Mandated Health insurance may not be constitutional

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Mandated Health insurance may not be constitutional

Postby i » Sun Aug 23, 2009 6:05 pm UTC

http://www.washingtonpost.com/wp-dyn/co ... 03033.html
President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

In short, no.


The article then goes on to explain why, citing cases, and laying out questionably constitutional alternatives.

I'm posting this here, because I know many here will have more to say that "that's a real good point". Some of the cases are 5-4 splits with O'Conner as a swing vote, but assuming Sotomayor will follow precedent, the cases are unlikely to be overturned.

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Re: Mandated Health insurance may not be constitutional

Postby Jahoclave » Sun Aug 23, 2009 6:13 pm UTC

See Massachusetts. If they can do it, the Feds can to. Either that or absolutely nobody has challenged them.

including the power to regulate interstate commerce


You'd be surprised what that can be harrageled into supporting.


That being said, he makes a pretty shoddy case with very poor examples that aren't exactly all that relevant. That and he only goes through two clauses. What about all the rest of them sir? You've got to eliminate everything before you can say it's unconstitutional. I'm a little upset with your five cases, two of which are almost over 50 years old. There's a reason we don't use the power to regulate interstate commerce anymore, because we have the civil rights act. Laws change and so does popular opinion and both those influence interpretation of the Constitution.

In closing, shoddily argued article is shoddy.

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Re: Mandated Health insurance may not be constitutional

Postby i » Sun Aug 23, 2009 6:40 pm UTC

Jahoclave wrote:See Massachusetts. If they can do it, the Feds can to. Either that or absolutely nobody has challenged them.

Massachusetts and the Federal government are to different institutions governed by restrictions from two different constitutions. You're making a false analogy. In fact the state is specifically given greater authority in the ninth amendment to the US constitution.

including the power to regulate interstate commerce


You'd be surprised what that can be harrageled into supporting.

I really wouldn't :(

That being said, he makes a pretty shoddy case with very poor examples that aren't exactly all that relevant. That and he only goes through two clauses. What about all the rest of them sir?


What about the rest of them? This thread is an invitation for y'all to list them out and make a good case for mandated coverage. I'm not going to let you make an argument from ignorance.

You've got to eliminate everything before you can say it's unconstitutional. I'm a little upset with your five cases, two of which are almost over 50 years old. There's a reason we don't use the power to regulate interstate commerce anymore, because we have the civil rights act. Laws change and so does popular opinion and both those influence interpretation of the Constitution.


I'm not really sure where you're going with the civil rights act, but that was supported by the fourteenth amendment--not the commerce clause-- where it said "congress shall have the power to enforce...".

You're talking about the part that prohibits discrimination in business. That law applied only to businesses--not to individual, like mandated health coverage. And it had some support from the fourteenth, and there was some cross-mojonation, and then their heads started exploding.

Honest.

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Re: Mandated Health insurance may not be constitutional

Postby BlackSails » Sun Aug 23, 2009 11:26 pm UTC

Article 1 section 7 gives congress the power to provide for the general welfare of the United States. The federalist papers clearly state that the intention of the elastic clause is to give congress the power to do anything it needs to do to carry out its duties. For example, if congress were empowered to raise an army, but not given the explicit power to institute a draft, but the draft is the only way to raise an army, congress can therefore institute a draft.

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Re: Mandated Health insurance may not be constitutional

Postby Jahoclave » Mon Aug 24, 2009 12:48 am UTC

i wrote:
Jahoclave wrote:See Massachusetts. If they can do it, the Feds can to. Either that or absolutely nobody has challenged them.

Massachusetts and the Federal government are to different institutions governed by restrictions from two different constitutions. You're making a false analogy. In fact the state is specifically given greater authority in the ninth amendment to the US constitution.

including the power to regulate interstate commerce


You'd be surprised what that can be harrageled into supporting.

I really wouldn't :(

That being said, he makes a pretty shoddy case with very poor examples that aren't exactly all that relevant. That and he only goes through two clauses. What about all the rest of them sir?


What about the rest of them? This thread is an invitation for y'all to list them out and make a good case for mandated coverage. I'm not going to let you make an argument from ignorance.

You've got to eliminate everything before you can say it's unconstitutional. I'm a little upset with your five cases, two of which are almost over 50 years old. There's a reason we don't use the power to regulate interstate commerce anymore, because we have the civil rights act. Laws change and so does popular opinion and both those influence interpretation of the Constitution.


I'm not really sure where you're going with the civil rights act, but that was supported by the fourteenth amendment--not the commerce clause-- where it said "congress shall have the power to enforce...".

