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Old 09-25-2010, 11:07 AM   #81
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. As far as I've ever seen, the Commerce clause, even in it's recent incredibly convoluted interpretations, has never been used to require a citizen to purchase an item or service from a private supplier.
I don't know of any examples where the Fed Gov't mandates a citizen must buy a product - just for existing as a citizen. I think the commerce clause has been used to say what a citizen can not do.
With the commerce clause the way it was used in the past you had to do something that the Fed then told a citizen not to do it.

The other legal point I read being used is eminent domain.
With eminent domain; you don't have to be doing anything ( but I would think owning the property being taken, is doing something). I would guess with this clause the reasoning would be: For the greater good, you must buy health ins. If you do not buy health ins. the Gov't will take your money.

As you can see, using this clause in this way opens the door to more mandates.

What is most hideous about using the IRS is that the person's rights are drastically reduced. If with eminent domain a citizen can appeal to the courts to fight to have their property being taken away and/or the amount of compensation.
With the IRS the citizen does not have those options. If you do not pay your tax/penality the money can be taken from the citizen and they can be subjected to other penalties. Then there is the pure fear factor with dealing with the IRS.

Again, I do not think this is being focused upon because of the support for the bill.


Is the Health Care Law Unconstitutional? - NYTimes.com

Commerce Clause - Wikipedia, the free encyclopedia

Fifth Amendment to the United States Constitution - Wikipedia, the free encyclopedia
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Old 09-25-2010, 11:13 AM   #82
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Originally Posted by ERD50 View Post
We cross-posted there, but assuming dex didn't send you money in a PM , I'll ask this:

What are those precedents? I think I agree with you in concept, but I am unaware of the Federal govt requiring everyone to purchase something (as opposed to taxing them for it). The (kinda stretched, IMO) response to the States requiring people to buy car insurance is that you don't have to drive a car. So they can't 'force' you. So I consider that a stretch, but it is a legal distinction it seems.

Your thoughts?

-ERD50
Here's an example that matches your objection about requiring a purchase or paying a penalty -- I offer you Medicare Part D (the drug portion). When first enrolling for Medicare, if one does not enroll for Part D within 7 months, there is a penalty. Decide to hold off on drug coverage for a year? Your premiums are increased permanently.

Whether you pay penalty premium or a tax -- it's still the same -- A disincentive for using benefits without joining the pool early in your enrollment. Someone has to pay for the use of the benefits. Generally that happens when you pay an insurance premium. If people delay in paying for coverage and then use the benefits, the cost of benefits goes up for everyone.

10 Things You Should Know about Medicare Part D - NASDAQ.com

9. When should I join a Part D Plan?
Your seven-month Initial Enrollment Period is the best time to sign-up. If you don't join when you're first eligible, you can enroll in the Part D Open Enrollment Period , which is from November 15th to December 31st each year. Unless you have had other creditable prescription drug coverage, you may have to pay a late penalty if you fail to sign-up when you're first eligible. This penalty is typically a permanent increase in your premium.



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Old 09-25-2010, 11:22 AM   #83
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Whether you pay penalty premium or a tax -- it's still the same -- A disincentive for using benefits without joining the pool early in your enrollment. Someone has to pay for the use of the benefits. Generally that happens when you pay an insurance premium. If people delay in paying for coverage and then use the benefits, the cost of benefits goes up for everyone.
Is it mandated that you join it?
Or, can you never join it if you want?
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Old 09-25-2010, 02:33 PM   #84
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The new health care law change that happened recently ( July 1, 2010) was the Pre-Existing Condition Insurance Plan. I'm suprised it's not in the news more. I don't know anyone who uses it or how well, or not it is working. My state has a High Risk Pool Insurance that is very expensive and only the very sick use it. Does anyone know more ? I have health insurance coverage as many do, though my employer but I always like to have a fall-back plan.
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Old 09-25-2010, 04:52 PM   #85
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Is it mandated that you join it?
Or, can you never join it if you want?
Not mandated, if you never want coverage. But if you apply more than 7 months after your Medicare eligibility date your premiums will be higher.

I know where you're headed with this dex. If it's not mandated, it's not the same as what's required under the health insurance bill.

My point is that it is exactly the same. The government is assuring that you pay into the pool in order to get services. If you choose to simply take a tax hit and never use services, it's just a way to get everyone to contribute to the pool.

