose this HCR but think Obama was a better choice than McCain, my side probably consists just of me.)
May 13, 2010, 3:07 pmGuy says:
Yes, the political situation today, both in terms of relative institutional power, the issue before the Court, and the political forces in the parties, is all but identical to that one, leading one to believe that contempt of the Supreme Court by President Obama is a likely one… wait, no, that’s insane.
May 13, 2010, 3:39 pmJohn Henry Eden says:
Umm…yeah. You are not special. You are not a beautiful or unique snowflake. You oppose ObamaCare because it didn’t go far enough.
May 13, 2010, 3:46 pmChris Travers says:
No. I thought Obama’s proposals during his campaign were modest and non-disruptive, unlike any proposal since.
Also, regarding Commonwealth Care, it’s clear that it didn’t meet it’s own goals. Regardless of what one feels about HCR, I don’t think one can consider the program a clear success (though maybe the Know-Nothings will disagree with me).
(Know-Nothings being the Anti-Immigrant Right…)
May 13, 2010, 3:48 pmzuch says:
Hey, feel free to skip your preventative checkups, and wait until you’re so sick that even you know it’s time to sign up for insurance (and then wait for the paperwork to go through). That seems like a prudent and fiscally sound policy.
You know, that’s not much different than what we have now, where you can go to the ER when you’re in imminent danger of death or severe bodily harm … and then waltz out of your payment obligations. That seems like a quite fair way to do things, no? If not, and if people like you continue to be irrational about the big picture, then how do you suppose we ought to fix it? Anything like the Republican
plan“talking points” pretending to be a HCP?Cheers,
May 13, 2010, 3:48 pmGuy says:
What expansion? Congress isn’t touching any substantive matters it doesn’t already have clear jurisdiction over, there is no broad or strong public opposition to the bill, despite what you might think from being exposed to the media, and the Court is unlikely to narrow (and yes, it is a narrowing) the Commerce Clause authority to strike down a centerpiece of the administration’s legislative agenda.
May 13, 2010, 3:51 pmMcCulloch‘s precedential effect, and its influence in future cases was in no way diminished by the veto, so I don’t understand why you mention it.
John Henry Eden says:
I’ll give a 4 star preventative exam right now. Stop smoking. Eat right and exercise.
That’ll be $1,000,000,000,000 please.
May 13, 2010, 3:53 pmChris Travers says:
Wouldn’t that lead to a situation almost identical to what we have today? I mean, for that to work, the federal government would have to step in and regulate the industry in rough ways similar to what we have today?
May 13, 2010, 3:55 pmChris Travers says:
Yeah, but that’s only for stabilizing care. Chemo for cancer treatment, etc., wouldn’t be covered.
Honestly even when I have insurance, I almost never go to a check-up. I contact my doctor when there’s a problem that raises a concern. Works much better. (Yes, I do things like check my own vital signs periodically, no need to pay a doctor to keep records of that.)
May 13, 2010, 3:57 pmChris Travers says:
One note here.
The Republican “talking points” would have lead us inexorably to substantially what we have today if they were the basis for policy. I don’t have any respect for the GOP on this issue either.
May 13, 2010, 4:02 pmzuch says:
Apologies, Chris: I don’t think that you were an advocate of the status quo or freeloading per se. But the question remains: What to do about the problem? I know you said that Obama’s previous inclinations were closer to what you thought. Which ones? Can you be specific?
Cheers,
May 13, 2010, 4:04 pmJohn Henry Eden says:
No, it’ll lead to the end of employer tied group health plans and the rise of individual policies. Cheap high deductible plans will dominate.
The real savings will come when people start spending their own money under these high deductible plans. $100 for Lipitor or $4 for lovastatin. The current wasteful prepayment health plans picks the former. The free market picks the latter.
May 13, 2010, 4:07 pmChris Travers says:
But the only way that this would work would be with federal regulation supplanting the issue of what the weakest state allows. You’d still have to have uniform federal regulation of state insurance plans unless each state can still dictate all of the terms by which policies can be offered in their state (which undermines your plan).
Hence congressional sausage making.
May 13, 2010, 4:21 pmDuracomm says:
Those of us in the reality based community think putting George Bush in charge of our health care is a bad idea.
After eight years of slamming bush for his stupidity and incompetence it is interesting watching the liberals reach a state of pants wetting excitement at the prospect of getting a system that is going to put the next George Bush caliber president in charge of their health care and well being.
The. mind. boggles.
