Health Care Bill Constitutionality?

[KingMerv00]

Is that Constitutional?

I don't know. How about citing a ****ing case instead of your own personal sense of outrage?

I am not agreeing or disagreeing with your conclusion. I'm disagreeing with your process. (By "process" I mean your practice of making conclusions via emotions.)

 

[KingMerv00]

It must be much worse for someone like yourself who knows this stuff way...

You have no ****ing idea how annoying it is. Can you imagine arguing hurt feelings in front of the Supreme Court?

"But your honors, it's WRONG....WAAAAAAH!"

AAAARGH!

 

[BeAChooser]

I am not agreeing or disagreeing with your conclusion. I'm disagreeing with your process.

What conclusion? I just pointed out a fact and asked a question. A question a lot of people are now starting to ask. Many of them Constitutional scholars.

 

[The Central Scrutinizer]

I don't believe these health care bill items are Constitutional (and I'm sure there are many more). Care to discuss this?

I don't have a lot of time to research this, so I will let others answer the question.

If the Teabaggers and Ron Paul think it is unconstitutional, then it is certainly constitutional.

If more rational folks think it is unconstitutional, then we'll have to wait and see.

 

[The Central Scrutinizer]

What conclusion? I just pointed out a fact and asked a question. A question a lot of people are now starting to ask. Many of them Constitutional scholars.

Like Michael Badnarik, for example?

If he says it is unconstitutional, then you can bet every penny you have that it is constitutional.

 

[332nd]

What conclusion?

Here's one...

I don't believe these health care bill items are Constitutional (and I'm sure there are many more).

 

[Tumblehome]

1. You can choose not to own or drive a car. If you do choose to own and/or operate a car, there are certain responsibilities that go along with it, including the requirement that you establish the ability to pay for any damage that you might cause by doing so.
2. The federal government does not enact nor enforce any law requiring you to have insurance to operate a car, nor does it have any authority to do so under the Constitution. This is the business of the states, not the federal government.

Auto insurance is at the State level, not Federal. You aren't forced to drive a car. You aren't forced to cover yourself, only liability to other persons or property. But, other than that, I guess Obama's argument holds up.

First of all, mandatory insurance for cars is done at the state level and the requirements vary from state to state. States have the authority to pass laws on every issue except those few reserved to the federal government. And neither car insurance, or health insurance, are reserved to the federal government. Since the state has the authority to say whether you can drive or not, they can set the conditions for doing so. Furthermore, people have the choice of not driving a car. You have a choice. But democrats want to give you no choice regarding health insurance. And it is not one of the types of federal taxes permitted under Article I or the 16th Amendment ... taxes on purchases, per-capita taxes and income. There is nothing in the US constitution that gives the government to power to force someone to buy a product. Nothing. As the CBO stated back in 1994 (http://www.cnsnews.com/news/article/55910 ), "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Just to clear up the first point, for the majority of people, going without a car isn't an option. I don't spend a good chunk of my income purchasing, insuring, operating, maintaining and repairing my car for the sheer luxury of it. It's a necessity for me, as it is for most of us. The fact that insurance is forced on us isn't the point. It's just plain necessary, and since there would invariably be some people who wouldn't get it if they had the choice, it has to be mandatory.

And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance? Some people just aren't able to work at a well-paying job and afford decent health care at free market rates, not to mention legal fees when the insurance company stiffs them. All this lofty talk of Choice^TM is meaningless to them. Under the current system, they have to go without health care; they have no choice.

I'm not American so I can't speak to the constitutional ramifications of the new bill (if it is unconstitutional, don't worry, you'll have your day in court). All I can say is that if the sanctity of state jurisdiction trumps the well-being of its people, it isn't worth it. If the states can't clean up their act, then all power to the feds.

Where I live, there was no need for intervention from the Canadian government. Saskatchewan cleaned up its own act after a long sorry history of insurance companies exploiting the low income and low education of the mostly farming population. The moment I was born, I automatically had full health insurance covered by the government (I've never paid a single premium, but I pay for it in taxes, which would be the equivalent of premiums). But that isn't socialism. Socialism is when the state owns my car, my house, my business and my doctor, and determines where I live and where to go--in other words, it owns my life. Here, the government not only lets me live my own life, but thinks highly enough of it to guarantee its health as much as medicine is able to. Your new health bill doesn't even come close to that; it's almost libertarian compared to our program. Sorry, but I have to laugh when I hear panicked cries of "Soshalizm" from you guys.

Now if you'll excuse me, I have to take my fully government-insured self and drive my forcibly-insured car to that bastion of socialist oppression, the local Wal-Mart, to buy whatever I want at market-driven prices.