There will come a point in time when an individual will need a drug benefit. If they have no drug coverage, the cost of the plan will be expensive -- but not as expensive as the cost of drugs without a plan.

-- Rita
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Old 09-26-2010, 09:35 AM   #86
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So if I don't brief the issue I am being emotional?
Not at all. I'm just saying that you have a well recognised (by me at least, based on your postings) bias toward the concept of universal coverage. Personally, I am for the idea, I just have an equally biased view against the federal government mandating and administering it, or pretty much anything else. Since my view of government coercion seems to be on the losing side, I'm curious to see what legal arguments will be used to stretch this particular rubber band around the Constitution. I have very little hope that the states will win the argument, but I am completely unaware of the 80 years of precedents that you are talking about. The only precedent I can see is the one of the SCOTUS supporting the other two branches of gov't whenever the issue is gov't power vs. individual rights. So, nothing personal, just interested in more details. If you don't want to bother, I'm sure I'll see them as the various cases work through.

And I definitely agree. If they can make the ruling on Raich that they did, this one should be slam dunk for the gov't. I think that in 100 years the Raich ruling will rank right up there with the Slaughterhouse rulings as one of the worst decisions they ever made. Assuming there is a U.S. in 100 years.
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Old 09-26-2010, 10:41 AM   #87
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The new health care law change that happened recently ( July 1, 2010) was the Pre-Existing Condition Insurance Plan. I'm suprised it's not in the news more. I don't know anyone who uses it or how well, or not it is working. My state has a High Risk Pool Insurance that is very expensive and only the very sick use it. Does anyone know more ? I have health insurance coverage as many do, though my employer but I always like to have a fall-back plan.
There are a few problems. One is that you have to be uninsured for 6 months to get on this plan. So, if you are leaving a job where you had insurance you would have to go bare for 6 months. Therefore, many prefer in that case a HIPAA eligible plan (which may be your state's risk pool). HIPAA plans though tend to be very pricey and sometimes simply unaffordable.

If you are not HIPAA eligible you may prefer to go on a state risk pool, if one is available, than to have this gap in insurance. This can be pricey to unaffordable, depending on the state. I know some states use federal and state funds to lower the cost for lower income people. If there is no state risk pool then your only option might be to wait out the six months and buy into the federal plan. If you can afford it. There isn't any subsidies for the federal plan.

The cost is fairly high, with some states very high. After all, there is no employer to pay part of the cost. There isn't one single federal rate for the pool. The southern states seem to have the highest rates and the upper midwest tend to be on the lower end.
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Old 09-26-2010, 11:48 AM   #88
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I know where you're headed with this dex. If it's not mandated, it's not the same as what's required under the health insurance bill.

My point is that it is exactly the same.

-- Rita
I think we agree that the end result is essentially the same. But what we are asking is, could the Supreme Court decide that that small distinction is the difference between being Constitutional or not?

The Constitution is a collection of words. Supreme Court rulings are collections of words. Words sometimes have precise meanings, sometimes those words are open to interpretation. We just don't know where this might fall.

Didn't a State Supreme Court once rule on whether a Tomato is a fruit or a vegetable?

googling....

No, it was the SCOTUS:

Tomato - Wikipedia, the free encyclopedia
Quote:
Botanically, a tomato is a fruit: the ovary, together with its seeds, of a flowering plant.

...

This argument has had legal implications in the United States. In 1887, U.S. tariff laws that imposed a duty on vegetables but not on fruits caused the tomato's status to become a matter of legal importance. The U.S. Supreme Court settled the controversy on May 10, 1893 by declaring that the tomato is a vegetable,
So, if the SCOTUS can turn words to mean something they don't mean, I don't think there is anything clear or obvious about this at all.

-ERD50
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Old 09-26-2010, 12:36 PM   #89
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There are a few problems. One is that you have to be uninsured for 6 months to get on this plan. So, if you are leaving a job where you had insurance you would have to go bare for 6 months. Therefore, many prefer in that case a HIPAA eligible plan (which may be your state's risk pool). HIPAA plans though tend to be very pricey and sometimes simply unaffordable.
This, to me, is a really, really, REALLY stupid aspect of these reforms. I mean, how many people are they going to encourage to "go naked" for six months so they can get this rather than the (likely) much more expensived state risk pool?

I can't believe anyone thought this was a good idea.
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Old 09-26-2010, 02:08 PM   #90
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So, if the SCOTUS can turn words to mean something they don't mean, I don't think there is anything clear or obvious about this at all.

