healthcare - is it constitutional

[Magyar]

I am by most standards a liberal and I am 110% FOR tax payer style universal health care.
But I have to say that I am somewhat in agreement with the argument here from the republicans.
http://www.washingtonpost.com/wp-dy...02/AR2010010200620_2.html?sid=ST2010010200649

and while there are promises of making sure that previous conditions are not excluded and that coverage will not be denied we are talking about corporations that can simply bury a client in red tape and paperwork to accomplish the same thing.

So in short I have to agree with the argument in the link. The health care reform at present is nothing more than a GIANT boon for the the health care industry with nothing really guaranteed - as far as affordability and protection for the consumer.


Of course we can't forget the utter hypocrisy of the repugnicans bringing the lawsuit.
If they actually supported and recognized what the rest of the western world has accepted for nearly a 100 years - that providing basic health care to ALL it's citizens is just as much a responsibility and the duty of govt as providing fire, police and public education - than the lawsuit and the issue of the constitutionality of THIS plan would be moot.

 

[Upchurch]

Oh for the love of Ed, do we need another thread asking this question?

Let's cut this short: Yes, it is Constitutional.

 

[JoeTheJuggler]

and while there are promises of making sure that previous conditions are not excluded and that coverage will not be denied we are talking about corporations that can simply bury a client in red tape and paperwork to accomplish the same thing.

That's pretty much why we needed a law saying they have to cover everyone. How do you think they can get around a law that specifically bans this practice (and rescission and post claim underwriting)?

The health care reform at present is nothing more than a GIANT boon for the the health care industry with nothing really guaranteed - as far as affordability and protection for the consumer.

While I agree that the bill we're likely to get falls far short of what I would like (and I'm in favor of a single payer system), but it's factually wrong to say that it is "nothing" but the concessions to the industry. It is likely to extend real access to healthcare to millions of people. It will end the practice of rescission and denying coverage for pre-existing conditions, and it will prohibit annual and lifetime benefit caps. There are also measures (likely to be in the final bill) aimed at improving competition and lowering costs.

This is the most favorable Congress we're going to see for a long long time for healthcare reform of any kind, and with the Blue Dogs and Lieberman, we're not likely to get anything better than this.

Of course we can't forget the utter hypocrisy of the repugnicans bringing the lawsuit.
If they actually supported and recognized what the rest of the western world has accepted for nearly a 100 years - that providing basic health care to ALL it's [sic] citizens is just as much a responsibility and the duty of govt as providing fire, police and public education - than [sic] the lawsuit and the issue of the constitutionality of THIS plan would be moot.

You speak as if there is a lawsuit going for a bill that hasn't even become law yet. (There isn't.)

The article you cite gives a pretty accurate reporting of this issue. There are some really weak arguments made (mostly arm waving and saying this goes beyond the powers of Congress without being able to make the case for that assertion) that don't represent a serious challenge to the constitutionality of the reform bill.

 

[KingMerv00]

I am by most standards a liberal and I am 110% FOR tax payer style universal health care.
But I have to say that I am somewhat in agreement with the argument here from the republicans.
http://www.washingtonpost.com/wp-dy...02/AR2010010200620_2.html?sid=ST2010010200649

and while there are promises of making sure that previous conditions are not excluded and that coverage will not be denied we are talking about corporations that can simply bury a client in red tape and paperwork to accomplish the same thing.

So in short I have to agree with the argument in the link. The health care reform at present is nothing more than a GIANT boon for the the health care industry with nothing really guaranteed - as far as affordability and protection for the consumer.


Of course we can't forget the utter hypocrisy of the repugnicans bringing the lawsuit.
If they actually supported and recognized what the rest of the western world has accepted for nearly a 100 years - that providing basic health care to ALL it's citizens is just as much a responsibility and the duty of govt as providing fire, police and public education - than the lawsuit and the issue of the constitutionality of THIS plan would be moot.

Already a thread on this.

To answer the question: Considering the last 70 years of precedents? Yes.

 

[Thunder]

Social Security constitutional? check.

Medicare taxes constitutional? check.

Federal income taxes constitutional? check.

Mandated health-insurance constitutional? check.

the precedent has been set. I believe the SCOTUS would concur.

 

[JoeTheJuggler]

the precedent has been set. I believe the SCOTUS would concur.

I'll bet they don't. . . simply because they're not likely to bother hearing such a case.

 

[FlamingMoe]

Mandated health-insurance constitutional? check.

the precedent has been set. I believe the SCOTUS would concur.

Uh, when was that precedent set?

Which USSC case affirmed Congress' power to compel people to purchase a good or service?

What legal theory did they employ to justify such a ruling?

Or have they actually not ruled such a broad exercise of the police power constitutional, and you're just making stuff up?

 

[KingMerv00]

Uh, when was that precedent set?

