Independence Institute Senior Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post. (Which is cross-posted on the blog of Ind. Inst. President Jon Caldara.)
Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is "obviously not"), and instead points to four problems under modern constitutional doctrine:
1. It is not based on any enumerated power of Congress, not even on a very expansive reading of the power to regulate interstate commerce.
2. It relies on Excessive Delegation of the type held unconstitutional in Schechter Poultry.
3. It violates Substantive Due Process, and interferes with doctor-patient medical decisions to a vastly greater extent than did the laws declared unconstitutional in Roe v. Wade.
4. It violates the Tenth Amendment by commandeering state governments.
A couple caveats: It's a blog post, not a law review article, so it just sketches out the above points briefly. It's obviously written in the spirit of starting a public dialogue conversation. In the spirit of constructive dialogue, we promise not to say that we "don't want the folks who created the mess to do a lot of talking." (By "created the mess," I mean the people who created the legislation with little apparent consideration for constitutionality, and who appear to have operated from the presumption that Congress can exercise powers which are not enumerated.)
Also, when Rob writes something on a blog, he is not setting out an official Independence Institute position, nor does he purport to do so. (The same goes for what I write on VC.) And while Rob and I agree on many constitutional issues, we do not necessarily agree on all of them; for example, he does not believe that the 14th Amendment, properly interpreted, protects unenumerated rights, whereas I do.
I hope to have the chance to interview Rob on an iVoices.org podcast in the near future, and will certainly study the Comments to look for serious, challenging questions to ask.
Is Obamacare Constitutional?
Never let a good crisis go to waste.
1. For a Commerce Clause argument to be taken seriously in this case I think you have to be able to argue that there is some reason why this HR 3200 is not legitimate under the commerce clause in a way that all other (major) federal legislation is legitimate. Otherwise we’re talking about a more general commerce clause argument. For the record I think there’s a lot of merit to the anti-modern-commerce-clause position, but I don’t think it’s helpful to bring it up in regard to particular bills like this, it’s more appropriate as a separate conversation. So how do we separate Health Care from every other (major) federal program that is ostensibly legitimate under the commerce clause?
2. I’m no expert on this area, but is a 1935 case on delegation *really* good law? I assume it wouldn’t have been cited if it was expressly overruled, but like the Commerce Clause argument this seems like more of an argument against the constitutionality of the administrative “branch” rather than a specific argument about the constitutionality of HR 3200. How is this delegation more extreme than other administrative programs?
3.1 Is Medicare Unconstitutional?
3.2 As long as people are allowed to privately contract for whatever medical service that they want (with their own money), how is it possible that there is an unconstitutional barrier between the patient and the doctor? In Roe a procedure was banned, HR 3200 doesn’t ban any procedures AFAIK.
3.3 If there is a substantive due process problem it seems more likely to be a restriction on how individuals are allowed to contract with their insurance companies (ie. Why can’t I make a contract to provide health care with an exception of pre-existing conditions?). This seems like basically the Lochner problem though, which is of course where almost all substantive due process arguments end up.
3.4 What if we stipulate that Roe was a bad decision (at least how it was decided) and shouldn’t be followed in other areas, do you still think there is a substantive due process problem?
4. Again how does this specifically violate the 10th amendment in a unique manner?
That's been the position of Congress for decades: in general, we need to beware of illegitimate expansions of Congressional power under the commerce clause; fortunately, there's no bill in particular that constitutes such an expansion.
is a 1935 case on delegation *really* good law?
That's why I read this blog. IANAL, so I didn't even know Supreme Court decisions had expiration dates.
Yeah, Brown v. Board is probably going to clock out soon, and Marbury is just toast.
That's my biggest constitutional beef. You can maybe argue that the feds can spend the Treasury anyway they want to create national health care, but forcing me to buy some sort of insurance is not part of any power I can find in the document.
He cites Schechter Poultry because it is the last case in which the Court struck anything down on delegation grounds (and, together with a case called Panama Refining, continues to be the benchmark against which delegation challenges are measured).
If they rely on or announce doctrines that have been greatly undermined by subsequent jurisprudence, and have been rarely or never confirmed in the intervening years by being cited as precedent or mentioned favorably, they're often little better than dead: you can expect them to be overruled when a case presents itself that makes it necessary to do so. For example, a lot of the late-19th-century 2nd-amendment jurisprudence, like Presser, falls into that category.