You're talking about the part that prohibits discrimination in business. That law applied only to businesses--not to individual, like mandated health coverage. And it had some support from the fourteenth, and there was some cross-mojonation, and then their heads started exploding.

Honest.

I don't have to go through them. I think you missed the part where you're the one trying to argue that it's unconstitutional. It's not an argument from ignorance when I'm not the one making the argument.


The fact still stands, his argument is shoddy. And even your own counter-points establish that point.

As for the civil rights act. Before we had that act the court was using the commerce clause to enforce desegregation and to combat discrimination. I.E. it can be stretched pretty far, but also that acts of Congress can make interpretation irrelevant.

As for the states versus federal government rights, they're a joke. All it takes is one, you get absolutely no money unless you do what we say bill and suddenly every state mandates healthcare coverage. Or do you believe the states just thought 21 was a great age for drinking and that they absolutely needed no child left behind?

Quite frankly, this article seems like it's written by somebody who once got a C in political science 110.

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Re: Mandated Health insurance may not be constitutional

Postby jestingrabbit » Mon Aug 24, 2009 2:03 am UTC

GIven that its not what's being proposed, what exactly would your point be?
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Re: Mandated Health insurance may not be constitutional

Postby athelas » Mon Aug 24, 2009 2:06 am UTC

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.

This is of course insanely flexible and I would love to see this wide latitude get pruned back to a more sane scope of powers, but under current readings of the Constitution this argument against UHC is not particularly strong.

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Re: Mandated Health insurance may not be constitutional

Postby TiPerihelion » Mon Aug 24, 2009 2:27 am UTC

1. The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.

2. What jestingrabbit said.

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Re: Mandated Health insurance may not be constitutional

Postby Silas » Mon Aug 24, 2009 3:25 am UTC

BlackSails wrote:Article 1 section 7 gives congress the power to provide for the general welfare of the United States.

No, it doesn't. Article 1, section 7 is about the passage of bills: how revenue bills must originate in the House, and about the pocket and ordinary veto. Maybe you're thinking of the preamble (where general welfare is the seventh beat), but that doesn't grant any powers.

Joseph Story, in Commentaries on the Constitution of the United States, wrote:The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se. It can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution.
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Re: Mandated Health insurance may not be constitutional

Postby The Reaper » Mon Aug 24, 2009 3:36 am UTC

TiPerihelion wrote:1. The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.

2. What jestingrabbit said.

It is, but not by anyone whos sanity can be trusted. :\

This thing reminds me of the whole "THE IRS IS UNCONSTITUTIONAL" argument that friends keep bringing up to me time after time till it's pointed out to them that the constitution was amended while their states weren't part of the country, and therefor it is legal. :\

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Re: Mandated Health insurance may not be constitutional

Postby BlackSails » Mon Aug 24, 2009 6:40 am UTC

Silas wrote:
BlackSails wrote:Article 1 section 7 gives congress the power to provide for the general welfare of the United States.

No, it doesn't. Article 1, section 7 is about the passage of bills: how revenue bills must originate in the House, and about the pocket and ordinary veto. Maybe you're thinking of the preamble (where general welfare is the seventh beat), but that doesn't grant any powers.


My bad, section 8.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;


Since congress is given the mandate to provide for the general welfare, they are given all the powers necessary to carry out that mandate.

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Re: Mandated Health insurance may not be constitutional

Postby juststrange » Mon Aug 24, 2009 11:49 am UTC

TiPerihelion wrote:1. The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.

2. What jestingrabbit said.


1. I know that is true in my state. There is are advantages to that. Talk to anyone who has ever been hit by an uninsured motorist. See if they ever got thier money.

The flip side is that if the state requires it, the state must be willing to provide it to anyone. Which means no matter how terrible your driving record is in the state, they state still HAS to insure you, whist GEICO and AllState treat you like a leper.

Downside there is they don't have to insure you cheap, they just have to insure you. "Hey we will offer you insurance. Its 300 a month, but we are offering"

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Re: Mandated Health insurance may not be constitutional

Postby Belial » Mon Aug 24, 2009 12:00 pm UTC

TiPerihelion wrote:1. The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.


Not quite true. The government mandates that we all have car insurance if we're going to drive. Which, I would imagine, is part of why it's being treated as a different kettle of fish. You can avoid purchasing car insurance if you choose not to use a car. You can't avoid purchasing health insurance by choosing not to have health.

(Well, you can, but any plan that requires you to suicide to get out of it probably counts as "entirely mandatory")
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Re: Mandated Health insurance may not be constitutional

Postby Chen » Mon Aug 24, 2009 12:25 pm UTC

Did I misunderstand something with this whole health care reform? I thought one point was to provide the ABILITY for everyone to get insurance, but it wasn't going to FORCE people to get it.

