Health Care Bill Constitutionality?

WildCat said:
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.
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You are misunderstanding my point of view. I'm not suggesting you need a perfectly matched precedent to figure out how the court will rule but you do need to at least attempt to ground it in common law if at all possible. People fail to realize that constitutional law is more about reading court opinions than reading the constitution. The OP fails to acknowledge that.

Like I said above the proper way to attack the constitutionality of the bill is to claim it is an overextention of the commerce clause power. Believe it or not, it is an argument with which I have some sympathy. On the other hand, I have zero sympathy with the lack of research when it comes to this stuff.
 
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parky76 said:
is it constitutional to force American tax payers to pay for the ER bills of folks who don't have health insurance??
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Do FEDERAL taxes pay hospitals ER bills? As far as I know the only federal hospitals are VA hospitals.
 
KingMerv, you mentioned a couple of times that their strongest argument is that the commerce clause has been over-extended. You don't think the Congressional authority wrt to healthcare in particular can be construed to stem from the general welfare clause?

To me that seems less of a strain, although I think the broad interpretation of the commerce clause is pretty unassailable at this point anyway.
 
BeAChooser said:
If you folks want to discuss abortion, might I suggest somewhere else?
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This was to make the point that if you think there is a legal case for something (whether it be the right to have an abortion or the proposition that something about the healthcare bill is unconstitutional), you have to cite a legal basis to make that case.

You can't just say it seems unconstitutional and shift the burden to the other side to prove that it's constitutional.
 
JoeTheJuggler said:
KingMerv, you mentioned a couple of times that their strongest argument is that the commerce clause has been over-extended. You don't think the Congressional authority wrt to healthcare in particular can be construed to stem from the general welfare clause?

To me that seems less of a strain, although I think the broad interpretation of the commerce clause is pretty unassailable at this point anyway.
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I said the commerce clause argument was one of the better arguments, I didn't say it was a GOOD argument. :D In my opinion, the commerce clause and the general welfare clause would almost certainly mean this bill survives a constitutional challenge.

I am sympathetic to the argument only because you have to wonder what the commerce clause CAN'T be used to justify. (The federal war on drugs, civil rights laws, etc.) I personally wouldn't draw the line with this bill but sometimes I worry the commerce clause will be used as a blank check some day.
 
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BeAChooser said:
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. :D
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Well, I sense that this whole "challenging the constitutionality" of health care legislation will go the same route as the birther nonsense. No matter what happens, the wingnuts will go on and on and on about how it's illegal, despite being trounced in court numerous times. That, and the goobers in charge of this lunacy will be bilking their followers for a lot of money to "pay for court costs" :rolleyes:
 
KingMerv00 said:
I said the commerce clause argument was one of the better arguments, I didn't say it was a GOOD argument. :D In my opinion, the commerce clause and the general welfare clause would almost certainly mean this bill survives a constitutional challenge.
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De accuerdo!

I am sympathetic to the argument only because you have to wonder what the commerce clause CAN'T be used to justify. (The federal war on drugs, civil rights laws, etc.) I personally wouldn't draw the line with this bill but sometimes I worry the commerce clause will be used as a blank check some day.
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Do you know whether there are any recent cases that attempted to use the commerce clause and failed? (If so, it would argue that the blank check authority isn't going to happen.)

I know the Bush administration's attempts to use security to justify a huge increase in executive branch authority has suffered some rejections.

Similarly, there's also a growing backlash against local abuse of eminent domain laws. Again, it's police powers rather than legislative authority at issue.

In a way, that's to be expected from a system where the separation of powers means that legislation doesn't happen by one person's decision. So it's less likely that something very excessive would come through Congress than that it would come from the executive branch.

Still, I would be surprised if a commerce clause justification has never been rejected (or the decision that the facts didn't support the "necessary and proper" use of it).
 
JoeTheJuggler said:
Do you know whether there are any recent cases that attempted to use the commerce clause and failed? (If so, it would argue that the blank check authority isn't going to happen.)

I know the Bush administration's attempts to use security to justify a huge increase in executive branch authority has suffered some rejections.

Similarly, there's also a growing backlash against local abuse of eminent domain laws. Again, it's police powers rather than legislative authority at issue.

In a way, that's to be expected from a system where the separation of powers means that legislation doesn't happen by one person's decision. So it's less likely that something very excessive would come through Congress than that it would come from the executive branch.

Still, I would be surprised if a commerce clause justification has never been rejected (or the decision that the facts didn't support the "necessary and proper" use of it).
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The power of the commerce clause has waxed and waned a lot. It hit its zenith a little after the New Deal Era, died out, and is now making a come back. Thus is the way of recession politics. I'm not so much afraid of a single massive reform sweeping the nation as I am of a lot of little things happening.

The best example is the federal war on drugs. Most crimes are regulated on the state level but drugs were treated differently for political reasons and the feds used the commerce clause to justify nationwide enforcement. Now we can have conflicting state and federal drug laws regarding medical pot. The whole set up is a mess. Thankfully, Obama has had the sense to back off a bit.
 
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KingMerv00 said:
Apparently it will take that long for you to tell us your legal theory for overturning the bill.
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Nah. . .it'll never happen. Not even "years from now".

On the other thread on this topic, I kept asking mHaze to give a legal theory for challenging the bill*, and he offered a factcheck.org debunking of a chain letter e-mail supposedly written by a retired attorney. While it made the commerce clause argument (poorly--obviously not something that would present a serious challenge), it also repeated a bunch of other tripe including the idea that the bill introduces healthcare rationing, would provide free healthcare coverage for illegal immigrants, would result in free abortion services and would force healthcare professionals to participate in abortions.

http://www.internationalskeptics.com/forums/showthread.php?postid=5320381#post5320381

*And mhaze says he wasn't making the claim that the bill is unconstitutional; only that there is a legitimate ongoing debate among constitutional scholars about the legitimacy of the individual mandate.
 
JoeTheJuggler said:
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.
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And those against the Nebraska exsception have cited the 14th Amendment, equal protection of the laws.
 
WildCat said:
And those against the Nebraska exsception have cited the 14th Amendment, equal protection of the laws.
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Could you be more specific? 14th amendment common law is particularly complex.

In any event I don't think this is a 14th amendment question because that usually applies to individual harms, not broad collective harms. Furthermore, I doubt an individual taxpayer could bring the case to court because "taxpayer standing" is not usually recognized by the Supreme Court. It MIGHT be a "tax and spend" question but the taxing and spending power of Congress is very broad.

What relevant cases on this subject has the Supreme Court heard lately?
 
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