At least as applied in the house bill, the mandate is applied through the taxation powers under the Sixteenth amendment, which have generally been read to allow nearly any sort of tax for nearly any sort of reason, except where an enumerated right is explicitly violated.
1) Is the individual insurance mandate Constitutional?
2) Is the HB 3200 ban on off-exchange insurance sales Constitutional (the Senate bill does not have this problem btw)?
3) Is the witholding of ALL state funds for medical programs from noncooperating states Constitutional?
There are a few others too. However the blog post reads more like propaganda than like a real conversation-starter.
Yeah, but Presser was lame from the get-go. The court says that states may not seek to eliminate gun ownership because that erodes fundamental Federal constitutional interests in the militia. So courts read Presser as specifically allowing this sort of thing..... Same with Miller.
The interstate commerce power includes the power to extensively regulate the production of agricultural crops for personal consumption; this bill regulates a $2.5 trillion dollar industry that involves vast amounts of interstate commerce.
Also, the spending power includes the power to spend for the "general welfare." Social Security, Medicare, Medicaid, FUTA, the Veteran's Administration, the Black Lung program, ERISA, HIPAA, the Emergency Medical Treatment and Active Labor Act, numerous tax breaks and many more programs that have been upheld as constitutional.
These programs regulate health care to a great degree already, including almost all doctor-patient medical decisions of almost everybody aged 65 and older (a single payer program called Medicare), and requires that emergency rooms treat patients who admittedly cannot pay without compensation for their services. They regulate who can see which medical records, what benefit plans state can regulate, and how employers can provide benefits to employees in the private marketplace.
The amount of delegation permitted is modest compared to the SEC, NLRB or CFTC, all of which have been upheld, and differs little from Medicare Part D or Medicaid regulations in scope.
Rob Natelson's commandeering argument immediately argues against itself by providing an example of drinking age funding limitations that has been upheld as constitutional. He argues that a more extreme quid-pro-quo for limitation could be unconstitutional, but can't cite a single example to support his argument. Commandeering refers to a law that would order a state to enact certain legislation, period, not to a law that would cause a legislature to forfeit health related funds if it doesn't enact a health related program. Indeed, Medicaid's fund forfeiture rules are very similar to the ones being considered by Congress.
In MA, it was a tax penalty for failure to have coverage, which would presumably be constitutional under the 16A.
I think you mean a "conversation."
Combined with the necessary and proper clause, regulation of private health insurance (what it must cover and can't exclude) is constitutional under the commerce clause and maybe the spending clause as well (given that Medicare is a huge part of health care expenditures, in order to make Medicare work you must regulate private insurance as well).
Taxing people who don't buy health insurance is constitutional under the taxing clause.
How much legislation in the history of legislatures has not been defended by the assertion that it will serve the "general welfare"?
What do you make of this (from South Dakota v. Dole)?
Or are you saying that we should consider witholding 100% of federal highway funds if states don't cooperate with drinking age laws to be Constitutional?
It is generally assumed that the legislature is the only body rightfully entrusted to determine what constitutes GW.
Some folks get exercised when they claim that a court has taken into its hands a judgment properly reserved for the legislature (e.g. Lawrence) but they are surprisingly quiet here. Conversely, the folks that were up in arms about what the TX legislature doesn't get to determine seem fine with Congress' (putatively forthcoming) determination that comprehensive health care reform is in the General Welfare.
In truth, I don't see any rhyme or reason to it at all.
If only that were modern constitutional doctrine, which frequently allows the federal government to do things which ARE specifically prohibited, so long as they claim they've got a reason for doing so.
Otherwise "no law" really would mean "no law".
Nobody claims that "no law" means "some law", it's the antecedent phrases that are the subject of interpretation.
Of course, things not covered by the antecedent phrase may quite properly be legislated upon, which seems to be where you confusion lies.
Also, under current Commerce Clause jurisprudence a comprehensive health care law seems pretty clearly constitutional to me - no doubt the health insurance industry, even intrastate, has a significant effect on interstate commerce (20% of GDP?).
Bankruptcy Clause.
Ohwilleke,
I have no personal background on this, but my understanding is that the 1945 McCarran-Ferguson Act severely restricts the ability for interstate health insurance. The part of your quote that I bolded... is just not true. You apparently believe Wickard v Filburn is a typical example of the reach of the commerce clause, rather than the "most far reaching example" in existence. As US v. Lopez made plain, the commerce clause is not a blank check anymore.