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Re: Mandated Health insurance may not be constitutional

Postby Spacemilk » Mon Aug 24, 2009 3:08 pm UTC

Chen wrote:Did I misunderstand something with this whole health care reform? I thought one point was to provide the ABILITY for everyone to get insurance, but it wasn't going to FORCE people to get it.


Requiring everyone to get health insurance is one of the "pillars" of the overall reform. People argue that without one of the pillars (I think the three are: mandated individual coverage, companies are required to take all comers regardless of pre-existing conditions, and the governmental provision of a public option - did I get all of them?) the overall reform effort will fail.

As was stated in the OP:

Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work.
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Re: Mandated Health insurance may not be constitutional

Postby Vaniver » Mon Aug 24, 2009 3:21 pm UTC

BlackSails wrote:Article 1 section 7 gives congress the power to provide for the general welfare of the United States. The federalist papers clearly state that the intention of the elastic clause is to give congress the power to do anything it needs to do to carry out its duties. For example, if congress were empowered to raise an army, but not given the explicit power to institute a draft, but the draft is the only way to raise an army, congress can therefore institute a draft.
First off, that's section 8, not section 7. If you're going to argue the Constitution, try to know it a little better. Second, as the authors point out, Congress could pay for everyone's health insurance. Congress does not have the authority to punish people for not buying health insurance, and has no conditional benefit they could extend which would serve as 'punishment' (if you don't do X, you don't get to eat dinner).

Jahoclave wrote:Quite frankly, this article seems like it's written by somebody who once got a C in political science 110.
You do understand that these people sort of passed the bar exam? And are lawyers? And served in the Justice Department? And have read the Constitution and cited cases?

athelas wrote:In this case, the overall scheme would involve the regulation of "commerce" as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.
Possibly. The point I took away, at least, is that the question of Constitutionality is far from the proponents minds. I mean, it's FDR all over again- the Constitution as an obstacle, not a guiding document.

TiPerihelion wrote:1. The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.
Many state governments make having auto insurance a prerequisite for registering an automobile. They do not require all individuals to have auto insurance simply because they are individuals.
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Re: Mandated Health insurance may not be constitutional

Postby Dauric » Mon Aug 24, 2009 4:14 pm UTC

Vaniver wrote:
TiPerihelion wrote:1. The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.
Many state governments make having auto insurance a prerequisite for registering an automobile. They do not require all individuals to have auto insurance simply because they are individuals.


If my understanding of political machinations is correct it goes something like the following: Congress passes a law that allows the Federal Government to withhold Department of Transportation funds, usually for road upkeep, unless the state governments do "X". In the case of auto-insurance, the states are not "required" to have car insurance laws, but they don't get federal dollars if they don't. There was a recent change to the requirements at the federal level, but Colorado state was prepared to give up a portion of the federal funds rather than pay for the necessary bureaucracy. I believe Colorado ended up accepting the modification when all was said and done.
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Re: Mandated Health insurance may not be constitutional

Postby BlackSails » Mon Aug 24, 2009 4:34 pm UTC

Vaniver wrote:
BlackSails wrote:Article 1 section 7 gives congress the power to provide for the general welfare of the United States. The federalist papers clearly state that the intention of the elastic clause is to give congress the power to do anything it needs to do to carry out its duties. For example, if congress were empowered to raise an army, but not given the explicit power to institute a draft, but the draft is the only way to raise an army, congress can therefore institute a draft.
First off, that's section 8, not section 7. If you're going to argue the Constitution, try to know it a little better. Second, as the authors point out, Congress could pay for everyone's health insurance. Congress does not have the authority to punish people for not buying health insurance, and has no conditional benefit they could extend which would serve as 'punishment' (if you don't do X, you don't get to eat dinner).


Sure they do. They have the ability to make laws that provide for the general welfare. The elastic clause gives congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"

They can also very easily amend the tax code to effectively mandate health insurance and/or force the states to implement it. Heck, they can even just levy a special health care tax that charges money to people without health care.

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Re: Mandated Health insurance may not be constitutional

Postby Ixtellor » Mon Aug 24, 2009 4:47 pm UTC

Vaniver wrote:First off, that's section 8, not section 7. If you're going to argue the Constitution, try to know it a little better


Don't get uppity, because there is always someone smarter than you. Your arguing semantics, he mispoke on the section but his point is valid.

