The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss.
The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss.
yankee says:
“Health control?” Seriously?
You need some to fire whoever came up with that pejorative, even “Obamacare” is better.
August 6, 2010, 5:48 pmHans says:
Interesting. A judge in Virginia recently rejected a motion to dismiss Virginia’s challenge to ObamaCare, a challenge I thought had merit, as I explained earlier.
By the way, I wonder whether individuals could bring a privacy challenge to facets of ObamaCare. Existing challenges have focused on medical privacy; I wonder whether informational privacy might also be relevant, as I discuss here.
August 6, 2010, 5:54 pmSteve says:
I hope you didn’t overpay for that focus group. “Health control” indeed.
August 6, 2010, 6:20 pmA Law Dawg says:
Health control sounds like the worst kind of political gotcha terminology. Just call it an insurance mandate, since that’s what’s being challenged. It’s has the benefit of not only sounding vile but being unassailably descriptive.
August 6, 2010, 6:33 pmChris Travers says:
Is “lengthy brief” an oxymoron?
August 6, 2010, 6:43 pmBarack Hussein Obama says:
Bwahahaha! Soon I will control all the health in America, I already control all the hope, next I will go after the number two and my nefarious plot to become the lord of abstract concepts will be nearly complete!
August 6, 2010, 6:46 pmA Law Dawg says:
Seems doable since we are at war with an abstract concept (terror) and a set of inanimate objects (drugs).
August 6, 2010, 6:55 pmCrazyTrain says:
All your health are belong to us.
August 6, 2010, 8:41 pmU.Va. Grad says:
Hans links to his own article three times in one comment! Surprise, surprise.
August 6, 2010, 9:14 pmDavid Schwartz says:
I would encourage anyone who believes that States lack standing or that the mandate is constitutional to read this brief.
August 6, 2010, 9:53 pmSteve says:
I would encourage anyone who doesn’t understand confirmation bias to read your comment.
August 6, 2010, 10:41 pmDavid Schwartz says:
Steve: I have consistently argued both that the mandate is constitutional and that the States lack standing. I am recommending those who share my view read a brief that makes the contrary position precisely because it presents a very solid challenge to that view.
August 6, 2010, 11:23 pmGuy says:
I read it, and am unimpressed. I’ve always considered the standing issue a close one, but as for the mandate being outside the scope of the commerce clause, they simply assert that the commerce clause doesn’t reach “economic inactivity” without explaining why. Instead they resort to unpersuasive reductio ad absurdum and pointing out precedents talking about “economic activity”, simply ignoring the fact that the term is being used in context in contradistinction to “noneconomic activity” rather than “economic inactivity”. They also engage in the equivocation of slipping between “interstate commerce” and “economic activity”, failing to recognize that the latter is a broader category. If they wanted to argue that Congress can’t regulate things that aren’t directly in interstate commerce, that boat sailed in Filburn, so instead they resort to the nonsensical argument that the person must submit themselves to Congressional jurisdiction by engaging in economic activity (although still not engaging in interstate commerce) to satisfy the clause.
As for the argument that the tax is void as a “regulatory tax” they rely on laughably outdated and eroded precedent. The argument that it’s not an income tax I can’t comment on because I’m not familiar with the technicalities, but I’m skeptical given that it seems equivalent to an additional tax bracket being added and also by inferring based on the qualities of the rest of their arguments.
Finally, the argument that the changes to Medicare are unconstitutional (and violations of the Guarantee Clause no less) are absolutely insane.
August 7, 2010, 12:51 amrpt says:
Hans is still the champ of Self-referential confirmational bias! The Center for Corporate Enterprise pays him by the link.
August 7, 2010, 12:51 amGuy says:
The Due Process Argument is similarly ridiculous, the only part that would ever have not been laughed out of court is that it violates the “freedom to eschew entering into a contract”, but this isn’t the Lochner era anymore, and to the extent that argument might somehow have any force left it’s completely dampened by the fact that a person can simply choose to pay the penalty (which is basically just a tax incentive) instead.