But as Gonzales v. Raich made plain, it's back to being a blank check again.
And as Gonzalez v. Oregon showed, the check isn't quite blank.
I don't see how a health care mandate can be either uniform OR proportional, unless I am missing something.
Sincerely,
Corkie the Dog
It seems to me that if the feds can levy a tax against everyone, and then allow people that do certain things to get out of the tax, you can effectively mandate people to buy health insurance.
I'm claiming that either the TX legislature is competent to determine the contours of the liberty protected by the US Constitution or it isn't.
If the commerce clause or the welfare clause permitted the feds to establish a socialized retirement fund or a socialized medical program for the elderly, or to coerce the states into doing what the feds have no authority to do, then those clauses would simply be a blank check for virtually unlimited federal action. But the Constitution was not written to give the feds a blank check. That's why Hamilton left the convention, remember? Constitutions don't hold up under shyster lawyerism, prying into a document in search of loopholes by which to undermine it and turn it upside down.
So now we are in the realm of unlimited federal power, where previously successful assaults on the Constitution are taken to legitimize future ones.
Are FSAFEDS, as they exists at the moment, constitutional?
What about 529 plans?
2. The Supreme Court has upheld numerous federal laws regulating the doctor-patient relationship under the commerce power, from application of discrimination laws to health care to upholding federal override of California's medical marijuana laws, in ways which suggest that current commerce-clause jurisprudence poses no obstacle to Congress' overriding the doctor-patient relationship.
3. Moreover, the Supreme Court has taken the view that health care is commercial in character, hence regulable as an ordinary economic activity in the same way as wheat.
This is a political non-starter -- conservatives that oppose the health care bill must position themselves as defenders of Medicare, not its executioners. Remember what happened to Rostenkowski (not that he didn't deserve it) when he stepped on the third rail of American politics.
Supposing the Supreme Court reversed course and agreed with you, do you care to wager how long it would take to pass a constitutional amendment allowing for medicare? (Recall that Seniors vote nearly twice as often as their 25-40 year old countrymen).
Surely you mean anyone with the slightest acquaintance with American history that isn't serving on the Supreme Court ...
Personally, as a regular American its quite clear that the constitution isn't worth any more than the Charmin I wipe my rear end with.
The US Federal Government now believes that NOTHING is out of bounds and that there is NOTHING that they don't think they can do.
The only things the federal government treads lightly on at this point is the first 5 amendments because most people actually have a clue what they say...so they know its harder to get away with. Outside of those small paragraphs, the rest of the document is now totally useless.
We are only about 20 years away from the states being totally redundant and having a National Police and Fire Department.
Hopefully after the next revolution we can write the constitution in 3rd grade English with not sentances longer than 4 words so even federal judges and liberals can understand it.
I strongly urge the Republican Party to make the abolition of these patently unconstitutional programs a major issue in the 2010 elections and beyond.
I strongly urge democrats to grow the balls to make use of what republicans have already given them.
I'm not a conservative and I wasn't talking political strategy.
At least the feds would not be operating in open defiance of the law.
I don't know how they justify themselves, any more than I know how the (other) pols justify themselves.
I do not quite understand your citing Gonzales v. Oregon as proof that a limited interpretation of the reach of the Commerce Clause has made a comeback. It is not bold to state that nearly all competent scholars agree by now that the Rehnquist Court's "Federalism Revolution" was dealt its death blow by Raich, which was clearly wrongly decided based on Justice Scalia's moralistic views concerning narcotics. Unless we are dealing with guns near schools (Sorry Feinstein!) or violence against women (Sorry Biden!), Congress may again regulate nearly anything under its post-New Deal Commerce Clause power.
Gonzales v. Oregon dealt with the interpretation of a federal statute, not its constitutionality under the Commerce Clause. Justice Thomas's dissent mentions that the Court's decision was inconsistent with its reasoning in Raich. Indeed it was . . . in principle. However, in legal terms, the cases are inapposite. The Court avoided any Constitutional question.
Don't overplay the numbers game. The Dem majority is built on Webbs and Testers -- folks that won't be around in a few years if Obamacare doesn't play well in MT and VA. Pelosi and Reid gambled on running blue dogs in GOP districts -- the downside is now they've got to herd them.
That's the problem -- arguing that Obamacare is unconstitutional is proving far too much.
Did you maybe consider (I know this is heretical), the notion that they may have interpreted the evidence differently from you? That is, is there room in your universe to more than one interpretation of the Constitution or are you a constitutional monist?