May 13, 2010, 4:24 pmChris Travers says:
BTW, I agree with your basic approach here though. I think a far better approach would be to require the same sorts of consumer protections for non-emergency medical care as we get for, say, car repairs. (Estimate in advance, a chance to shop around, etc.)
I wouldn’t request repealing EMTALA. The major reason here is that in many areas, proving you can pay before being admitted to the ER may be difficult, and may cost lives even of those who can pay. In a medical emergency, the priority needs to be on stabilizing the condition of the patient.
May 13, 2010, 4:30 pmChrisTS says:
Exactly what powers will any President have, under the HCAct, to manage individual health care?
May 13, 2010, 5:30 pmDuracomm says:
ChrisTS,
For years the argument has been (seen not infrequently on these comment threads) that the reason government programs fail was because the wrong people were in charge of it. Katrina and FEMA played prominent roles in that argument.
There is no doubt that the obamacare bill provides unprecedented levels of government management of the healthcare system.
So according to the argument liberals / progressives have made for years getting the wrong president runs the risk of causing significant damage to the shiny new government healthcare program..
Worse obamacare puts all of our healthcare eggs in one centralized, easy to damage location.
The inevitable pushback that government is not taking over healthcare ignores one of the very early impacts of the legislation. It has already caused many companies to consider terminating their coverage of retirees.
Witness the rapidly canceled waxman hearings for documentation of this.
May 13, 2010, 5:48 pmChris Travers says:
Assuming a unitary executive for a moment…..
Have you looked at the bill in order to understand what powers DHHS acquires in this legislation?
May 13, 2010, 6:13 pmChris Travers says:
I think there are a few very important proposals Obama made during his campaign. These included:
1) Opening up the federal insurance pool, providing that the program covers it’s costs.
2) Mandating that businesses which are not small purchase insurance for all full-time employees or pay a penalty.
3) Providing other opportunities for collective bargaining of insurance policies.
Of these, only really one of them ended up in the current bill.
Maybe some would argue that this wouldn’t go far enough. I know that many Republicans argued that these three proposals were going the wrong directions. I objected to McCain’s counter-proposals because they would fundamentally require Congress to regulate all insurance in the country.
Certainly that wouldn’t be enough to solve the problem. However, the only way that these will get solved is through state/federal cooperation anyway, unless we want to disturb the current system to the point where we depend on a shiny new bureaucracy which must work without flaws the first time. Ideally the other element here which was missing from both parties’ proposals should be more support (perhaps including financial incentives) for states to address these issues themselves. In this area there are a few good areas in the current bill, but these areas are too centralized for my taste.
We’d do better with 50 experiments, with the states learning from eachother than a single experiment with no opportunity for comparison within the US.
May 13, 2010, 6:24 pmKamal says:
This is a good argument and I hope it is decided this year, as if it passed it would force democrats to make a push for a public option.
Guy, does the fact that a person can forgo providing this information at the expense of not getting a tax break make a difference here? Basically the same argument as why the government isn’t forcing me to be intimate with someone by giving me a tax break for having children.
May 13, 2010, 7:19 pmHans Bader says:
The privacy argument against ObamaCare draws some support from cases like Robinson v. Reed (5th Cir. 1978), which held that requiring a public employee to disclose facts about her home life in a diversity training seminar stated a claim for constitutional privacy violations.
Actually, it’s stronger than that case, because that case involved public employees, whose constitutional rights against the government are more limited than those of citizens at large because the government has proprietary prerogatives over them. See, e.g., Waters v. Churchill (1994) (government has broader control over public employees than over citizens at large); CarePartners, LLC v. Lashway, 545 F.3d 867 (9th Cir. 2008) (non-public employees need to show less to bring a First Amendment claim than do public employees; do not need to show speech is on a matter of public concern).
May 13, 2010, 7:26 pmDilan Esper says:
Does Hans Bader ever hold himself accountable for his declaratory statements about what the law is?
I mean, really, he always digs up some often obscure case or other that he says “proves” that his (usually right-wing extremist) legal position is right, but does he keep any sort of a scorecard of whether the courts ultimately accept or reject his arguments?
Because I’m never sure if he’s serious or a level.
May 13, 2010, 7:47 pmChris Travers says:
This is the argument that it’s necessary and proper. Furthermore I would personally conclude that some form of individual incentive to purchase health insurance would be clearly Constitutional. However, the question is whether THIS specific approach qualifies. I personally believe there are:
1) Due process/takings issues, particularly part-time expats and the like,
2) Taxation power issues, particularly for low-income individuals
3) Right-to-privacy issues
4) Separation of powers issues insofar as the DHHS secretary gets to define what off-exchange plans meet the requirement.