Oh, the socialism, it burns!

 

[Neally]

It's just plain necessary, and since there would invariably be some people who wouldn't get it if they had the choice, it has to be mandatory.

It's not a necessity, not all states require it.

And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance?

Because the federal government shouldn't be requiring everyone to purchase something that was previously not required to be purchased.

 

[ponderingturtle]

A homosexual man has the same right to marry a woman as a heterosexual man. Why he would want to is another question.

If you mean he should have the right to “marry” a man, then that's just nonsense. Marriage is, by definition, a special kind of union between a man and a woman. That's marriage it has always been, and that's what it will always be. To allow a man to “marry” another man doesn't make a marriage; it only makes a foul mockery of the real thing.

Yep just like an interracial marriage, they both had the right to marry someone of their own race, if they had stuck to it we would still have proper marriage(well except that women can own property, how can you have a real marriage and not a foul mockery of marriage if women can own property?)

The real problem with foul mockery of marriage is clearly women's rights. With out that gay marriage would make no sense after all, if it was two women who would own the property, and if it was two men, who wouldn't own the property?

 

[ponderingturtle]

And since our health is consiberably more important than our transportation, why shouldn't that apply even more so to health insurance? Some people just aren't able to work at a well-paying job and afford decent health care at free market rates, not to mention legal fees when the insurance company stiffs them. All this lofty talk of Choice^TM is meaningless to them. Under the current system, they have to go without health care; they have no choice.

Of course talk of choice in health care is pretty meaningless, people take what their employer gives them. Individuals have very little choice.

 

[ponderingturtle]

Because the federal government shouldn't be requiring everyone to purchase something that was previously not required to be purchased.

That is really your best argument? We need to outlaw comunities buying ambulance coverage then, as there was a point when they didn't have to pay for that in their taxes so they shouldn't now. Same with fire departments.

 

[Meadmaker]

Going back to the OP, there are several issues of constitutionality that have been raised.

1. The different treatment of Nebraska

While it's a weird law, I would be hard pressed to come up with a constitutional argument against it. I think, maybe, someone might be able to do it. If they did, though, I think it would have to run afoul of the "I'm a federal judge and I don't like it, so I'm going to stretch an interpretation to claim that it says what I want it to say." clause of the Constitution. In other words, a conservative judicial activist may just decide that there's something wrong with this provision.

2. Legislation passed by congress that can't be repealed by future congresses.

Actually, I suspect this is more common than you would think, because what is really happening has to do with the creation of a function within the Executive branch, and then delegating authority to that branch. There's a long, and rather complicated, history of jurisprudence on issues related to that subject, and when Congress can perform a "legislative veto" of an executive branch action. I won't pretend to understand it.
Of course, this action can be repealed, but I think what is happening here is that Congress is specifying some element about how future Congresses relate to this newly created executive branch function.

3. Individual mandate

There are lots of things Congress tells me I have to do. This is one more.

4. Federal government taking powers not granted by the Constitution.

The op said it like this:
"What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?"

This is a variation on a very popular theme the last few decades. The basic argument is that the Constitution gave specific powers to the federal government, and if the government does anything not delineated in those specific powers, the government is acting unconstitutionally.
I understand the argument. From a philosophical perspective, I have some sympathy with the argument. However, the fact is that that debate was settled in a practical sense a long time ago. The fact is that the federal government does a heck of a lot of things that a strict reading of the constitution would say that it could not do. Furthermore, rightly or wrongly, the courts have said it's ok for them to do it. So, while you might find a law professor from the early 19th century supporting you on this one, I don't think you'll find anyone except a radio talk show host on your side in the early part of the 21st century.
If the Supreme Court were to actually apply that standard and declare things unconstitutional on the grounds that the Constitution does not specifically grant that authority to the government, huge sections of the government would have to shut down. While that might be a good thing, it seems unlikely that a sitting court will declare that most government activity has been illegal for the last century. As an acadmeic exercise, these variations on this argument make sense, but when tried as an actual, practical assertion of unconstitutionality, they are just a little bit short of kooky.
Again, you might hope for a particularly activist judge to take your side, but this seems a very, very, long shot.

So, it seems to me that assertions of unconstitutionality are not the best way to defeat this bill. I think the ballot box is a better hope for those who don't like what's in it.

 

[KingMerv00]

Going back to the OP, there are several issues of constitutionality that have been raised.

1. The different treatment of Nebraska

While it's a weird law, I would be hard pressed to come up with a constitutional argument against it. I think, maybe, someone might be able to do it. If they did, though, I think it would have to run afoul of the "I'm a federal judge and I don't like it, so I'm going to stretch an interpretation to claim that it says what I want it to say." clause of the Constitution. In other words, a conservative judicial activist may just decide that there's something wrong with this provision.