Constitution should mean rather than thoughtful analysis of the current state of constitutional law. There is an interesting case on the constitutionality of the Public Company Accounting Oversight Board on which the Supreme Court has granted cert that may help define the modern scope of the anti-delegation of powers arguments, but I for one do not see this blog post as offering serious scholarship.
The constitution matters only to
1) foolish laymen who still believe its myth,
2) foolish lawyers who imagine its abandonment has some non-arbitrary basis.
To the aristocracy that governs us, the constitution is merely nuisance.
I was reading Cumont this morning, about religions in ancient Rome—but really about the evolution of great powers:
"…compare the government of the empire in the time of Augustus with what it had become under Diocletian. At the beginning of the imperial régime Rome ruled the world but did not govern it. She kept the number of her functionaries down to a minimum, her provinces were mere unorganized aggregates of cities where she only exercised police power, protectorates rather than annexed countries. As long as law and order were maintained and her citizens, functionaries and merchants could transact their business….
What do we find three centuries later? A strongly centralized state in which an absolute ruler, worshiped like a god and surrounded by a large court, commanded a whole hierarchy of functionaries; cities divested of their local liberties and ruled by an omnipotent bureaucracy, the old capital herself the first to be dispossessed of her autonomy and subjected to prefects. Outside of the cities the monarch, whose private fortune was identical with the state finances, possessed immense domains managed by intendants and supporting a population of serf-colonists. "
Natelson puts aside the question of whether it is constitutional under Originalism (for which the answer is "obviously not"), and instead points to four problems under modern constitutional doctrine:
The premise is laughable. Everyone knows federalism's last gasp was extinguished by Justice Scalia in Raich v Ashcroft. The feds can do whatever they please just by invoking the magic words "Commerce Clause" and the Supreme Court will not stop them, at least not on federalism grounds.
this comment was meant to refer the previous comment on elections. republicans have said and done some awfully stupid things in the past couple of months that can be used against them in the midterm elections.
Probably, and probably.
I still do not see how calling a mandate a "tax" makes it constitutional. Federal taxes must be either uniform or proportional (except for income taxes), and a mandate is neither. Why would a mandate to buy healthcare be a constitutional exercise of federal power?
Note that nobody is calling 529's or fsa's a "tax".
Sincerely,
Corkie the Dog
(2) Congress can exempt from taxes income spent on certain expenditures.
∴ Congress can raise the net income tax rate while exempting spending on health insurance.
That's mathematically equivalent to a spending mandate -- if you don't buy insurance, you will be taxed more but if you do buy insurance, your tax bill will remain the same.
Don't count on it working against them, especially if momentum turns against the bill.
People have a natural tendency to side with the prevailing winner -- if the bill dies, the GOP will be vindicated in a huge way. Not that it would be the end of Obama &the dems, as predicted, but it will not work against the GOP in the midterms.
On a side note, this looks a little bit like a question on the CA bar that I took last month. it was divided into three mini questions about the same law it was pretty obvious part 1 was a tenth amendment question that looked a lot like Garcia v. SAMTA (could not for the life of me remember the name while I was in there though), part 2 was a commerce clasue Lopez/morrison/raich question and part 3 was pretty much identical to S.D. v Dole....I just hope they dont take off too many points cause I called the case Dole v. South Carolina. I say close enough for a closed book exam.
I think I also refered to NY v. Printz on the tenth amendment question which I am now aware doesnt exist. I thought it was the take title waste case but thats NY v US and the brady bill case is printz v US....stupid bar.
Isn't this just an exercise in line-drawing or how you define the problem? Why isn't the first case "regulating the $X.X trillion agriculture industry" and the second "regulating the house call my neighborhood doctor makes?" I assume the agriculture regulation was passed as part of some larger bill of national import.
For that matter, why not just call all of it "economic activity," and since some of that crosses state lines, all of it is able to be regulated under the Commerce Clause?
That depends on whether the potential decisionmakers (judiciary) like it.
The judiciary likes abortion rights-ergo, limits on abortion are unconstitutional.
My guess is they like Obamacare-ergo, it is constitutional.
Continue your Kabuki dance.
sk
This is a reasonable (although IMO (and ISCOTUSO) inaccurate) argument against the Second Amendment right to keep and bear arms.
But it fails when applied to the first amendment:
...unless you take the position that "respecting an establishment of religion, or prohibiting the free exercise thereof" is an antecedent phrase to the right to free speech.