Vaniver wrote:Congress does not have the authority to punish people for not buying health insurance, and has no conditional benefit they could extend which would serve as 'punishment'


For individuals -- Its called the Tax code.
For States -- its called federal funding. (If you don't make the speed limit X, you don't get federal highway dollars.)

Vaniver wrote:You do understand that these people sort of passed the bar exam? And are lawyers? And served in the Justice Department? And have read the Constitution and cited cases?


Kind of like John Yoo, who argued that the President has unlimited authority during war. Just because your a man of letters and you make a claim based on a dubious liberal interpretation of the Constituion, doesn't make it so.

The SCOTUS have been very liberal when it comes to the commerce and elastic clauses and hand picking a few outliar cases doesn't build a strong case.

Vaniver wrote:Many state governments make having auto insurance a prerequisite for registering an automobile. They do not require all individuals to have auto insurance simply because they are individuals.
.


See Selective Service, if you want a better example.


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Re: Mandated Health insurance may not be constitutional

Postby dosboot » Mon Aug 24, 2009 5:10 pm UTC

How does mandating that everyone buy insurance (private or otherwise) make a difference with regards to the sustainability (specifically, "the young to subsidize the old..." sentence in the article) of public health care? 15% of the population not having health insurance vs 15% of the population having private insurance would seem to not make a difference. Am I wrong?

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Re: Mandated Health insurance may not be constitutional

Postby Dauric » Mon Aug 24, 2009 5:23 pm UTC

dosboot wrote:How does mandating that everyone buy insurance (private or otherwise) make a difference with regards to the sustainability (specifically, "the young to subsidize the old..." sentence in the article) of public health care? 15% of the population not having health insurance vs 15% of the population having private insurance would seem to not make a difference. Am I wrong?


Because it's (theoretically) working the same way as Social Security. Everyone pays in to the insurance system, those who need the healthcare (ie: the elderly and the chronically ill) are effectively subsidized by the insurance payments made by the healthy who don't draw resources out of the insurance system. The trick for being profitable in Insurance is to keep the number of people who pay in higher than those the insurer needs to pay out to. With the proposition that insurers can't deny someone membership, one half of the controls on their profitability are shot. That means they need to keep their members healthy (usually by penalizing them severely if they aren't).

Of course the Social Security isn't exactly the best model to be handling money with....
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Re: Mandated Health insurance may not be constitutional

Postby Spacemilk » Mon Aug 24, 2009 5:44 pm UTC

BlackSails wrote:Sure they do. They have the ability to make laws that provide for the general welfare. The elastic clause gives congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"

They can also very easily amend the tax code to effectively mandate health insurance and/or force the states to implement it. Heck, they can even just levy a special health care tax that charges money to people without health care.

Yeah, they could. And that would be a Congressional "power-grab" which might be worthwhile if your short-term goal is implementing health-care, but in the long run could upset the balance of power between our three branches and between the federal and state governments. Like you said, Congress can literally use this brute-force method to implement anything on a federal level - but it's this misuse and imbalance of power that the founding fathers tried to prevent by setting up a government that DIDN'T have an oligarchical (sp?) setup. I mean I'm all for a modern interpretation of the Constitution, but I think the balance of power is a timeless, priceless idea the founding fathers had and I would hate to see that idea go out with the dishwater.

Also - and this is a minor quibble that I don't want to deeply debate right now - I think Congress passing laws for the "general welfare" is a weighty decision and you need to prove beyond a shadow of a doubt that the public, as a whole, does gain a net benefit from the law. I'd like to think that giving everyone health care is a good thing overall; I just don't think you can prove it. But that's my opinion. I don't want to debate it right now because valuing the health care system is a tough thing to do and it'll end up being a very distracting tangent to the current discussion - plus we have other threads devoted to this.

Ixtellor wrote:See Selective Service, if you want a better example.

Sorry to nitpick, but this isn't a better example. Women don't have to register for Selective Service and can't be drafted. And while all men are required to register at age 18, actually being drafted is something you can be exempted from. It's still not a holistic requirement. I don't know if such a thing exists in an analogous form to the proposed universal health care.

dosboot wrote:How does mandating that everyone buy insurance (private or otherwise) make a difference with regards to the sustainability (specifically, "the young to subsidize the old..." sentence in the article) of public health care? 15% of the population not having health insurance vs 15% of the population having private insurance would seem to not make a difference. Am I wrong?

To put some numbers on Dauric's excellent example, it's like this: I pay $500 a year for insurance. I'm 23 years old, I almost never get sick and if I do get sick, it's likely only a head cold. So I use $0 out of the $500 I pay to the health insurance company. My 72-year-old grandmother, however, also pays $500 but has to have medical procedures that total $1000 in costs in one year. Those procedures are fully covered by the insurance company. In order for the insurance company to operate without losses, they have to use my $500 to pay for (i.e., subsidize) my grandmother's procedures.