-ERD50
OFGS Read the case
Nix v. Hedden - Wikipedia, the free encyclopedia
FindLaw | Cases and Codes
The job of the supreme court was not to define the concept of fruit or vegetable but to interpret what CONGRESS meant by a fruit or vegetable.

Isn't that what every sooper dooper conservative tea party member wants? They claim they want the supreme court to interpret the law instead of making it. ergo the only issue is what Congress meant
The canons of interpretation at the time are clear. Words were interpreted with their conventional meaning. Congresss was presumed to mean the conventional meaning. The Court stated

"Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert. "

So the court knew exactly both the common and the scientific meaning of the word and when with the common meaning precisely because the canons of interpretation told it to.
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Old 09-26-2010, 02:20 PM   #91
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This, to me, is a really, really, REALLY stupid aspect of these reforms. I mean, how many people are they going to encourage to "go naked" for six months so they can get this rather than the (likely) much more expensived state risk pool?

I can't believe anyone thought this was a good idea.
The primary rationale was that the goal was to cover those who had gone without coverage and there was limited money so they couldn't cover everyone. Another concern was because there was no mandate to buy insurance yet people could just hop on the plan at any time, causing an adverse selection problem. But there are ways around that--requiring you use up COBRA, and requiring that you either come on to the fed plan from another plan with no break in coverage, or if there is a break in coverage, then have a preexisting condition waiting period.

The more efficient temporary solution would have been beefing up state risks pools and requiring states to have one who did not. Give the states the money to keep the cost of the pools down, rather than having a whole separate system. Many states with pools now have two separate systems running. Waste!
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Old 09-26-2010, 03:53 PM   #92
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Nix v. Hedden - Wikipedia, the free encyclopedia
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The job of the supreme court was not to define the concept of fruit or vegetable but to interpret what CONGRESS meant by a fruit or vegetable.
Fine. But it doesn't change anything in what we are talking about. We are still wondering how the Supreme Court could interpret this - and just as there are different possible interpretations (botanical and common) for the word 'vegetable', there may be different interpretations of this issue.

I assume some significant % of SC cases are not unanimous - sometimes (often?) they don't even agree among themselves.

edit/add rant - Just wanted to throw in the comment: I think it is a poor reflection on Congress that they write laws that need to be interpreted like this. What a waste of resources to go through the process of bringing this to the SC! It is their job to write the laws, they ought to do it in a clear, concise, precise non-ambiguous manner. What's the point of taxing fruit at a different rate from vegetables anyway? If they stuck to sensible, meaningful policies rather than micro-management of minutia, this would have never come up.

-ERD50
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Old 09-26-2010, 04:02 PM   #93
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I can't believe anyone thought this was a good idea.
Martha gave one explanation - but I'm not sure that any 'thought' went into it. It might just be a by-product of the many pages of code.

I wonder what % of the "Ayes" on that bill could explain it?

-ERD50
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Old 09-26-2010, 04:54 PM   #94
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Martha gave one explanation - but I'm not sure that any 'thought' went into it. It might just be a by-product of the many pages of code.

I wonder what % of the "Ayes" on that bill could explain it?

-ERD50
It was debated, and the house and senate bills differed on the issue, with the senate trumping.
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Old 09-26-2010, 04:56 PM   #95
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This, to me, is a really, really, REALLY stupid aspect of these reforms. I mean, how many people are they going to encourage to "go naked" for six months so they can get this rather than the (likely) much more expensived state risk pool?

I can't believe anyone thought this was a good idea.
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Martha gave one explanation - but I'm not sure that any 'thought' went into it. It might just be a by-product of the many pages of code.

I wonder what % of the "Ayes" on that bill could explain it?

-ERD50
I think it’s what results from trying to satisfy too many individual interests without alienating others. Nobody wanted this provision, everyone wanted something different, but this is the only thing they were able to agree on, it took a Herculean effort and probably a heavy toll on the mental and physical health of legislative staff.

I think it’s sad, and has elements of Greek tragedy.
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Old 09-26-2010, 07:28 PM   #96
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I think it’s what results from trying to satisfy too many individual interests without alienating others. Nobody wanted this provision, everyone wanted something different, but this is the only thing they were able to agree on, it took a Herculean effort and probably a heavy toll on the mental and physical health of legislative staff.

