Health Care Law Unconstitutional

[JoeTheJuggler]

Since the individual mandate is, literally, an unprecedented and wholly novel exercise of power justified by the commerce clause, I don't see how Supreme Court precedent can exist (since, logically, an unprecedented action has no precedent...) let alone be useful in guiding a lower court's opnion.

Under current interpretation of the Commerce Clause, Congress already has the authority to regulate any economic activity that has a significant effect on interstate commerce. The individual mandate is only a novel application of that authority in the same way any other new law is. Most of the judges presented with similar lawsuits agreed with me and dismissed the lawsuits.

My point is that Vinson spent a lot of time on the history and original intent even though he eventually got to the current interpretation of the Commerce Clause--the one he is bound to. So all that history and original intent stuff was irrelevant or meant to create an emotional bias against the current SCOTUS interpretation of the Commerce Clause.

 

[JoeTheJuggler]

I said it IS possible for someone to carry no health insurance and not have any health care costs passed on to someone else. I never said they wouldn't need medical care.

I know you said that, but it's not true.

For about the tenth time, the non-zero risk that they will require mandated care they cannot afford to pay for is itself a current cost to the healthcare system which must account for it.

It's now 2-2 for Federal Judges...we'll just have to see how it plays out.

As long as you ignore the 10 or 12 dismissed lawsuits. But I agree, these two mutually incompatible decisions (Hudson's and Vinson's) which disagree with the majority of district court actions will now require a higher court to settle it.

 

[JoeTheJuggler]

True. Indeed a little bit of thought would show that if the average person did not purchase insurance, and instead saved that money in a savings account, the average person would have saved more money than he would need to use to purchase all of his health care.

What this overlooks, though, is that no one can ever guarantee that he will be average. Therefore, only the phenomenally wealthy can actually guarantee the ability to pay all health care costs out of pocket.

Well said.

This is why people who lack minimum essential coverage are a present cost to the system.

And again, the law allows the economic activity being regulated to be taken in aggregate* (to determine whether or not the activity has a significant effect on interstate commerce). Vinson wrongly claims that the effect of uninsured is zero, when we know for a fact that the effect in aggregate is in the billions of dollars and is measurable and predictable and must be accounted for in advance.

*ETA: Elsewise I could argue that all of my own economic activity in my entire life lacks a significant effect on interstate commerce, and therefore I as an individual shouldn't be subject to any legislation Congress passed under that authority.

 

[Rolfe]

No, that's what he said, when you strip away the fluff.

Nobody has ever said the words you put in quote marks, except you.

Concentrate of the second part of the quote, as it's all together and falsifying one part falsifies the whole.

Rolfe.

 

[JoeTheJuggler]

and then in the same breath they'll say, "You need to buy what we tell you to buy and eat what we tell you to eat!"

I've said it before and I'll say it again: whenever you have to make up false quotations and attribute those words to your opponent, it's a pretty good sign you're arguing against a straw man.

 

[willhaven]

Never before, ever, in the history of the United States, has the commerce clause been used as justification to compel the people into the stream of commerce.

What would you consider this?

http://en.wikipedia.org/wiki/Wickard_v._Filburn

From what I see, he has 4 choices:
1) Produce in excess for personal use in violation of the law and pay a fine.
2) Buy wheat on the open market and contribute to commerce.
3) Produce up to the limit and save enough for personal use and lose some income.
4) Let his livestock die.

He doesn't have to contribute to interstate commerce, but the alternatives weren't ideal either. The individual mandate is similar. You don't have to buy health coverage, but the alternative is a fine/tax/penalty.

 

[Ziggurat]

What would you consider this?

http://en.wikipedia.org/wiki/Wickard_v._Filburn

From what I see, he has 4 choices:
1) Produce in excess for personal use in violation of the law and pay a fine.
2) Buy wheat on the open market and contribute to commerce.
3) Produce up to the limit and save enough for personal use and lose some income.
4) Let his livestock die.

You forgot
5) Butcher his livestock
6) Sell his livestock
7) feed his chickens something other than wheat

He doesn't have to contribute to interstate commerce, but the alternatives weren't ideal either.

The issue isn't about alternatives not being ideal. The government is under no obligation to make your alternatives ideal. But he wasn't being compelled to buy wheat. He had other options, whether or not you consider them good options.

And I think that case was wrongly decided anyways.

The individual mandate is similar. You don't have to buy health coverage, but the alternative is a fine/tax/penalty.

Which means you're being compelled to buy insurance. The compulsion isn't absolute, but since I can't see how you can argue that the question of constitutionality rests on the size of the penalty (or any reasonable way of determining what the constitutional limit on the size would be if it did), I don't think it matters: it's still a compulsion.

 

[JoeTheJuggler]

Outlaw obesity, mandate rice cakes and broccoli, limit sedentary television and internet viewing and make it a law to report to your local gym 3 times per week!

Congress can control your entire life...cause it's gonna cost us all and we're all in this together!