"No law" under our modern jurisprudence does not really mean "no law," but rather "some law."
I prefer to stand with honorable men for the Constitution, even if that means standing alone. Even if it means dying, or killing. An honorable man can ask for nothing more in this life but a chance to give a good accoount of himself on the field of combat.
"If ye love wealth better than liberty, the tranquillity of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen." Samuel Adams, 1776.
Doesn't "no law" nowadays mean "any law, as long as a judge says it servers a compelling state interest"?
1. Who don't regularly attend an approved church.
2. Who don't speak in support of the Party in power.
3. Who don't publish things that the government demands.
4. Who petition for redress of grievances that are disfavored by government.
5. Who try to defend themselves or others from criminal attack.
6. Who try to avoid providing shelter in their homes for government troops.
7. Who don't allow warrantless searches of themselves, their homes, or their effects.
8. Who demand indictment by a grand jury.
9. Who object to deprivation of their lives, liberty, or property without due process.
10. Who object to the taking of their property without compensation.
11. Who demand a jury trial.
12. Who demand to hold an election when Congress and the President decide to suspend further elections and hold their offices for life.
No, the power to tax is only the power to raise revenue, and to do so under the restriction that it be for the general welfare, pursuant to one or more of the delegated powers, not to favor some section or faction.
Which "fantasy constitution" is that? The one that says that the Federal government has the power to pass laws that regulate the amount of wheat that you can grow on your property for your own consumption, because the Constitution gives Congress the power to "regulate Commerce... among the several States"? Man, those are some crazy fascist wing-nuts who think that growing your own vegetables in a backyard garden is within the regulatory jurisdiction of the Federal government! This must be something that Chimpy McBushitlerburtoncorp came up with to help out his Big Oil cronies.
You're not going to find the law simply by studying a copy of the constitution and other 18th century texts.
Tell that to Alan Gura.
Better yet, tell it to Thurgood Marshall
- Donations to churches are not taxable, thereby reducing the burden of the taxpayer (and increasing the relative share of the tax burden on others).
2. Who don't speak in support of the Party in power.
- TARP funding under President Obama has gone disproportionately towards those areas which supported him. Red states/districts are therefore being taxed to support those who voted for the Party.
3. Who don't publish things that the government demands.
- The White House has decided to grant to specific TV networks that push its agenda exclusive content regarding the administration.
4. Who petition for redress of grievances that are disfavored by government.
- Sovereign Immunity.
5. Who try to defend themselves or others from criminal attack.
- Gun taxes ®ulations.
6. Who try to avoid providing shelter in their homes for government troops.
- Fair enough.
7. Who don't allow warrantless searches of themselves, their homes, or their effects.
- Ever refuse to allow a police officer to search your car? Expect to wait by the side of the road for an hour (the cop being paid the whole time) while you wait for the K9 unit to show up and search the area around your car. Then another couple of hours for them to come back with a warrant because the dog 'may' have found something.
8. Who demand indictment by a grand jury.
- Legal fees aren't free.
9. Who object to deprivation of their lives, liberty, or property without due process.
- Challenge a speeding ticket some time and see if your objection is free, or if the tax man wants you to shell out a little extra for challenging the police officer.
10. Who object to the taking of their property without compensation.
- See Didden v. Village of Port Chester
11. Who demand a jury trial.
- An extra expense, as anyone who has ever requested a jury trial will tell you.
12. Who demand to hold an election when Congress and the President decide to suspend further elections and hold their offices for life.
- While this hasn't occurred, if you do choose to challenge one of the two majority parties, then you suffer a much greater expense in getting on the ballot in many jurisdictions. Not to mention that the majority parties get government funds to campaign.
Although you may have been making this point all along.
Yes. There are no precedents that have held otherwise, and dirnking is related to highway spending.
Also, the linkage between health spending and the requirements of this bill (which frankly don't involve much more state spending than current law anyway), have a tighter nexus to the program.
How is health care linked to interstate commerce?
1. Almost all private health insurance companies are owned by publicly held companies traded in national financial markets; so are many hospital chains, medical equipment and supply providers, and pharmaceuticals companies. Thus, all of these companies impact and are made possible by federal capital markets.
2. Almost all private health insurance companies do their critical actuarial work outside the state where the services are provided.