August 7, 2010, 1:04 amPatty Shundynide says:
Typo/extraneous word at page 30 of the brief. “It was [sic] has been settled since McCulloch v. Maryland, 17 U.S. 316 (1819) . . .”
August 7, 2010, 4:59 amjrose says:
The plaintiffs offered three arguments for standing: 1) protecting a state’s right to enforce its own legislation, 2) state funds that must be spent in order to accommodate the increase in the number of people on Medicaid resulting from the mandate, and 3) non-severability between parts of the legislation that all agree for which the state has standing (Medicaid regulations) and the mandate.
The first reason was covered in the Virginia case, and is not persuasive because the only laws the states are unable to enforce are declarations that the states and its citizens aren’t subject to the law.
I’m not familiar enough with the legislation to judge whether the second reason has merit. Is there a brief from the government that addresses this aspect?
The third reason relies on an assertion that the Medicaid regulations are “incapable of functioning independently” (page 7) from the mandate. Although there are parts of the legislation that rely on the mandate, it doesn’t strike me that the Medicaid regulations do. However conceding that point, and therefore standing, haven’t plaintiffs undermined their argument that the mandate isn’t necessary and proper to put into execution legislation (namely, the Medicaid regulations that are incapable of functioning independently) deriving from an enumerated power?
August 7, 2010, 7:34 amJoe says:
I find constitutional arguments on the merits against the health law truly weak [this "inactivity" stuff is tedious, but it has been beaten to death already] but if people want to bring lawsuits about it, I’m all for it. I’m supportive of weaker standing requirements in most cases, though I’m somewhat dubious given the stricter ones in place these days (admittedly, they can be played around with depending on the subject matter and judges’ philosophies) if these will wash. The state laws that in effect nullify federal statutes (if I’m being loose in terms, I apologize, but that is what they seem at first blush) really seem dubious.
But, I really am not informed enough to know the details. Sue away, I say.
August 7, 2010, 9:51 amCornellian says:
Seems well within “necessary and proper” to me, at least as Scalia describes it in Raich.
August 7, 2010, 10:00 amMahles says:
One more: “health control”? Tee hee…
August 7, 2010, 10:47 amAllan says:
About that economic activity…
Don’t we have some mandated activty that we must participate in?
For example, FICA taxes. We must purchase retirement and disability insurance (Social Security).
If the argument is that we can mandate health insurance, but not this way, the obvious counterargument is, “let’s do it another way, then” and we have national health care from the federal government. The choice of “nothing” is not what the majority of people want, IMHO.
August 7, 2010, 11:39 amArthur Kirkland says:
The conservative attorneys general — most of whom are among the biggest nanny-staters in the United States — lost me when they whined about ‘limiting personal choice.’
Their politically inspired defense of Medicaid wasn’t very credible, either.
Given the number of lawyers listed on the brief, it is striking that not one was familiar with the relationship between hyphens and words ending with “ly.” Has Florida enacted a statute rejecting standard English as elitist?
August 7, 2010, 11:53 amGuest12345 says:
I would encourage anyone who learned a new idea refrain from using it in a discussion for at least twelve weeks to give themselves time to recognize the signs.
August 7, 2010, 11:59 amgeokstr says:
Yes, of course, it is a highly relevant comparison, having the freedom to choose whether to buy health insurance for yourself, or not, and having the freedom to choose to kill something (possibly someone) whose membership in humanity is still hotly debated, for little more than your own convenience, because you didn’t choose to either keep your zipper up and/or your legs closed.
More faux moral equivalency from the left. But hey, they both have the word “choice” in them, so that’s all that matters, right?
August 7, 2010, 12:25 pmJeff Norman says:
Well, yeah, taxes paid directly to the government are kosher. The challenge to the insurance mandate is over commercial inactivity, not any inactivity.