Which USSC case affirmed Congress' power to compel people to purchase a good or service?

Laws are presumed constitutional until they are struck down by the court. If they weren't, every law coming out of Congress would have to be approved by the courts. In other words the burden of proof is on the person claiming unconstitutionality.

So what legal theory are YOU using?

 

[FlamingMoe]

Laws are presumed constitutional until they are struck down by the court. If they weren't, every law coming out of Congress would have to be approved by the courts. In other words the burden of proof is on the person claiming unconstitutionality.

In that post I claimed nothing at all. If you read it, the claim that was made was actually parky's when he said it was constitutional for Congress to mandate consumerism. Since I don't think the question has ever been put before the Court, I don't see how he can make that claim.

And your statement about the presumed constitutionality of a law is quibbling at best. That a law is presumed constitutional until proven otherwise means diddly squat when it comes to the ACTUAL constitutionality of the law. That would be like claiming a law banning newspapers is constitutional simply because it hadn't been challenged yet. Technically true, but utterly worthless as an observation.

 

[JoeTheJuggler]

In that post I claimed nothing at all. If you read it, the claim that was made was actually parky's when he said it was constitutional for Congress to mandate consumerism. Since I don't think the question has ever been put before the Court, I don't see how he can make that claim.

And your statement about the presumed constitutionality of a law is quibbling at best. That a law is presumed constitutional until proven otherwise means diddly squat when it comes to the ACTUAL constitutionality of the law. That would be like claiming a law banning newspapers is constitutional simply because it hadn't been challenged yet. Technically true, but utterly worthless as an observation.

I agree Parky's comment was poorly worded. I think he meant the precedent for finding these powers has precedent, as does a very liberal interpretation of the commerce clause.

However, in the real world, KingMerv is right: no one has to prove that the bill is constitutional. If it passes into law, it's up to those who think it's unconstitutional to make that case.

From everything I've read, they have no chance, and I doubt a case challenging its constitutionality will ever be heard by the SCOTUS. (I don't rule out that some minor technical point might do that--but not the sort of thing critics are talking about now.)

 

[FlamingMoe]

I agree Parky's comment was poorly worded. I think he meant the precedent for finding these powers has precedent, as does a very liberal interpretation of the commerce clause.

It would take an interpretation of the commerce clause that is more liberal than anything that's been done before. In the other thread on this topic I wondered aloud what other products or services Congress could require people to purchase. If they can require this, they can require pretty much anything, and that's a proposition that is not only asking for a constitutional challenge, but pleading on its knees for one.

And considering the fact that Congress has made health insurance an intrastate activity by statute, mandating the purchase of it under the auspices of an interstate commerce authority is contradictory.

There is furthermore the issue of the "Cornhusker kickback" which exempts Nebraska from paying something the rest of us will have to pay, but they'll still get the benefit of it. If'n that ain't an equal protection challenge in the works, I don't know what is.

In short, I think the dismissive attitude toward any constitutional challenge that may surface for the bill is quite premature, given the sweeping use of power Congress has used. Citing prior rulings can get you only so far: precedent cannot be depended on when an act is unprecedented.

 

[Just thinking]

... considering the fact that Congress has made health insurance an intrastate activity by statute, mandating the purchase of it under the auspices of an interstate commerce authority is contradictory.

That's the one that makes my head spin. Talk about hypocrisy ... nothing could be more of a 180 degree about-face in the same sentence as that.

 

[Just thinking]

Of course we can't forget the utter hypocrisy of the repugnicans bringing the lawsuit. If they actually supported and recognized what the rest of the western world has accepted for nearly a 100 years - that providing basic health care to ALL it's citizens is just as much a responsibility and the duty of govt as providing fire, police and public education - than the lawsuit and the issue of the constitutionality of THIS plan would be moot.

First of all, it's not Republicans, it's Conservatives ... and there are quite a few Conservative Democrats and Independents, so it's not just Republicans.

Second ... what happens in other countries does not in any way determine what is required by the US government, just as what happens in the US doesn't require other countries to provide whatever for their citizens.

 

[Bob Blaylock]

Social Security constitutional? check.

Medicare taxes constitutional? check.

Federal income taxes constitutional? check.

Mandated health-insurance constitutional? check.

the precedent has been set. I believe the SCOTUS would concur.

I disagree with all but one of these. The income tax is Constitutional, only because the Constitution was explicitly amended to allow it. Nowhere in the Constitution is the federal government given the authority to do these other things, so, per the tenth Amendment, it does so in blatant violation of the Constitution.

 

[TriskettheKid]

I disagree with all but one of these. The income tax is Constitutional, only because the Constitution was explicitly amended to allow it. Nowhere in the Constitution is the federal government given the authority to do these other things, so, per the tenth Amendment, it does so in blatant violation of the Constitution.

You're wrong.