I think it’s sad, and has elements of Greek tragedy.
Fortunately it's a transitional thing, and will be a moot point one way or another in a few years.

I just have to make sure I can maintain coverage for myself and my family through whatever happens. (The stuff I heard being spouted at a recent political party convention in San Diego is none too reassuring. Less crazy, please?)
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Old 09-26-2010, 07:56 PM   #97
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edit/add rant - Just wanted to throw in the comment: I think it is a poor reflection on Congress that they write laws that need to be interpreted like this. What a waste of resources to go through the process of bringing this to the SC! It is their job to write the laws, they ought to do it in a clear, concise, precise non-ambiguous manner. What's the point of taxing fruit at a different rate from vegetables anyway? If they stuck to sensible, meaningful policies rather than micro-management of minutia, this would have never come up.

-ERD50

1) You have to pay off the right campaign contributors. You can't just go willy nilly giving out favors to everyone, no one will pay if you do.

2) You get the language for the law directly from the lobbyist along with the "contribution".


More seriously
Ever try to define a "weapon of mass destruction" in a concise, precise non-ambiguous manner ?
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Old 09-27-2010, 08:04 AM   #98
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We are still wondering how the Supreme Court could interpret this - and just as there are different possible interpretations (botanical and common) for the word 'vegetable', there may be different interpretations of this issue.
Even its members have concerns in this area:

A Judge’s Warning About the Legitimacy of the Supreme Court

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The historian Jeff Shesol wrote in The Times Book Review: “Breyer has been less willing than any of his fellow justices to overturn acts of Congress.” The Supreme Court now has no old-fashioned liberals, like William Brennan or Thurgood Marshall. If it did, Justice Breyer’s deference to Congress would likely make him a centrist.

So would his view of how the court should decide cases. As he puts it in the book, “Making Our Democracy Work: A Judge’s View,” the court “must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law.” Pragmatic means reckoning with a law’s words and history and the precedents interpreting it, but also its “purposes and related consequences, to help make the law effective.” The goal, he says, is “to apply the Constitution’s enduring values to changing circumstances.”
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Justice Breyer describes the court in its early years, when it decided few cases and the ones it decided were trivial. From that lowly state, the court has earned considerable authority, but it has also forfeited legitimacy with bad decisions, some so bad they were “ignored or disobeyed.”
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The message of Justice Breyer’s book is that the court jeopardizes its legitimacy when it makes such radical rulings and that, in doing so, it threatens our democracy. That message is powerful, ominous, and very useful.
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Old 09-27-2010, 08:52 AM   #99
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Fortunately it's a transitional thing, and will be a moot point one way or another in a few years.

I just have to make sure I can maintain coverage for myself and my family through whatever happens. (The stuff I heard being spouted at a recent political party convention in San Diego is none too reassuring. Less crazy, please?)
Well, this is political season so there tends to be more goofiness in the air. Hopefully it'll clear out with the cooler winter breezes.

The assessment offered by KFF is still positive, however. Pulling it Together: Health Reform's Six-Month Checkup - Kaiser Family Foundation

Quote:
Still, our monthly polling finds the public split on the law, with 49 percent in favor vs. 40 percent against in September and the rest undecided. Public sentiment about health reform has shifted within a narrow band since the spring, with slightly more in favor in some months and slightly more against in others. For many who oppose it, the law reflects deeper discontent. When we asked people who said they were angry about the law why they were angry, the vast majority reported that, more than being upset with the law itself, they were angry about the general direction in Washington. Meanwhile, with a few notable exceptions -- such as requiring that people have insurance -- the law's major provisions appear to be very popular with the public.
I still feel that business, especially small business, benefits from this reform. It decouples health care from employment and should make it much easier to hire. Over time it should also lower the cost disadvantage that penalizes small groups.
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Old 09-28-2010, 01:04 PM   #100
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Switzerland is smaller than West Virginia, and has about the same population as Virginia. How many foreign countries provide health care free of charge to anyone that shows up on their door step? How much of the worlds drugs are subsidized by U.S. sales? How does the U.S. health research budget compare to say the Swiss, French or English?

I don't have an answer to any of these questions, but I know that there are no simple answers to complex questions. Comparing health care by country and proclaiming one can do it so we can too, is illogical. Only if the two countries have similar populations, size, legal structure, political structure, climate, gene pool, and the list could go on forever.
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