2. Legislation passed by congress that can't be repealed by future congresses.

Actually, I suspect this is more common than you would think, because what is really happening has to do with the creation of a function within the Executive branch, and then delegating authority to that branch. There's a long, and rather complicated, history of jurisprudence on issues related to that subject, and when Congress can perform a "legislative veto" of an executive branch action. I won't pretend to understand it.
Of course, this action can be repealed, but I think what is happening here is that Congress is specifying some element about how future Congresses relate to this newly created executive branch function.

3. Individual mandate

There are lots of things Congress tells me I have to do. This is one more.

4. Federal government taking powers not granted by the Constitution.

The op said it like this:
"What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?"

This is a variation on a very popular theme the last few decades. The basic argument is that the Constitution gave specific powers to the federal government, and if the government does anything not delineated in those specific powers, the government is acting unconstitutionally.
I understand the argument. From a philosophical perspective, I have some sympathy with the argument. However, the fact is that that debate was settled in a practical sense a long time ago. The fact is that the federal government does a heck of a lot of things that a strict reading of the constitution would say that it could not do. Furthermore, rightly or wrongly, the courts have said it's ok for them to do it. So, while you might find a law professor from the early 19th century supporting you on this one, I don't think you'll find anyone except a radio talk show host on your side in the early part of the 21st century.
If the Supreme Court were to actually apply that standard and declare things unconstitutional on the grounds that the Constitution does not specifically grant that authority to the government, huge sections of the government would have to shut down. While that might be a good thing, it seems unlikely that a sitting court will declare that most government activity has been illegal for the last century. As an acadmeic exercise, these variations on this argument make sense, but when tried as an actual, practical assertion of unconstitutionality, they are just a little bit short of kooky.
Again, you might hope for a particularly activist judge to take your side, but this seems a very, very, long shot.

So, it seems to me that assertions of unconstitutionality are not the best way to defeat this bill. I think the ballot box is a better hope for those who don't like what's in it.

This is pretty much what I would have said...but with more cursing since this topic really gets on my nerves.

 

[casebro]

Some how the phrase "without apportionment" pops into my head.

Whether that is pro or anti-Nebraska I don't know, but I think it is in the income tax amendment?...

 

[Neally]

That is really your best argument? We need to outlaw comunities buying ambulance coverage then, as there was a point when they didn't have to pay for that in their taxes so they shouldn't now. Same with fire departments.

Is the ambulance coverage a Federal mandate? Are you saying that there is no difference between a federal tax and a federal requirement to purchase a product?

 

[Thunder]

a govt. issues i.d. card is a state requirement in many states. so what's the difference?

i want all Americans to have health insurance. why??? cause if they don't and go to the ER, guess who flips the freakin bill??? me

how about this? we will not require you to have health insurance, if you promise to NOT to go to the ER when you eventually get sick and need help.

 

[WildCat]

I don't know. How about citing a ****ing case instead of your own personal sense of outrage?

So you can't make a case until a court rules? Good thing the judge in Roe v. Wade didn't demand precedent, or abortion woulod still be illegal.

Not everything has a precedent you know. You're doing the legal equivalent of the truther argument "no steel-framed skyscraper has ever collapsed due to fire before, therefore it didn't happen".

Now here we have a case where Nebraska is given an exception to laws every other state has to abide by, and in fact it is the other states which will have to pay for Nebraska's exception.

 

[Thunder]

is it constitutional to force American tax payers to pay for the ER bills of folks who don't have health insurance??

 

[JoeTheJuggler]

This is pretty much what I would have said...but with more cursing since this topic really gets on my nerves.

Ditto. Well done, Meadmaker.

 

[JoeTheJuggler]

So you can't make a case until a court rules? Good thing the judge in Roe v. Wade didn't demand precedent, or abortion woulod still be illegal.

The Roe v. Wade decision cited case law and statutory law. (And it was a Supreme Court decision so it was not "the judge" but rather "judges".)

Yes, if you're going to make a case, you have to cite the legal bases for your case rather than just claiming the gummint can't do it.

ETA: Here's the Roe v. Wade decision. At a glance, it cites the 9th and 14th Amendments, 28 U.S.C. 1253, Samuels v. Mackall, 410 U.S. 113 & 115, Holme's now vindicated dissenting opinion in Lochner v. New York, etc. And this is just in the court's decision. I think lawyers on both sides probably cited and discussed other case law and statutory law. Roe v. Wade was not invented out of whole cloth as you seem to think.