5) Commerce clause issues, insofar as the exchanges established are solely intrastate insurance pools.
Congress is IMO perfectly free to raise taxes for everyone by 2.5% and then give a tax break equal to the larger of either 2.5% or the current minimum penalty for those who buy qualifying plans… That would not be numerically identical to what we have today, particularly for low-income individuals.
May 13, 2010, 7:47 pmKamal says:
How is that analogous to what this bill requires? What does this bill require you to disclose? If it is a ‘requirement’ that you disclose something then what is a ‘requirement’ for? What do you get in return for disclosing this information, and what happens if you don’t? It seems to me that much is being made out of an imagined requirement.
I too could pretend to get upset that the government is requiring me to disclose personal information for a woman in order to marry and have children, thus enabling me to receive a tax credit for them.
May 13, 2010, 7:55 pmChris Travers says:
It’s not really a tax break but a penalty, the form of which depends on income.
If you make more than $27800 AGI, it comes out to be something like an additional income tax. However, if you make less than that amount, it comes out to be a fixed rate. At that point it’s clearly no longer an income tax.
May 13, 2010, 7:58 pmKamal says:
Or, instead of doing that, how about they leave taxes where they are (since CBO feels it may reduce the deficit), credit everyone the amount equal to the penalty, except those who receive the penalty, and build that scheme into the current tax rate. The net effect would be that we increase the tax of those who don’t have a plan, as this bill does.
May 13, 2010, 8:01 pmKamal says:
I’m trying to understand how that differs from the penalty for not having children. Is it because it’s a flat fine? Or is it because it’s explicit?
May 13, 2010, 8:04 pmSteve H in SLC says:
I think part of the confusion about the “privacy” issue comes from the fact that the privacy referred to in cases like Roe v. Wade is different from the kind of privacy we use in normal conversation.
The privacy in Roe v. Wade refers to the scope of decision-making, allowing individuals to make certain choices without government interference.
On the other hand, the right to “privacy” that people often discuss these days is more like a right to secrecy — to shield certain information and facts from public view or government knowledge.
I am not aware of a general constitutional right to secrecy, but I am willing to be proved wrong. For what it’s worth, it seems to me that the Robinson v. Reed case discussed above was not based on a right to privacy as in Roe v. Wade, but rather on the First Amendment:
Finally, regarding the argument about right to associate, that seems like nonsense to me. The government has the legal authority to force you to sit in a jury room with a bunch of strangers, or draft you into the army or navy where you have to live in barracks or on ships with a bunch of strangers. If those do not implicate the right of free association, I don’t see how buying health insurance would.
May 13, 2010, 8:10 pmChris Travers says:
With not having children it’s a spending power issue, not a tax power issue.
Giving folks a tax break would not be really different (and in practise isn’t different at all) from sending folks a check in the mail at least where the EIC is involved. That’s solidly within the spending power, is it not? (Deductions are a different matter, where Congress is reducing the amount of income they levy taxes on. That’s solidly within the 16th Amendment’s income tax power.)
But the question is whether the 16th Amendment allows an income tax calculation like:
Tax = AGI * tax rate + $695. I contend that the +$695 part is outside the 16th Amendment.
May 13, 2010, 8:15 pmRPT says:
Who’s campaign/lobbbyist/health care corporation is paying for this one?
May 13, 2010, 8:20 pmKamal says:
That +$695 seems very similar to the -$500 for each child I don’t have (or whatever that currently is.. i’m scared to check). I am not sure I understand how the child penalty is a “spending power issue”, since they are quite obviously taxing me more for not having children.
May 13, 2010, 8:21 pmzuch says:
How about pre-existing condition denials?
How would you deal with the “free rider” problem?
Cheers,
May 13, 2010, 8:43 pmKamal says:
Zuch, do you disagree with regulation of drug companies by the FDA? Or, as Obama said, with meat inspectors? How about regulations on how a house is designed? If not, what is the difference that makes heath insurance dangerous to regulate?
May 13, 2010, 8:53 pmChris Travers says:
The system won’t work unless it is high enough to be coercive.
Right now, if I get cancer tomorrow and I’m uninsured today, tough luck. Under the new program, I can take 2.5% penalty and wait until diagnosed with cancer to be covered for further treatment.
May 13, 2010, 8:57 pmChris Travers says:
I think the best way forward on those issues is to allocate money for state experiments and facilitate learning from those. I don’t see why states can’t solve these problems. The current insurance pools under the Pelosi-Care package are not interstate anyway.