3. Private health insurance companies routinely use the postal system, telephones, the internet and the federal reserve check clearing system to do business, all of which are instrumentalities of interstate commerce which have routinely been upheld as grounds for federalizing crimes when involved.
4. Medical equipment and supplies, and pharmaceuticals are overwhelmingly purchased in interstate commerce. They are already subject to federal regulation under the FDA and federal patent laws.
5. Doctors are trained and placed in residencies an interstate educational market. MCATs are national, accreditation is national, and the students routinely cross state lines to attend medical schools. State regulation of market entry is outsourced to national firms.
6. A majority of private health insurance is purchased by firms with offices in more than one state. The vast majority of firms that purchase private health insurance are engaged in interstate commerce in some capacity. Private provision of employee benefits of all kinds is already comprehensively regulated by ERISA.
7. Almost all private health insurance plans provide some form of compensation for health care purchased in other states.
Certainly, the case that health insurance is interstate commerce is strong than the Depression era Wickard v. Fillburn, recently cited by SCOTUS as good law, and some of the more extreme cases testing federal civil rights laws.
@Jon Roland: The power to tax is restricted when it conflicts with and targets another federally guaranteed right. But, health care is not a federally guaranteed right.
Two points:
1) Even the precedents which have upheld the things like drinking age laws and highway spending have held there are limits to what conditions the government can place on funding.
2) During his confirmation hearings, CJ Roberts discussed this issue in depth and provided a fair bit of discussion as to the limits of making federal funding contingent on state cooperation. As a general rule the Federal government is not allowed to be unduly coercive towards the states in this way.
I don't think the court has moved away from saying that the government may not coerce the states through federal spending.
The antecedent phrase (note, not the precedent phrase) is the "abridging the freedom of speech".
What I was thinking of is something like the various AS and CT dissents against obscenity rulings. They claim Congress can pass a law abridging the liberty to disseminate pornography because it does not fall under the rubric of "freedom of speech".
Only a fool would ascribe their position to say that the "no law" part really means something else.
You're right, generally: after Wickard, virtually anything is commerce between the several states. But this patent argument is odd.
The Federal government has the power to create patent law because that power is specifically enumerated, not because patented devices have some sort of impact on interstate commerce. I've never heard an argument that because an activity makes use of a patented device, that activity is therefore subject to Federal control. I don't see how regulating such an activity would "promote science and progress in the useful arts." I mean, I make use of patented (or previously patented) devices in every single moment of my life. I wonder if the federal goverment could regulate when I take a leak because my toilet is patented.
By packing the court, he'll ensure that it gets upheld, whatever flaws it may have under existing separation of powers and Commerce-Clause precedents.
Have any of the liberal justices ever accepted the Lopez ruling limiting Congress's power under the commerce clause -- or even the Tenth Amendment ruling in U.S. v. New York?
Where do you see such a limitation in the 16th amendment? I see the power to tax all income whatsoever.
Maybe you can reverse incorporate some rational basis into there (somewhow) but as its written, I read a power to tax unencumbered by those (laudable!) restrictions.
They have the power to tax all income without apportionment. The 10th amendment limits the criteria that they can use to exercise that power.
1. If there is a public option, that means the government will pay claims and via the CPT code, drug codes, etc. know what they are for.
a. Do we REALLY want a permanent government record of all the women who ever had abortions?
b. Do we REALLY want a permanent government record of all the people who ever got birth control, and when?
c. Do we REALLY want to make reporting of 'reportables' to law enforcement computerized and efficient? These range from gunshot wounds (almost always reported) to allegations of domestic violence (which may just be the doctor sees a bruise on someone's back and are seldom reported), having certain diseases, etc.
d. do we REALLY want computerized medical records subject to the same review all insurance companies conduct wherein the government can see if the doctor says we are using illegal drugs, engaging in risky sexual practices, or doing other things that they think mean we're not taking care of ourselves properly?
e. Do we really want the government to hear all about whatever idiotic psychiatric or other diagnoses incompetent doctors enter into our charts - or even the valid ones - and then see what they do with the information? E. g. a recent doctor charted I drink 2 tumblersfull of scotch daily when I told her I drink 2 beers a week and maybe a scotch and soda, maybe not, in addition.
2. Do we really want the government caught between the rock and hard place of protecting our medical confidentiality and sharing the information above with local and state and federal law enforcement agencies? E. g. some state that has a parental notification law decides to go check with the parents of all the girls who got abortions whether they were notified or not?
