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Old 04-13-2010, 11:34 AM   #61
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Totally OT, but I have to say I love the second half of you signature. I should have it tattooed somewhere.
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Old 04-13-2010, 11:35 AM   #62
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Pretty clear what my point is . . .
But my point is that asking what programs the founders did or didn't intend for government to create is utterly and completely irrelevant. They intended for us to follow a process by which laws are changed and the Constitution is amended to be compatible with new programs -- no more, no less.

Their intent was simple: government that operates according to the document as currently amended combined with the ongoing ability of the states and the people to collectively change it (through the Constitutionally sanctioned process) whenever it no longer conforms to what we want our government to be.

Don't see how that's so hard to understand.
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Old 04-13-2010, 11:37 AM   #63
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But my point is that asking what programs the founders did or didn't intend for government to create is utterly and completely irrelevant. .
Then we agree.

Not sure why you're arguing with me. Maybe you should take issue with the assertions of Samclem, and others, to the contrary.
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Old 04-13-2010, 11:57 AM   #64
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Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge? I freely admit to being negligent here, as I have been avoiding the health care debate as much as possible, but I'll bet that I am not the only one who is not up to speed.
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Old 04-13-2010, 12:06 PM   #65
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Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge?
I believe the main one is the mandate that requires that everyone have health insurance.

The unfortunate thing is that this is the only way you can create a workable system with no underwriting or preexisting condition exclusions.
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Old 04-13-2010, 12:08 PM   #66
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Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge? I freely admit to being negligent here, as I have been avoiding the health care debate as much as possible, but I'll bet that I am not the only one who is not up to speed.
This article seems to sum it up decently: Is health-care reform constitutional? - washingtonpost.com
Quote:
Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power "to regulate commerce . . . among the several states." Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That's why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.
But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.
I don't necessarily agree with the author when he says that: "The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance". The Supremes have voted in two cases in the last 15 years or so to curtail Congress's broad expansion into areas that were reserved for the states. They haven't done away with some older precedents, but the more recent decision included comments by Stevens (I think) to go back and look at some of those older cases and re-examine how far they let the Federal Government gets its nose into the states' sovereignty.

Edit: Stevens and Thomas -
Quote:
The Court said that Congress must distinguish between "what is truly national and what is truly local"--and that its power under the Commerce Clause reaches only the former. In a concurring opinion, Justice Thomas went even further, urging abandonment of "the substantial effects" test.
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Old 04-13-2010, 12:09 PM   #67
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Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge? I freely admit to being negligent here, as I have been avoiding the health care debate as much as possible, but I'll bet that I am not the only one who is not up to speed.
I'm not sure any of us will know until the papers filed by the states are analyzed. A primary assertion is that the Bill forces individuals to purchase a private commodity (health insurance) with no viable choice. They contrast that with car insurance where you can simply choose not op drive. The Bill's authors counter that there is no mandate. Individuals can choose not to purchase insurance and will not be in violation of the law. The result of that choice is that they will be penalized with a tax (initially under $100, growing to ~$800 IIRC) that serves as a sort of user fee that presumably helps make society whole for the cost to respond to them in medical emergencies.

Edit: I see some other responses mention the same issue but I want to emphasize that supporters say there is no mandate. Anyone can choose to opt out and pay a tax just like people can refuse to insure their cars and stop driving.
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Old 04-13-2010, 12:32 PM   #68
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Edit: I see some other responses mention the same issue but I want to emphasize that supporters say there is no mandate. Anyone can choose to opt out and pay a tax just like people can refuse to insure their cars and stop driving.
Yup. And Congress' authority to tax is broad and well established by precedent.
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Old 04-13-2010, 01:28 PM   #69
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Edit: I see some other responses mention the same issue but I want to emphasize that supporters say there is no mandate. Anyone can choose to opt out and pay a tax just like people can refuse to insure their cars and stop driving.
However, this would be the FIRST time in recent memory that an American citizen would be penalized for NOT enrolling in a health care plan sponsored by the govt..........
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Old 04-13-2010, 02:23 PM   #70
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However, this would be the FIRST time in recent memory that an American citizen would be penalized for NOT enrolling in a health care plan sponsored by the govt..........
This, in my mind, is purely semantics.

Under the current tax code am I penalized for not having a mortgage or am I rewarded for having one? Same thing with the "health insurance penalty."
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Old 04-13-2010, 02:28 PM   #71
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This, in my mind, is purely semantics.