August 7, 2010, 12:47 pmSuperSkeptic says:
What about “noneconomic inactivity”?
August 7, 2010, 1:01 pmricky says:
“If the argument is that we can mandate health insurance, but not this way, the obvious counterargument is, “let’s do it another way, then” and we have national health care from the federal government. The choice of “nothing” is not what the majority of people want, IMHO.”
And? Are you saying the courts should somehow implement this?
August 7, 2010, 1:04 pmORID says:
This case reminds me of some interchange between Vader and Lando…
“Pray I alter it no further…”
Shouldn’t the states take up this with their Senators? I know…. laughable.
August 7, 2010, 1:12 pmSteve says:
We pay taxes to the government in exchange for privatized services all the time. If the government decides to privatize trash collection, I’m not sure why it’s constitutionally okay if I pay for it via taxes to the government but it’s unconstitutional if the government tells me to write my check directly to the trash collector.
However, if this litigation proves that there really is some constitutional requirement for the government to serve as middleman, the solution is easy: bring back the public option.
August 7, 2010, 1:29 pmricky says:
“However, if this litigation proves that there really is some constitutional requirement for the government to serve as middleman, the solution is easy: bring back the public option.”
If by this you’re suggesting they scrap the legislation and go back to the drawing board, I’m all for it.
August 7, 2010, 1:36 pmJeff Norman says:
I don’t think forced payments to a commercial trash collector would fit the definition of a tax. Also, your analogy seems imperfect, because the collection of trash is a vital service that involves no unnecessary middle man. By contrast, the required payment in the Affordable Care Act goes not to the provider (i.e., doctor or hospital) of the vital service (health care), but to an unnecessary middle man (insurance company). Forced direct payments to health care providers for services that might be rendered in the future, would still not fit the definition of a tax, but at least it would take insurance companies out of the picture.
Also, trash collection is usually overseen by local municipalities, whereas the controversy over health care is about the powers of Congress.
August 7, 2010, 3:12 pmArthur Kirkland says:
I was not thinking primarily about conservatives’ opposition to abortion — more about drug warriors, gay-bashers, Fourth Amendment whittlers, science-throttlers, and prudish prosecutions related to bad fiction and dirty movies — but abortion (and contraception, and gag rules) should be part of the pile.
August 7, 2010, 3:34 pmMartha says:
Don’t forget vibrator haters.
August 7, 2010, 11:00 pmjmaie says:
For example, FICA taxes. We must purchase retirement and disability insurance (Social Security).
FICA taxes are payable if you earn wages. Buying health insurance is required if you breath. See the difference?
August 7, 2010, 11:32 pmGuy says:
You only need to do the first to live if you weren’t born into an obscenely wealthy family? In any event, your statement is false, the penalty is only assessed if you make a certain amount of income.
August 7, 2010, 11:41 pmSteve says:
This doesn’t sound anything like a constitutional argument to me. If it’s within the power of Congress to enact a national health insurance program (i.e. Medicare-for-all) then it’s within the power of Congress to decree the mechanism by which it will be implemented. If it happens to involve an intermediary which you find obnoxious, I don’t think that makes the law unconstitutional.
August 8, 2010, 1:09 amJeff Norman says:
Payments to private businesses aren’t taxes.
August 8, 2010, 3:54 amjrose says:
I agree, but the tax in this case isn’t the payment to the insurance company, it’s the money collected by the government if you choose not to pay the insurance company.
August 8, 2010, 8:27 amJeff Norman says:
I understand, and it’s debatable whether or not that scheme is constitutional. But the example Steve proposed (which is what I responded to) would clearly not be a tax, so I don’t see what could make that constitutional. He wrote:
“If the government decides to privatize trash collection, I’m not sure why it’s constitutionally okay if I pay for it via taxes to the government but it’s unconstitutional if the government tells me to write my check directly to the trash collector.”
August 8, 2010, 2:25 pmTim says:
Connected to which enumerated power?
August 9, 2010, 1:16 am