The income tax has ALWAYS been Constitutional. In fact, it had been enacted several times in the history of the US. This is via Article 1, Section 9.

What the 16th Amendment changed is the apportionment clause of Section 9. But it did not grant Congress the power to tax incomes. They already had that power.

The rest are Constitutional.

 

[JoeTheJuggler]

It would take an interpretation of the commerce clause that is more liberal than anything that's been done before.

Your opinion on this does not line up with the consensus view among constitutional scholars. At any rate, I'd be happy to put a small wager on who the SCOTUS agrees with. (Though we'd have to put a time limit on it, because I think they won't even hear a case like this.)

In short, I think the dismissive attitude toward any constitutional challenge that may surface for the bill is quite premature, given the sweeping use of power Congress has used. Citing prior rulings can get you only so far: precedent cannot be depended on when an act is unprecedented.

Nah--it's just that we've yet to hear anyone put together a sound legal theory for a constitutional challenge. Such a legal theory would involve citing precedent (at least to show why it doesn't apply or what's wrong with certain decisions). You'd have to reverse a good 50 years or so of case law to achieve what you're after, and that's not going to happen.

 

[drkitten]

In short, I think the dismissive attitude toward any constitutional challenge that may surface for the bill is quite premature, given the sweeping use of power Congress has used. Citing prior rulings can get you only so far: precedent cannot be depended on when an act is unprecedented.

How do you expect the case to get up to the Supreme Court in the first place?

In order for the SCOTUS to hear a case, someone needs to bring a case in Federal district court and then appeal it all the way up. Who would have standing to bring the case at district level? (Just to forestall a possible wrong answer, in order to have standing, you need to be able to show some particularized injury to yourself personally. Merely being "a taxpayer" does not establish standing.)

So what will almost certainly happen is the same thing that has happened with all of the Obama birth certificate lawsuits. Nutcase files suit, district judge dismisses case with prejudice for lack of standing, nutcase appeals, appellate court upholds lack of standing and re-dismisses case, SCOTUS denies cert. Even if SCOTUS allowed cert, they would only be able to hear the standing question, and the best possible outcome for the nutcase is that the dismissal was overturned and that the district court was ordered to hear the case. At which point, again, fifty years of controlling precedent states that health care legislation is constitutional, and you need to get back up to the SCOTUS to be able to argue otherwise.

You seriously regard this as a possibility? If so, I'd like to get a piece of the action that JoeTheJuggler has proposed.....

 

[FlamingMoe]

How do you expect the case to get up to the Supreme Court in the first place?

The normal route -- district, circuit, supreme. Or, in the case of a state, possibly original jurisdiction -- I haven't familiarized myself with the particulars of a state bringing an action agaisnt the federal government.

Who would have standing to bring the case at district level? (Just to forestall a possible wrong answer, in order to have standing, you need to be able to show some particularized injury to yourself personally. Merely being "a taxpayer" does not establish standing.)

No, a taxpayer does not have standing solely by virtue of being a taxpayer. You are correct. However, I suspect all one would have to do is demonstrate they will be injured by the statue in some individualized way. Example: someone declines health insurance and is fined according to the statute. They are now injured. The fact that the statute applies to everyone does not ipso facto preclude any individual plaintiff from having standing. If Congress were to mandate everyone to shoot themself in the face, such a scheme would preclude any judicial remedy simply because no one has a grievance greater than anyone else. Which is pure silliness.

As far as states go, they would have standing based on unequal treatment between them and Nebraska. Every other state is injured by the preferential treatment given to Nebraska.

At which point, again, fifty years of controlling precedent states that health care legislation is constitutional,

Which precedent has declared Congress has the authority to compel the purchase of a good or service?

---

An additional problem I have with this legislation...

Congress is using its (alleged) power under the commerce clause to mandate the purchase of a service. It now seems Congress considers the commerce clause to empower them to regulate not engaging in commerce at all. This is far more expansive than even the stupidity of Wickard v. Filburn, which expanded Congress' power to regulate intrastate activity that was non-commercial, reasoning that if that activity didn't occur then the person may purchase products that could have been shipped in interstate commerce. At least in Wickard there was some actual activity (interstate or not, commercial or not) being regulated. Here Congress has declared that engaging in a certain activity is interstate commerce, as is not engaging in that activity. Basically, because of the simple fact of your existence, you are engaging in interstate commerce and can be regulated under the commerce clause. Such a scheme brings to my mind the scene in Episode III: Revenge of the Sith where Palpatine is gleefully screaming "UNLIMITED POOOOOOWEEEEEEEEEEEERRRRRRRR!!!!!!!"

 

[Beerina]

Keep your pants on and just wait and see people.

In any case, I'm a bit disturbed by people on a skeptic site so seemingly joyous that a government can just do something this massive without constitutional amendments.

 

[Just thinking]

Even here, Beerina ... ideology trumps --- well, everything.