Under the current tax code am I penalized for not having a mortgage or am I rewarded for having one? Same thing with the "health insurance penalty."
Uh no............not that I could ever change your mind.........
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Old 04-13-2010, 02:39 PM   #72
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Uh no............not that I could ever change your mind.........
With arguments as well articulated as that, are you surprised?
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Old 04-13-2010, 02:58 PM   #73
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With arguments as well articulated as that, are you surprised?
The only thing I am surprised at is why I don't put this thread on ignore a long time ago..........
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Old 04-13-2010, 03:58 PM   #74
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This was an excellent read. Thanks to all the posters for the informative discussion and the civility.
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Old 04-13-2010, 03:58 PM   #75
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Thanks to Ziggy, Leonidas, and donheff for your responses. This line from the Washington Post article really caught my eye.
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While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.
Golly, this would seem to indicate that it would be easier for a single payer plan to pass constitutional muster than the present legislation. The court couldn't strike it down on taxing or mandate grounds without taking social security and medicare with it.

Aside: Doesn't medicare actually flow through the private insurance system? I seem to remember my Mother's medicare statements coming from insurance companies.

I have somehow absorbed the notion that the interstate commerce clause has been egregiously abused for years, but now when I go looking for real stinkers of examples, I'm not finding much. Using it to defend national child labor laws doesn't seem that much of a stretch to me now. (I know there were other New Deal shenanigans, court packing included.) Maybe that is just more of my super conservative southern upbringing showing.

It does seem to me that for real hot-button issues, ones where the country is sharply divided but the majority party succeeds at passing controversial legislation, the constitution often takes a back seat. For issues that folks (including supreme court justices) feel strongly about, the plain language of the constitution often gets twisted and "extended". Everybody knows that getting 2/3 of the states to pass a constitutional amendment is purt-near impossible.

I am no supreme court scholar, but this goes at least as far back as 1888 when the supreme court decided that marriage laws were a matter for the states, despite the rather clear language of the "full faith and credit" clause.
Reconstruction, Segregation, and Miscegenation: Interracial Marriage and the Law in the Lower South, 1865-
Well, how the supreme court managed to declare with a straight face that marriage is not a contract that should be recognized across state lines is beyond me, but miscegenation was a really hot topic, and so we got a weaselly ruling.

If the health care bill can be attacked on constitutional grounds, I have little doubt that the Roberts court will strike it down.
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Old 04-13-2010, 04:41 PM   #76
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This was an excellent read. Thanks to all the posters for the informative discussion and the civility.
You are welcome... I just stopped responding to certain remarks to keep it civil... I was itching but figured self-control is better
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Old 04-13-2010, 07:05 PM   #77
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Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge?
Thanks for your subsequent post on this subject. If you're not "researched out" yet, here's a fairly accessible (i.e. even I could follow it) discussion of the issue of the constitutionality of the legislation. It's from the Heritage Foundation, and they obviously opposed this legislation in general and this provision in particular.
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An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented-- not just in scope but in kind--and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.
We'll see how this turns out. I'm hoping the SCOTUS will get to hear a case on this very soon.
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Old 04-13-2010, 07:20 PM   #78
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The Heritage Foundation obviously has an axe to grind on this issue, so it's not surprising that they'd come down with a conclusion against the legislation. Most of the reporting I've seen came down on the other side, although some folks will claim that the media has an axe to grind of their own.

Time will tell but I wouldn't get my hopes up for it to be overturned.

Meanwhile the easiest fix in the world is to assess a health insurance tax on everyone and then give deductions for those people who have insurance. Presto, fixed.
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Old 04-13-2010, 07:29 PM   #79
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Meanwhile the easiest fix in the world is to assess a health insurance tax on everyone and then give deductions for those people who have insurance. Presto, fixed.
I think passage (even through reconciliation) of this new tax would be very unlikely. Impossible after November.

And, of course, the President wouldn't sign it, since it would be a new tax on people earning less than $200K a year. Right?
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Old 04-13-2010, 07:40 PM   #80
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I think passage (even through reconciliation) of this new tax would be very unlikely. Impossible after November.

And, of course, the President wouldn't sign it, since it would be a new tax on people earning less than $200K a year. Right?
I agree new legislation is unlikely but it would probably be forced if the Supreme Court overturns the individual mandate. All that ruling does is allow people to game the insurance market. It doesn't undo the rest of the legislation.

And we all know that the promise not tax people earning less than $200K is toast if he wins a 2nd term . . . but not a minute before.
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