Right Wing Judge Says ObamaCares is Constitutional

[Unabogie]

And *sigh*, it has been clearly shown my personal opinion that this is not a "tax". It's a penalty and a mandate.

BTW the SC has put this on the docket. We should have the final word by about June of next year.

Fixed for clarity. If they would have added a tax that would be refunded to people who bought health insurance, and those who couldn't afford health insurance got subsidies but still had to buy it to qualify for the tax credit, how would this differ, since it's obviously constitutional to pass taxes and offer credits?

I'll let noted liberal Newt Gingrich explain.

In his post-congressional life, Gingrich has been a vocal champion for mandated insurance coverage — the very provision of President Obama’s health care legislation that the Republican Party now decries as fundamentally unconstitutional.


This mandate was hardly some little-discussed aspect of Gingrich’s plan for health care reform. In the mid-2000s, he partnered with then-Sen. Hillary Clinton (D-N.Y.) to promote a centrist solution to fixing the nation’s health care system. A July 22, 2005, Hotline article on one of the duo’s events described the former speaker as endorsing not just state-based mandates (the linchpin of Romney’s Massachusetts law) but “some federal mandates” as well. A New York Sun writeup of what appears to be the same event noted that “both politicians appeared to endorse proposals to require all individuals to have some form of health coverage.”
(…)


In a June 2007 op-ed in the Des Moines Register, Gingrich wrote, “Personal responsibility extends to the purchase of health insurance. Citizens should not be able to cheat their neighbors by not buying insurance, particularly when they can afford it, and expect others to pay for their care when they need it.” An “individual mandate,” he added, should be applied “when the larger health-care system has been fundamentally changed.”

ETA: Forgot this link. Lots more Newty goodness from back when he was for the individual mandate. Of course that was YEARS before ObamaCaresAboutYou. Like TWO FULL YEARS!

http://www.outsidethebeltway.com/guess-who-else-liked-the-individual-mandate-newt-gingrich/

 

[Neally]

Fixed for clarity.

No, not my personal opinion, the legislature wrote it that way, Obama described it that way, and the law itself is set up that way. It's a penalty not a tax.

If they would have added a tax that would be refunded to people who bought health insurance, and those who couldn't afford health insurance got subsidies but still had to buy it to qualify for the tax credit, how would this differ, since it's obviously constitutional to pass taxes and offer credits?

Yes, structuring it as a tax would have gone a long way to eliminate the criticism, but that's not the way it's structured now, thus have the SC having to decide.

I'll let noted liberal Newt Gingrich explain.

Both he and Romney had to change their tune to try to capture the vote.

 

[willhaven]

There's no severability clause in the law, and the mandate was billed as essential to the law's effectiveness. If the madate is unconstitutional it should overturn the entire legislation.

From what I've read, it doesn't really matter. It's basically written in such a way as to be easily severable. It's mentioned in the contents section of the legislation itself and it's defined in a few short sentences.

If the mandate is found to be unconstitutional, I really doubt that it would bring down the rest of the law with it.

 

[JoeTheJuggler]

From what I've read, it doesn't really matter. It's basically written in such a way as to be easily severable.

I disagree there.

I think the law is definitely not severable. There are several big elements of it that are all interdependent. For example, you can't get insurance reforms (no denial for pre-existing conditions, ending rescission and post claim underwriting, no unreasonable annual or life-time benefit caps, etc.) without getting the individual mandate.

I think it's easy to argue that the legislature never imagined having these insurance reforms in place but NOT having the individual mandate. That would be a certain recipe for ending the health insurance industry. Everyone currently paying premiums should just cancel their policies, pay their own routine bills, and if they end up with a big expense, just get insurance after the fact.

Either that, or you'd have to assume the legislature meant to repeal the law that requires healthcare providers to provide basic services regardless of the patient's ability to pay. And I see no evidence at all that that's what they had in mind.

(And I note that one of the lower court decisions declaring the individual mandate to be unconstitutional relied on the finding that it is severable.)