It's also why people, especially older people, are so concerned by the so-called "death panels". They're worried because as the baby-boomer generation starts to age, there will be fewer young people paying in to the system than older people. (which is exactly the concern with running out of Social Security money right now) They're worried that they will either be entirely denied coverage or they will be euthanised, in the interest of saving money.
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Re: Mandated Health insurance may not be constitutional

Postby chaosspawn » Mon Aug 24, 2009 6:30 pm UTC

Spacemilk wrote:
Ixtellor wrote:See Selective Service, if you want a better example.

Sorry to nitpick, but this isn't a better example. Women don't have to register for Selective Service and can't be drafted. And while all men are required to register at age 18, actually being drafted is something you can be exempted from. It's still not a holistic requirement. I don't know if such a thing exists in an analogous form to the proposed universal health care.
I'd argue that schools are likely analogous to what the healthcare proposal is. Children are required to attend school up to a certain age (16? i think). Thus the government offers a public option, however private and homoeschooling choices are available to anyone who would rather participate in those.

Spacemilk wrote:
dosboot wrote:How does mandating that everyone buy insurance (private or otherwise) make a difference with regards to the sustainability (specifically, "the young to subsidize the old..." sentence in the article) of public health care? 15% of the population not having health insurance vs 15% of the population having private insurance would seem to not make a difference. Am I wrong?
...In order for the insurance company to operate without losses, they have to use my $500 to pay for (i.e., subsidize) my grandmother's procedures.

It's also why people, especially older people, are so concerned by the so-called "death panels". They're worried because as the baby-boomer generation starts to age, there will be fewer young people paying in to the system than older people. (which is exactly the concern with running out of Social Security money right now) They're worried that they will either be entirely denied coverage or they will be euthanised, in the interest of saving money.
I think the concern there is that all it was doing was shuffling around the money like you described. So in the end nothing's really achieved, really Medicare is already theoretically doing this, an additional health care wouldn't seem to system solve any of this (except increase the amount of money transferred over). Cover the uninsured, sure, solve the aging baby boom problem, not really.
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Re: Mandated Health insurance may not be constitutional

Postby i » Mon Aug 24, 2009 6:49 pm UTC

Jahoclave wrote:I don't have to go through them.

Alright. Goodbye.

As for the civil rights act. Before we had that act the court was using the commerce clause to enforce desegregation and to combat discrimination. I.E. it can be stretched pretty far, but also that acts of Congress can make interpretation irrelevant.

Okay, I admit you did cite one thing. The two issues you're calling attention to (from what I remember) were one executive order forbidding the federal government to contract with segregated businesses and one law desegregating transportation that physically moved between states. Those aren't even stretches.

BlackSails wrote:Article 1 section 7 gives congress the power to provide for the general welfare of the United States. The federalist papers clearly state that the intention of the elastic clause is to give congress the power to do anything it needs to do to carry out its duties. For example, if congress were empowered to raise an army, but not given the explicit power to institute a draft, but the draft is the only way to raise an army, congress can therefore institute a draft.


Except that the clauses you're citing aren't interpreted that way. "The general welfare" is embedded in a tax and spend clause. It means that Congress can spend money to provide for the general welfare, but it doesn't mean they can force citizens to do stuff for their own good (besides, you know, paying taxes).

It's not a mandate. It is a restriction on how money can be spent. Here is a Federalist paper (the last four paragraphs are pertinent), and here is a Wikipedia article (fully cited). It may be interpreted extremely expansively, but it is still a spending clause.

Referring to your comments about the draft: I know it seems strange that a draft is constitutional but mandated coverage is not (even though the former is more intrusive than that latter). But consider that large portions of the Patriot Act have been struck down as unconstitutional as well, and that act was also less intrusive than a draft.

I will fully admit (and the article admits also) that a tax-supported, government-provided coverage is constitutional. But mandated coverage isn't the same thing; they are two completely different schemes.

athelas wrote:As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme.


That sounds like a came from a court opinion. What case is it?

If I had to guess, I'd say it was the one on medical marijuana. Is it? I don't want to look it up unless it is.

I think that's a good line of attack though.

BlackSails wrote:They can also very easily amend the tax code to effectively mandate health insurance and/or force the states to implement it. Heck, they can even just levy a special health care tax that charges money to people without health care.


The courts aren't too keen on letting the tax code be used as a mallet like that. Just imagine a flag-burning tax.