Even though you're not using fake quotes in this post, you're still arguing against a straw man here.

Is anyone arguing in favor of unlimited power of Congress to "control your entire life"?

 

[A Laughing Baby]

I don't know...a law requiring me to go to the gym 3 times a week would help with those days where it's hard to find the motivation.

 

[willhaven]

Which means you're being compelled to buy insurance. The compulsion isn't absolute, but since I can't see how you can argue that the question of constitutionality rests on the size of the penalty (or any reasonable way of determining what the constitutional limit on the size would be if it did), I don't think it matters: it's still a compulsion.

But there is precedent for the government compelling a citizen to do or not do certain things. Both in SCOTUS case law and federal law.

The mandate may be found to be unconstitutional, but history shows us that the government has always had the power to do some pretty invasive things if they felt the need.

 

[Beat]

I've noticed that some people in this thread seem to think that others are arguing for congress to have total control over our lives, and they are using examples about potential laws that force people to eat healthy and exercise.
Nobody is arguing that there should be a law about dieting and nobody is saying that the solution to the problem of dieting requires some sort of forced mandate or law. However, the government certainly could fund some sort of educational program that encourages people to eat healthy and exercise regularly. In fact, there ARE government funded programs about diet and exercise. Speaking of health care, can we simply make an educational program that provides people with quality health care? Probably not.

 

[JoeTheJuggler]

I've noticed that some people in this thread seem to think that others are arguing for congress to have total control over our lives, and they are using examples about potential laws that force people to eat healthy and exercise.
Nobody is arguing that there should be a law about dieting and nobody is saying that the solution to the problem of dieting requires some sort of forced mandate or law.

Good points.

Courts are supposed to decide the case before them, and not engage in slippery slope arguments about hypothetical cases not before them. However, it is legitimate to discuss how the disposition of the case before them might affect hypothetical cases--particularly if the disposition of the case before the court requires establishing a new interpretation (a new legal test or a new standard). Judges do this sort of thing all the time, especially during oral arguments. (That is, they often ask "What if the facts were x?" in cases where the facts are not x to help discern the legal principle.)

However, the standard needed to support the constitutionality of the individual mandate isn't new, so deciding that the individual mandate is constitutional wouldn't change any precedent and therefore wouldn't affect the decision of any hypothetical cases.

Even so, all that is required to refute arguments against a particular decision because it would lead to an undesirable decision in a hypothetical case is to distinguish the hypothetical from the present case. That is, you break the logical connection that deciding this case a certain way would in fact lead to deciding a hypothetical case a certain way.

It's easy enough to distinguish these broccoli hypotheticals from the individual mandate.

Anything a judge says in a decision that doesn't pertain to the case before it is consider obiter dictum and isn't binding.

And again, even if a particular precedent would lead to a hypothetical law that is bad policy doesn't mean necessarily it's a bad principle. In other words, showing that legislation is bad policy isn't the same thing as showing it is unconstitutional.

 

[deepatrax]

Good points.

Courts are supposed to decide the case before them, and not engage in slippery slope arguments about hypothetical cases not before them. However, it is legitimate to discuss how the disposition of the case before them might affect hypothetical cases--particularly if the disposition of the case before the court requires establishing a new interpretation (a new legal test or a new standard). Judges do this sort of thing all the time, especially during oral arguments. (That is, they often ask "What if the facts were x?" in cases where the facts are not x to help discern the legal principle.)

However, the standard needed to support the constitutionality of the individual mandate isn't new, so deciding that the individual mandate is constitutional wouldn't change any precedent and therefore wouldn't affect the decision of any hypothetical cases.

Even so, all that is required to refute arguments against a particular decision because it would lead to an undesirable decision in a hypothetical case is to distinguish the hypothetical from the present case. That is, you break the logical connection that deciding this case a certain way would in fact lead to deciding a hypothetical case a certain way.

It's easy enough to distinguish these broccoli hypotheticals from the individual mandate.

Anything a judge says in a decision that doesn't pertain to the case before it is consider obiter dictum and isn't binding.

And again, even if a particular precedent would lead to a hypothetical law that is bad policy doesn't mean necessarily it's a bad principle. In other words, showing that legislation is bad policy isn't the same thing as showing it is unconstitutional.

You keep arguing that this is a "slippery slope" and "strawman" argument that isn't relevant here...however...

Your pro-mandate argument is based on one simple premise:

- If an activity or even a non-activity can have an impact on overall health care costs for all Americans, Congress has the power to regulate and mandate any activity in order to lower costs and "provide for the general welfare"

That is your argument...you are not limiting it to just simply requiring Americans to purchase health insurance...your argument means ANY ACTIVITY.

Which of these would make for a more healthier society and thus lower health care costs?

1) The mandated purchasing of health insurance...and a penalty if you don't
2) The mandated eating of a well balanced diet in keeping with RDA guidelines and forced regular exercise...and a penalty if you don't

I submit that #1 doesn't make you any healthier, however #2 would.

And therefore, by your own argument, Congress has the power to do #2 also.