 

[JoeTheJuggler]

No, not my personal opinion, the legislature wrote it that way, Obama described it that way, and the law itself is set up that way. It's a penalty not a tax.

From what I've read, the case law doesn't support the distinction. It's a tax penalty. Case law says that as long as part of its intention is to raise revenue (and it will, according to the CBO), the fact that it's also meant as an enforcement mechanism doesn't make it not a tax.

But again, this depends on Congress having authority to regulate the activity under the Commerce Clause authority.

But I find it telling that people who were even more strongly opposed to a straight single payer system are now arguing that it would be Constitutional if it were done that way. They even opposed the "public option" compromise.

 

[JoeTheJuggler]

And there's no guarantee the SCOTUS will actually rule on the merits. They could agree with the majority of federal appeals courts who have dismissed the suit for lack of standing.

Speaking of the standing, argument: part of the plaintiffs' case is that you can indeed meaningfully opt out of the health insurance market, yet all of the actual plaintiffs have a history of having coverage and not having coverage (exactly the activity that the government says triggers Congress' Commerce Clause authority).

 

[willhaven]

I disagree there.

I think the law is definitely not severable.

From a mechanical perspective it is. I don't believe it is cross referenced by other parts of the legislation at all. From a practical perspective, something would have to replace it as a cost controlling measure.

It's not so deeply intertwined with the rest of the language that it all falls apart like so many seem to believe.

The ACA is more like a neighborhood of card houses and not a single house of cards. To use a dumb analogy...

 

[JoeTheJuggler]

From a mechanical perspective it is. I don't believe it is cross referenced by other parts of the legislation at all.

What does that mean?

The question of severability depends on whether or not the legislature intended for parts of the law to stand if other parts were struck down. Again, there's simply no way that the individual mandate is severable from the health insurance reforms.

We know the legislative history of this thing. And we know for sure they weren't considering those big insurance reforms without the individual mandate.

Debate raged on for a full year, much of it was televised, and we knew everyone's position on pretty much every point. If I haven't cited it yet on this thread, the House Finance Committtee's investigation into the practice of rescission and post claim underwriting has sworn statements from health insurance industry leaders who say they have to continue these horrible practices unless and until Congress passes comprehensive reform that includes an individual mandate.

http://democrats.energycommerce.hou...mpanies-state-perspectives-and-legislative-so

Not being able to exclude people for pre-existing conditions AND not having an individual mandate, would be like letting gamblers place their bets on the roulette wheel after the ball has settled.

ETA: I think the question of severability of the individual mandate will be one of the easiest questions for the court to agree on. No matter what your opinion on the constitutionality of the individual mandate, it's plain that it's not severable.

 

[Grizzly Adams]

From what I've read, the case law doesn't support the distinction. It's a tax penalty. Case law says that as long as part of its intention is to raise revenue (and it will, according to the CBO), the fact that it's also meant as an enforcement mechanism doesn't make it not a tax.

If it is a tax, the case for unconstitutionality gets even stronger. It's not an income tax so it has to be either an excise or direct tax. Excises must be uniform throughout the states, and this "tax" is not. Direct taxes must be apportioned, and this "tax" is not.

If it's a tax, it's even more unconstitutional.

 

[JoeTheJuggler]

If it is a tax, the case for unconstitutionality gets even stronger. It's not an income tax

It is an income tax penalty. Where did you get the idea that it's not?

Really tax penalties are nothing new. The judiciary has already found them to be constitutional.

The biggest question is whether or not participation in the healthcare market is economic activity that has a significant effect on interstate commerce. The anti-argument is that it's attempting to regulate "inactivity" but that argument won't fly. The courts have said the activity can be measured in aggregate, and in aggregate we can calculate the cost to the healthcare system of those who lack minimum coverage. (If you can spin this participation as "inactivity" I would argue that you could also spin the behavior in Wickard v. Filburn as not buying the wheat your family consumes on the open market. That type of "inactivity", the SCOTUS has held, is within the CC authority.) I realize conservatives dislike the long history of the broader CC authority, but it's established law, and the probability the court will make a radical landmark departure from this long established jurisprudence.