I do have a case though, ripped from Wikipedia: http://en.wikipedia.org/wiki/United_States_v._Butler

Dauric wrote:Because it's (theoretically) working the same way as Social Security. Everyone pays in to the insurance system, those who need the healthcare (ie: the elderly and the chronically ill) are effectively subsidized by the insurance payments made by the healthy who don't draw resources out of the insurance system.


Yeah, but that is a government run program and all the taxes for it are "uniform".

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Re: Mandated Health insurance may not be constitutional

Postby Dauric » Mon Aug 24, 2009 6:56 pm UTC

Well... there's two problems that Health Reform is -trying- to solve.

First is that American healthcare costs are skyrocketing far, far in excess of inflation, and far in excess of other industrialized nations around the world. There's an argument that American healthcare is costly because "innovation" costs more, but apparently none of that innovation has led to efficiency that would reduce costs like it does in most any other field that benefits from technology. Most of these expenses are (through mostly reliable estimates) a fault of Malpractice insurance, and bureaucratic overhead in hospitals and insurance companies alike.

The other problem is that of the "Uninsured" (Raises hand). I don't have employer insurance and given the high costs of medical care if I was to be involved in an accident, even one that is relatively minor, my expenses would bankrupt me and the remainder fall to the taxpayer. On the other hand being without insurance means that I can actually afford to pay cash when I go for regular visits, since I'm not blowing that money on an insurance company's lavish (as far as I'm concerned) overhead. Also many actual doctors will charge lesser rates to non-insurance patients because there's that much less paperwork, and no wrangling over the "Necessity" of a procedure (except with an obstinate patient... -raises hand-).

Because it's (theoretically) working the same way as Social Security. Everyone pays in to the insurance system, those who need the healthcare (ie: the elderly and the chronically ill) are effectively subsidized by the insurance payments made by the healthy who don't draw resources out of the insurance system.


Yeah, but that is a government run program and all the taxes for it are "uniform".


Even private insurance works the same way. Everyone pays in, those who need it are paid out. The difference is that private insurance has more options to it as far as how people pay in, and take liberties with the ways they're supposed to pay out, as well as private insurance companies being driven by a profit motive. At the core of it, whether it's "Social Security Insurance" (the proper title), "Medicare Insurance", "Medicaid Insurance", or any form of private Insurance, it's all the same basic model of wealth redistribution.
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Re: Mandated Health insurance may not be constitutional

Postby Jahoclave » Tue Aug 25, 2009 1:14 am UTC

i wrote:
Jahoclave wrote:I don't have to go through them.

Alright. Goodbye.

I don't think you understand this burden of proof thing very well.

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Re: Mandated Health insurance may not be constitutional

Postby The Reaper » Tue Aug 25, 2009 1:19 am UTC

Jahoclave wrote:
i wrote:
Jahoclave wrote:I don't have to go through them.

Alright. Goodbye.

I don't think you understand this burden of proof thing very well.

http://en.wikipedia.org/wiki/Burden_of_proof
For the confused people.

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Re: Mandated Health insurance may not be constitutional

Postby Silas » Tue Aug 25, 2009 7:33 am UTC

BlackSails wrote:My bad, section 8.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;


Since congress is given the mandate to provide for the general welfare, they are given all the powers necessary to carry out that mandate.

But... but... that's not what it says at all. The framers played fast and loose with their punctuation at times, but the obvious reading of the tax powers clause is to permit Congress to use tax revenue for essentially any purpose, not to empower the legislature to pay the debts and provide for the general welfare. The clause "to pay the debts and [all that jazz]" is subordinate (rather than coordinate) to the clause "to collect [taxes]." Otherwise, why would there be a separate clause authorizing Congress to raise and support an Army, if it already had the power to provide for the common defense?

It's like you're quote-sniping the constitution.
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Re: Mandated Health insurance may not be constitutional

Postby Dauric » Tue Aug 25, 2009 2:50 pm UTC

Silas wrote:
It's like you're quote-sniping the constitution.


Our government makes a living quote-sniping the constitution.
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Re: Mandated Health insurance may not be constitutional

Postby dosboot » Tue Aug 25, 2009 5:57 pm UTC

I'm going to quote myself because y'all seem to be addressing a completely different question then I asked:

dosboot wrote:How does mandating that everyone buy insurance (private or otherwise) make a difference with regards to the sustainability (specifically, "the young to subsidize the old..." sentence in the article) of public health care? 15% of the population not having health insurance vs 15% of the population having private insurance would seem to not make a difference. Am I wrong?