3. What about the issue of organ donation? Everyone whines there are not enough donors. The government could pay to have everyone tissue typed and have it in their charts so they know who is a desirable donor..... then what happens?
4. Palin's death panels. Of course, that could NEEEEEEEEVER happen here! NEEEEEEVER. At least not as long as we have a wonderful CARING and COMPASSIONATE guy like Obama in charge! (try not to puke, please). Ask all the democrats if they think President Cheney would be able to behave and not establish death panels to control costs so he didn't have to raise corporate taxes on responsible companies like Halliburton and see what they say. Remind them of all the stuff Dubya did using all that federal power Democrats created over the years.
You are confusing entitlement and right. An entitlement to health care is not, and cannot be, federally guaranteed, but there is a right not to be impeded from seeking health care through one's own means, so long as that seeking does not threaten the rights of others.
So what else is new?
ReCongress has been doing that for decades. :-(Finally someone who gets it.
So what are you doing to resist that?
As opposed to random corporations and clearing houses having that info and selling it to the highest bidder?
HIPAA is either sufficient remedy or it is not.
Either way, who has the information is not relevant.
The court in Brown v Board of Education disagrees....if you replace congress with the state legislatures but same idea.
If those are really the choices, I'll deal with the entity that's not taxing me and policing my behavior upon penalty of imprisonment.
Some of those on this thread should re-examine your comments that abjectly surrender to tyranny and slavery, just because the Constitution, as originally understood, seems to momentarily lack majority support, or any support among those in power. Generations of men and suffered, fought, and died to win the constitutional rights you so easily throw away in what can only be described as dishonorable cowardice.
I prefer to stand with honorable men for the Constitution, even if that means standing alone. Even if it means dying, or killing. An honorable man can ask for nothing more in this life but a chance to give a good accoount of himself on the field of combat.
So, if, say, a form of health care reform currently under consideration is enacted -- e.g., with a "public option" -- and the Supreme Court rejects a Constitional challenge -- which it would -- you're going to start "killing"? And/or "dying" while on the field of combat?
Consider decaf.
The idea that the Supreme Court is going to strike down, say, Medicare/Medicaid, Title VII, New Deal laws because a handful of libertarians believe That's What The Constitution Really Demands represents at best an extremely naive idea of how law and politics work. And the idea that the country is heading in a direction in which that sort of thing is more plausible also strikes me as naive.
Of course not. That's for situations in which my life, liberty, or property, or that of people around me, is directly threatened. Resistance to usurpation is mainly noncooperation: refusing to assist enforcement, to testify, to convict if on a jury, to carry out court orders, or verbally accede to any of that.
First we have to stop the lying -- that things are lawful that are not -- and acting on that position.
We have not attacked the wrong country based on false and slanted premises for more than five years . . . so we have that going for us,
which is nice.
No, for a whole bunch of reasons.
A political party is not legally responsible for the actions of its member officials, who, after all is said and done, are parties unto themselves who raise their own money and just happen to fly under the flag of the main party to pick up habitual party voters. The political parties, other than the Libertarian, have no rules that allow them to vet their nominees or exclude anyone who does not adhere to their platforms. That is why both major parties have a divide between their grass-roots and their candidates, with the latter representing "investors" who expect to be able to recapture their "investments" from the actions of their candidates.
The Libertarian Party has a by-law that in every election there must always be a "none of the above" option. If the major parties had a similar rule there might be a lot less corruption.
The Legality of Your Zombie Escape Plan.
The U.S. Commission on Civil Rights has criticized the racial preferences in the health-care bill backed by Obama, saying that they are probably unconstitutional under the Supreme Court's Adarand decision, which subjected race-based affirmative action to "strict scrutiny" and barred federal racial preferences absent evidence that they are needed to remedy intentional past discrimination by the government. (In cases like Rothe Development Corp. v. Department of Defense and the Western States Paving case, the courts have sometimes struck down federal affirmative-action plans sponsored by liberal lawmakers, citing the Supreme Court's Adarand decision. ObamaCare goes even further in mandating the use of race than past affirmative action plans.)
Fact checkers say Obama is lying about health care. ObamaCare will cost far more than its predicted trillion-dollar price tag.
One of Obama's own advisers says the Obama Administration's health-care plan will harm people with insurance while raising their taxes. Obamacare will take away 5 important freedoms, notes a CNN commentary. It will also destroy many affordable health-care plans while breaking Obama's campaign promises.
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