May 13, 2010, 9:01 pmzuch says:
I didn’t say that. Chris Travers did. You should ask him.
Cheers,
May 13, 2010, 9:09 pmChris Travers says:
I have some issues with the way meat inspection is done in this country,* but in both these cases, one is regulating an interstate, tangible good. Here the attempt is at regulating a contract with, at most, intrastate implications (since the exchange pools are intrastate only).
* For example, witness the games over horsemeat plants, budgets, and the USDA.
May 13, 2010, 10:45 pmChris Travers says:
Sorry, that last reply was to Kamal….
May 13, 2010, 11:01 pmKenneth Brooks says:
You know Guy I don’t know what fantasyland you live in, but in case you didn’t notice, the federal government has undertaken several acts that the people do not desire. In fact, there is a DC Circuit case stylized as Tafas v. Dudas that invloved the USPTO undertaking actions in violation of Congressional legislation. In fact the USPTO’s solicitor is caught on tape during oral argument stating that the USPTO management knew the actions they were undertaking were inappropriate, but they did it any way. The USPTO is an executive agency. I am a realist who has been subjected to executive usurpation of established laws. It happens more often than not. Funny thing was it was a British company Glaxo Smithkline that made the USPTO stop. No Guy I am not insane I have a realistic perspective of reality.
May 14, 2010, 12:19 amRichard says:
No broad or strong public opposition to the bill? I have never seen anything like the opposition to this bill in all my years of following politics. People who haven’t voted in decades are registering to vote.
Nothing that I said disputes that McCulloch is a legal precedent and I would go further and say that it was a model of legal reasoning. I noted that the result in the case was incredibly unpopular and Jackson did state in his veto message that he thought the bank was unconstitutional.
Whether the Congress has jurisdiction to mandate individuals to buy health insurance likely has a foundation in commerce clause decisions but I’m not aware that it expressly has that power. That’s what I meant by expansion.
Never mind, we’ll have it your way. Would the court narrow the powers of Congress to strike down a centerpiece of the President’s agenda. I think there are at least four justices on the court who would love to do exactly that. One justice in particular has specifically written opinions critical of the overly broad interpretation of the commerce clause. Are there more? I don’t know.
But, I speak generally of the issues. Just a wild guess, but I’m thinking that many of the early cases are going to have standing and ripeness problems. Just a guess.
May 14, 2010, 3:10 amChris Travers says:
It seems similar, but if you are only allowed to tax income, it’s really very different because the 16th Amendment only allows the government to tax income, so subtracting from the amount owed is very different from adding to the amount owed.
BTW, there are two ways that having children reduces your income tax owed. The first is that the government will declare some of your income as non-taxable (i.e. it’s a deduction from taxable income). This works because you can tax up to 100% of a person’s income at the set rate. That’s clearly within the taxation power no matter how you look at it. As a deduction, however, one never gets to being paid by the government. It’s just a tax deduction. However, I don’t believe that the government can add material to your taxable income that’s not clearly realized (Suppose, you’re car is fully depreciated. you aren’t buying a new one. Hence you are saving money by not purchasing a car. I don’t think that’s derived income. OTOH, gifts and payments in kind are derived income).
The second is the “Earned Income Credit” which allows a person making less than a certain amount to have an amount deducted from his/her taxes. This is essentially the same as writing a check to an individual but then counting that against taxes owed. This could be seen as a spending matter. Even if it’s just a taxation power, there’s nothing more than saying “we won’t tax all your income.”
However if you are adding a fixed rate onto the income tax, then you are saying “we are taxing all your income and then some.” Kopel argues that even the 2.5% penalty falls in this category. That seems less sure to me though than the argument that even if that’s Constitutional, adding a fixed rate wouldn’t be.
Also note that a tax credit really is like a payment (hence spending) because theoretically it can reduce your tax liability below 0, meaning that instead of paying taxes, you get paid by the US Treasury Department. I’ve been there at least one year. Hence my thinking of it as a spending power.
In essence, I don’t think you can say “addition is the same as subtraction according to the 16th Amendment.”
May 14, 2010, 6:08 pmKenneth Brooks says:
See Guy: Look at this here story about BP being allowed to drill off the Louisana shoreline without permits and in violation of the Endangered Species Act. An executive agency MMS gave the permits in violation of the law. http://www.presstv.ir/detail.aspx?id=126495§ionid=3510203 And you think it is crazy to believe that the IRS and the Executive Branch would try to enforce the Health Care Act even is found unconstitutional. Wake up and smell the coffee. This is not your daddy’s country that we live in. It has changed.
May 14, 2010, 9:21 pm