In other words, if there was a sustainability problem with the government plan, then an individual buying a non-government plan won't change that; it would be just as unsustainable if that individual chose not to have any insurance. Isn't the exact opposite implied by the original article, quoted in the first post of this thread?

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Re: Mandated Health insurance may not be constitutional

Postby Dauric » Tue Aug 25, 2009 6:13 pm UTC

dosboot wrote:I'm going to quote myself because y'all seem to be addressing a completely different question then I asked:

dosboot wrote:How does mandating that everyone buy insurance (private or otherwise) make a difference with regards to the sustainability (specifically, "the young to subsidize the old..." sentence in the article) of public health care? 15% of the population not having health insurance vs 15% of the population having private insurance would seem to not make a difference. Am I wrong?


In other words, if there was a sustainability problem with the government plan, then an individual buying a non-government plan won't change that; it would be just as unsustainable if that individual chose not to have any insurance. Isn't the exact opposite implied by the original article, quoted in the first post of this thread?


That applies only if those who choose either group are uniform in all other respects, namely pay in, and pay out.

However those who will choose no insurance and those who will choose private insurance are different groups. By making insurance mandatory, you're increasing the number of pay-ins who are healthy and otherwise would not have insurance at all, where the elderly and chronically sick numbers won't change. This dynamic will apply across the board to government and private providers, with the greater benefit going to whoever has the lowest "Low Rate" policy. That's why the insurers hate the "Private Option". Government doesn't have "profit" overhead, and can actually perform at a loss for decades where a private insurance company would go bankrupt doing the same.
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Re: Mandated Health insurance may not be constitutional

Postby i » Wed Aug 26, 2009 8:47 pm UTC

The Reaper wrote:
Jahoclave wrote:
i wrote:
Jahoclave wrote:I don't have to go through them.

Alright. Goodbye.

I don't think you understand this burden of proof thing very well.

http://en.wikipedia.org/wiki/Burden_of_proof
For the confused people.


The article presented evidence. Jahoclave's response was that those precedents "are too old." Then he ignored the cases that weren't "too old", and made a claim of shoddy journalism claiming that the author ignored court cases which Jaho refuses to name.

Congratulations on your ally's "well-supported" response.

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Re: Mandated Health insurance may not be constitutional

Postby The Reaper » Thu Aug 27, 2009 12:32 am UTC

i wrote:The article presented evidence. Jahoclave's response was that those precedents "are too old." Then he ignored the cases that weren't "too old", and made a claim of shoddy journalism claiming that the author ignored court cases which Jaho refuses to name.

Congratulations on your ally's "well-supported" response.

If the evidence is shoddy, and part of the evidence is out of date, the least you could so, as the person trying to push the point that it's unconsitutional, is find a bit more evidence, to make the arguement more firm.

Tho Jahoclave did take the easy way out without pointing out why the evidence is no longer worth a shit. He should probably do that.

I'm not sure where this "ally" bit came into play at.

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Re: Mandated Health insurance may not be constitutional

Postby Vaniver » Thu Aug 27, 2009 5:57 pm UTC

The Reaper wrote:If the evidence is shoddy, and part of the evidence is out of date, the least you could so, as the person trying to push the point that it's unconsitutional, is find a bit more evidence, to make the arguement more firm.
But, the claim that some evidence is out of date and other evidence is shoddy requires its own evidence. If we are not willing to trust Jahoclave's legal opinion, then it seems like he should produce some evidence to support his opinion.
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Re: Mandated Health insurance may not be constitutional

Postby The Reaper » Thu Aug 27, 2009 8:27 pm UTC

Vaniver wrote:
The Reaper wrote:If the evidence is shoddy, and part of the evidence is out of date, the least you could so, as the person trying to push the point that it's unconsitutional, is find a bit more evidence, to make the arguement more firm.
But, the claim that some evidence is out of date and other evidence is shoddy requires its own evidence. If we are not willing to trust Jahoclave's legal opinion, then it seems like he should produce some evidence to support his opinion.

A point made in my second line. :3

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Re: Mandated Health insurance may not be constitutional

Postby i » Fri Aug 28, 2009 4:37 am UTC

The Reaper wrote:I'm not sure where this "ally" bit came into play at.


Because I'm easily annoyed, and I will jump to the completely unsupported assumption that you both are of the same mind.


The constitution doesn't have an expiration date, and neither do court opinions. Why do you all think a 55 year-old SCOTUS decision on racial segregation is still being taught to law students?

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Re: Mandated Health insurance may not be constitutional

Postby Spacemilk » Fri Aug 28, 2009 2:41 pm UTC

i wrote:The constitution doesn't have an expiration date, and neither do court opinions. Why do you all think a 55 year-old SCOTUS decision on racial segregation is still being taught to law students?