But it won't hinge on whether or not the tax penalty is constitutional.

 

[Grizzly Adams]

It is an income tax penalty. Where did you get the idea that it's not?

Because it's not related to income. At all. It's only relation to the income tax is the fact that it's assessed at the same time you file your income taxes.

The sixteenth amendment alters the original taxing power in one way only: the government may tax income without regard to apportionment. The mandate penalty is not a tax on income; it is a tax on not doing something, and that something is wholly divorced from income.

The anti-argument is that it's attempting to regulate "inactivity" but that argument won't fly. The courts have said the activity can be measured in aggregate,

I should be surprised you tried to dismiss the inactivity argument by talking about how the court has ruled on activity, but I'm not.

(If you can spin this participation as "inactivity" I would argue that you could also spin the behavior in Wickard v. Filburn as not buying the wheat your family consumes on the open market. That type of "inactivity", the SCOTUS has held, is within the CC authority.)

No, you can't spin it that way. Wickard was growing his own wheat. This is an activity. A congruous situation would have been the government mandating that Wickard buy wheat from someone else. Regardless of how 150% retarded I think Wickard is, your characterization of it in relation to this case is even more so.

I realize conservatives dislike the long history of the broader CC authority, but it's established law, and the probability the court will make a radical landmark departure from this long established jurisprudence.

That doesn't make them right, as any moron with a second-grade literacy level can see by reading the Constitution.

But it won't hinge on whether or not the tax penalty is constitutional.

It should, because it isn't.

 

[Minoosh]

Both he and Romney had to change their tune to try to capture the vote.

I think this is changing. As the economy sheds jobs, and particularly jobs with benefits, a large segment of the population becomes not only uninsured but uninsurable. And I believe there is genuine fear there, across party lines.

If I have to have insurance, and an insurance company has to take me, there's at least a path to basic coverage. Right now I don't have one. A plan with a high deductible or co-pays would be fine. It's even conceivable that consumers, paying for their own highly portable coverage, could drive costs down.

As more people get booted out of group insurance pools universal coverage is going to start looking good. Despite the "let them die" cheers, I don't think this is how most of America really feels. If it turns out single-payer UHC is the more constitutionally sound answer, it could gather much broader public support than you might imagine. I'm thrilled that in 3 months, thanks to Obama, the feds will insure me (for a hefty premium).

It's become pretty clear that the GOP almost literally could not care less about the public's access to coverage. Their best idea is to undo Obamacare, let the "free riders" continue and let aging, possibly uninsurable people stick with the emergency room plan and the totally unnecessary threat of instant bankruptcy.

 

[Grizzly Adams]

So you're going to try to argue that universal healthcare does not fall under "Provide for the General Welfare"? Because that's quite the stretch.

It isn't a stretch at all if you interpret the clause as it was originally meant, as a limit on federal power and not a power granted. To interpret it any other way is to make the powers enumerated after it redundant because they are all powers that would fit squarely under the general welfare.

And, in case no one's noticed this yet, the opinion you're all crowing about is quite dangerous. Silberman's opinion states "the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior". Controlling precedent in the DC Circuit now reads that if Congress can prohibit something under the commerce clause, it can mandate it. Did you know Congress has prohibited the commerce of organs for sale?

Food for thought.

 

[madfoot]

So you're going to try to argue that universal healthcare does not fall under "Provide for the General Welfare"? Because that's quite the stretch.

Lots of things fall under the umbrella of general welfare. Free apple pies for every US household would fall under general welfare by your standards.

 

[BobTheDonkey]

Lots of things fall under the umbrella of general welfare. Free apple pies for every US household would fall under general welfare by your standards.

So, you're comparing universal health care to apple pies? Because I'm pretty sure that apple pies have much less of a direct effect on the General Welfare (both physically and economically).