I say that although #2 would mean a more healthy society, Congress doesn't have the power to mandate it...and therefore they couldn't mandate the less healthy #1.

 

[Neally]

What this overlooks, though, is that no one can ever guarantee that he will be average. Therefore, only the phenomenally wealthy can actually guarantee the ability to pay all health care costs out of pocket.

By the same token there is no guarantee that the uninsured or under insured will NOT pay all their own health care costs. The law enforces a penalty against them by their inactivity and no actual cost to society. The only direct cost to society is if they show up in emergency and don't pay and there certainly is no guarantee that this will occur. Do you think it right to penalize everyone for the faults of some?

I've noticed that some people in this thread seem to think that others are arguing for congress to have total control over our lives, and they are using examples about potential laws that force people to eat healthy and exercise.
Nobody is arguing that there should be a law about dieting and nobody is saying that the solution to the problem of dieting requires some sort of forced mandate or law.

The point is that if you can penalize citizens for non-activity and require people to buy insurance there would be no limits. As Judge Vinson noted, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” If Congress has such power, he continued, “it is not hyperbolizing to suggest that Congress could do almost anything it wanted.” Which might include forcing people to eat or not eat certain things.

 

[Ziggurat]

But there is precedent for the government compelling a citizen to do or not do certain things.

Is there precedent for compelling commerce under the commerce clause?

Two commonly cited "precedents" are auto insurance and an early US history requirement to own a gun. In the former case, though, commerce is not compelled. You have no right to drive on public roads, so the government can make your use of public roads with an automobile contingent on having insurance. You are not compelled, because driving is optional. Furthermore, it's not the federal government doing it. States are not limited by the enumerated powers of the constitution, so what's constitutional for them may not be constitutional for the fed. And the requirement to own a firearm is covered by other enumerated powers, namely the power to organize militias, so the limitations of the commerce clause are not relevant.

I know of no example of compelled commerce under the commerce clause.

 

[Ziggurat]

Nobody is arguing that there should be a law about dieting and nobody is saying that the solution to the problem of dieting requires some sort of forced mandate or law.

That's not the point. The point is, if the health care mandate is constitutional, would those laws also be constitutional? If they are constitutional, then for many people, that's a problem because it means that Congress has too much power. Whether or not Congress wants to abuse that power in any particular manner doesn't solve the problem of Congress having too much power.

 

[deepatrax]

That's not the point. The point is, if the health care mandate is constitutional, would those laws also be constitutional? If they are constitutional, then for many people, that's a problem because it means that Congress has too much power. Whether or not Congress wants to abuse that power in any particular manner doesn't solve the problem of Congress having too much power.

Agreed.

And to the Liberals here, I would caution you on exactly how much power you think the Constitution gives Congress.

Sooner or later, Republicans will control Congress again...do you want them mandating everything they consider "provides for the general welfare"?

 

[willhaven]

Is there precedent for compelling commerce under the commerce clause?

The closest court precedent I know of is Wickard V Filburn.

There's also this:
http://blogs.forbes.com/rickungar/2...dicine-and-mandates-health-insurance-in-1798/

Two commonly cited "precedents" are auto insurance and an early US history requirement to own a gun. In the former case, though, commerce is not compelled. You have no right to drive on public roads, so the government can make your use of public roads with an automobile contingent on having insurance. You are not compelled, because driving is optional. Furthermore, it's not the federal government doing it. States are not limited by the enumerated powers of the constitution, so what's constitutional for them may not be constitutional for the fed. And the requirement to own a firearm is covered by other enumerated powers, namely the power to organize militias, so the limitations of the commerce clause are not relevant.

I know of no example of compelled commerce under the commerce clause.

As far as enumerated powers goes, how would an individual mandate not fit within the enumerated powers? They seem pretty broad.

The Congress shall have Power To lay and collect Taxes, Duties, Imports and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

 

[deepatrax]

The closest court precedent I know of is Wickard V Filburn.

There's also this:
http://blogs.forbes.com/rickungar/2...dicine-and-mandates-health-insurance-in-1798/

As far as enumerated powers goes, how would an individual mandate not fit within the enumerated powers? They seem pretty broad.

The Congress shall have Power To lay and collect Taxes, Duties, Imports and Excises...to...provide for general Welfare of the United States"

meaning...

That in order to "provide general Welfare of the United States", Congress can "lay and collect Taxes, Duties, Imports and Excises"

now where does mandating a purchase from a private company fit into this?

The clause says Congress has the power to do A (lay taxes) in order to do B (provide for the general welfare) but must do so in keeping with C (keep them uniform)

 

[gnome]

Out of curiosity, when that county in Kentucky required all citizens to purchase a firearm, was that unconstitutional?

That is your argument...you are not limiting it to just simply requiring Americans to purchase health insurance...your argument means ANY ACTIVITY.

Combined with a minimalist principle the slippery slope is not inevitable. There are precedents requiring the government (when applying certain authority) to choose the least intrusive approach.