True, but a little disingenuous in this situation. Court rulings don't have an expiration date, but sometimes the precedents must be updated to allow for changes in the world. There have been a couple of these: just off the top of my head, I can't remember the names of them, but for example, land rights. It used to be that a land owner owned his chunk of land from the center of the earth to the heavens. Then airplanes appeared and people realized it would be ridiculous for people to keep air rights AND land rights or planes would have to veer around anyone who didn't allow them to trespass. So they updated the ruling by giving another ruling.

That being said, I don't think any of the decisions listed in the article no longer apply because of some advancement or change or anything. I would rather argue that they only tangentially apply and the author of the article is sorta grabbing for straws.
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Re: Mandated Health insurance may not be constitutional

Postby The Reaper » Fri Aug 28, 2009 4:29 pm UTC

Spacemilk wrote:There have been a couple of these: just off the top of my head, I can't remember the names of them, but for example, land rights. It used to be that a land owner owned his chunk of land from the center of the earth to the heavens. Then airplanes appeared and people realized it would be ridiculous for people to keep air rights AND land rights or planes would have to veer around anyone who didn't allow them to trespass. So they updated the ruling by giving another ruling.

Theres also a difference btwn land and mineral rights. You don't even own the land to the center of the earth. You just own the 2D land spot that people sold you for a trumped up amount of cash. >:\ egh. Apparently its a huge hassle to dig up mineral rights as well.

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Re: Mandated Health insurance may not be constitutional

Postby i » Mon Aug 31, 2009 2:32 am UTC

I just realized I screwed up the OP. Sotomayor is replacing Souter--not O'Conner. I got confused, because both replacements had a lot of talk about how a woman should be appointed and all that.

Spacemilk wrote:
i wrote:The constitution doesn't have an expiration date, and neither do court opinions. Why do you all think a 55 year-old SCOTUS decision on racial segregation is still being taught to law students?


True, but a little disingenuous in this situation. Court rulings don't have an expiration date, but sometimes the precedents must be updated to allow for changes in the world. There have been a couple of these: just off the top of my head, I can't remember the names of them, but for example, land rights. It used to be that a land owner owned his chunk of land from the center of the earth to the heavens. Then airplanes appeared and people realized it would be ridiculous for people to keep air rights AND land rights or planes would have to veer around anyone who didn't allow them to trespass. So they updated the ruling by giving another ruling.

That being said, I don't think any of the decisions listed in the article no longer apply because of some advancement or change or anything. I would rather argue that they only tangentially apply and the author of the article is sorta grabbing for straws.


I do remember that case. Although it did take me a bit of time to look it up. And here it is: http://caselaw.lp.findlaw.com/scripts/g ... 8&page=256
Two things.

1. You've grossly oversimplified what happened with that case. This is the jist of what happened: In the 1920s Congress expropriated everything above a certain height (for air travel). Then some guy sued, saying that it violated the Takings Clause. SCOTUS basically said that, since the land owner could not make use the space at that height, the property had no value, and Congress didn't owe jack.

The decision was based on utility to the property owner---not because airplanes were invented and times-they-were-a-changing.

2. This case doesn't mean anything for the "mandated coverage" issue anyway. SCOTUS rulings occasionally get overturned--so what? There is no indication that controlling cases in issue will be overturned.

In fact, consider the similarities between Roosevelt's New Deal policies and Obama's current healthcare proposal. The situation in the thirties was even more pressing than today's healthcare problem, but that didn't make SCOTUS start loving all over the New Deal and overturning previous precedents.

Edit: Oh, and in that case I'm citing, the court ruled against the United States because they were flying their planes too close to the ground. Interesting.

The Reaper wrote:Theres also a difference btwn land and mineral rights. You don't even own the land to the center of the earth. You just own the 2D land spot that people sold you for a trumped up amount of cash. >:\ egh. Apparently its a huge hassle to dig up mineral rights as well.


No, that's something else. You know how you can divide your property into two parcels and sell them each off separately? Apparently, you can do that with mining rights and surface rights as well.

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Re: Mandated Health insurance may not be constitutional

Postby Philwelch » Mon Aug 31, 2009 6:15 am UTC

Jahoclave wrote:See Massachusetts. If they can do it, the Feds can to.


Uh, no. That goes against the entire idea of federalism. The states get to do things the feds can't.

TiPerihelion wrote:The government mandates that we all have car insurance, yet the constitutionality of that is never called into question.


Most state governments do. IIRC, Tennessee does not.
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