 

[madfoot]

So, you're comparing universal health care to apple pies? Because I'm pretty sure that apple pies have much less of a direct effect on the General Welfare (both physically and economically).

I can't think of any non-arbitrary reason why universal healthcare is necessary under a general welfare clause and free apple pies aren't. Of course, is it possible that the general welfare clause wasn't intended to be a grant of power?

 

[BobTheDonkey]

I can't think of any non-arbitrary reason why universal healthcare is necessary under a general welfare clause and free apple pies aren't. Of course, is it possible that the general welfare clause wasn't intended to be a grant of power?

Can you show that your free apple pies for everyone would actually increase/improve the general welfare? That's a bit different from arguing the difference universal healthcare would have on the general welfare.


****, I forgot, this is politics subforum. We can't have a rational discussion. Everything here must, at some point (quite often), devolve into hyperbole.

 

[BenBurch]

It isn't a stretch at all if you interpret the clause as it was originally meant, as a limit on federal power and not a power granted. To interpret it any other way is to make the powers enumerated after it redundant because they are all powers that would fit squarely under the general welfare.

And, in case no one's noticed this yet, the opinion you're all crowing about is quite dangerous. Silberman's opinion states "the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior". Controlling precedent in the DC Circuit now reads that if Congress can prohibit something under the commerce clause, it can mandate it. Did you know Congress has prohibited the commerce of organs for sale?

Food for thought.

Slippery slope fallacy.

 

[RandFan]

Can you show that your free apple pies for everyone would actually increase/improve the general welfare? That's a bit different from arguing the difference universal healthcare would have on the general welfare.


****, I forgot, this is politics subforum. We can't have a rational discussion. Everything here must, at some point (quite often), devolve into hyperbole.

I would ask what is the cost to benefit analysis of free pies to everyone? If the benefits outweigh the costs then WHY THE HELL NOT?

IMO, this is the crux of the problem for GOP positions. Instead of asking what the trade offs are, the GOP (and I'm still a registered Republican) viscerally respond to a perceived principle that when it comes to social programs the costs must, by necassity, oughtwiegh the benifits and facts simply don't matter. Like belief in god, once you KNOW the truth^TM then facts are simply superfluous or they are wrong without consideration for the means of deducing those facts.

FWIW: I seriously doubt that free pies for everyone would net a benefits over costs. But hey, if the fact disagree with me then I'm with the facts.

 

[JoeTheJuggler]

I can't think of any non-arbitrary reason why universal healthcare is necessary under a general welfare clause and free apple pies aren't.

Unnecessary doesn't equal unconstitutional (unless the law in question depends on the "necessary and proper" clause, but that's been interpreted by the courts to refer to use within the enumerated powers anyway, so it wouldn't apply here).

And FWIW, the authority for the individual mandate (which is what's at issue in the constitutional challenge) is the Commerce Clause authority anyway.

I think many of us would have preferred a single payer system (that was based on revenues from taxes to pay for everyone's healthcare) and would then have depended on the enumerated authority of Congress to levy taxes for the general welfare.

But that doesn't mean the compromise plan we got (with the individual mandate) is unconstitutional. Current jurisprudence (case law) says that Congress can regulate any activity that has a significant impact on interstate commerce. The activity being regulated is participation in the healthcare system (which is already just under 50% publicly financed, so the claim that it's just all private enterprise is a disingenuous mischaracterization).

One of the arguments made by the government is that people switching into and out of coverage is in fact such economic activity that has a real and measurable effect on interstate commerce (taken in the aggregate). (That is, being currently uninsured--or more technically, lacking minimum essential coverage--is not opting out of the economic activity that triggers the CC authority.) All of the individual plaintiffs named in these lawsuits have a history of exactly that.

For people who wish to go with the original intention of the Commerce Clause authority (and ignore the well-established case law providing the broader CC authority I've described), what do you do about the original intention of Article 3 (the judicial authority that gives the judiciary authority to resolve all conflicts arising from the law including the Constitution)? Or do we only care about original intention for some bits of the Constitution?