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
This was an excellent read. Thanks to all the posters for the informative discussion and the civility.
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.Will somebody fill me in on the parts of the health care reform bill that are likely to face constitutional challenge?
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.
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?
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.
We'll see. If the SCOTUS doesn't approve the individual mandate, the electorate will get to see the CBO numbers, unrealistic as they were, recalculated without the individual mandate/tax. And the loose threads of this tapestry will continue to ravel. And the premium increases will be going in earnest (what will health insurance cost when you can buy it after the diagnosis/accident? We'll know by then).Be of good cheer, this thing is here to stay.
We'll see. If the SCOTUS doesn't approve the individual mandate, the electorate will get to see the CBO numbers, unrealistic as they were, recalculated without the individual mandate/tax. And the loose threads of this tapestry will continue to ravel. And the premium increases will be going in earnest (what will health insurance cost when you can buy it after the diagnosis/accident? We'll know by then).
1988: Medicare Catastrophic Coverage Act is passed. ( It was more popular than the present "reform" law).
1989: Medicare Catastrophic Coverage Repeal Act is passed.
OK. I read the Heritage Foundation piece as well as the Washington Post piece and had to laugh. They are strikingly similar, even down to the same flawed analogy:This article seems to sum it up decently: Is health-care reform constitutional? - washingtonpost.com
The W.P.:Congress could constitutionally require every American to buy a new Chevy Impala every year, or a pay a "tax" equivalent to its blue book value.
A more reasonable analogy might have involved a law requiring every person to buy a car every year, but I don't think there is anything the the health care legislation requiring purchase from a specific company.Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another.
He might as well have said "Man, we'd better kill this thing before it gets out there and becomes popular."This legislation won't go into effect tomorrow. In the interim, it is far more vulnerable than if some citizens had already started to rely upon its benefits.
The author of the WP article, Randy E. Barnett, is also one of the authors of the Heritage Foundation article. Barnett teaches Constitutional Law at Georgetown, previously taught at Boston U Law School, he also was lead counsel in Ashcroft v. Raich / Gonzales v. Raich which is one of the more recent Supreme Court cases on the Commerce Clause. He has written 8 books, all but one or two on Constitutional Law, is a regular contributor to newspapers on Constitutional Law, and very often on the Commerce Clause. I've been reading his articles for a few years at a law blog I frequent. Politically he is a Libertarian.Is the Washington Post really reprinting position papers passed to them by political operatives? Nah. They just printed an editorial by the lead author of the Heritage Foundation report without ever mentioning his association with them.
She liked the Massachusetts health care system, even as a model for a federal system (she wrote her article late last year). However, I think she makes a case for the same thing that others are saying, that this is a state issue and (my interpretation now) the recently passed federal health care legislation oversteps the Constitutional separation between state and federal sovereignty." [the] U.S. Constitution, in text, purpose, structure, and policy provides little support for a federal health care right"
Emphasis added to highlight.Health is central to state governance, whether it is explicitly recognized in the constitution or inextricably intertwined with other state laws and values. Therefore, ardent advocates of health care rights should not be troubled by the absence of constitutional guarantees of health in the U.S. or separate state constitutions. The multiple deficiencies in the country’s health care system to provide essential health care to individuals inevitably will, and already are, receiving attention. Exactly how those concerns will be addressed can only benefit from the views of the public, expressed through their state constitutions.
Point taken. I agree. The paragraphs you quoted were a good summary.I offered the article not because I agreed with Barnett, but rather because I thought the couple of paragraphs did a decent job of summarizing the concept behind a legal challenge to the law under the Commerce Clause.
This reflects a misunderstanding of the law. For example, California law allowed noncommercial marijuana that does not cross state lines to be prescribed by doctors for medical purposes. The Supremes found that it was legal for the feds to regulate this noncommercial activity under the commerce clause because marijuana in general is bought and sold in interstate commerce.But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented.
..the U.S. is, or is becoming, a socialist state.
nailed it.
This was the first sentence in the OP that started this thread (bold added)I particularly like all the supporting evidence. Keep up the good work.
No supporting evidence, just an assertion that this is the most frequently expressed hyperbolic claim, then points put forward to refute it. It's hard to be a stickler about getting documented support after a start like that.Of the many ridiculous hyperbolic claims that pass for truth these days the one expressed most frequently is that the U.S. is, or is becoming, a socialist state.
No supporting evidence, just an assertion that this is the most frequently expressed hyperbolic claim, then points put forward to refute it. It's hard to be a stickler about getting documented support after a start like that.
I already supplied a quote from this board that claims we're already a socialist welfare nation. I could look up more, but you'd just ignore them too.
ridiculous hyperbolic claims that pass for truth these days
. . .All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies' legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare "deemed" to have been enacted, rather than actually publicly voted on by Congress.
Except nearly all of this is either an exaggeration or an outright distortion.. . .All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies' legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare "deemed" to have been enacted, rather than actually publicly voted on by Congress.
Except nearly all of this is either an exaggeration or an outright distortion.
None of our banks or auto companies have been nationalized. U.S. equity ownership doesn't equal nationalization. Moreover the process of liquidating these stakes is taking place faster than expected and is accelerating. Bondholders weren't subordinated to union bosses. Bondholders voted for a plan of reorganization in each and every case.
I guess that is like the "dictatorial" process used to pass healthcare (majority vote). Obamacare wasn't deemed to have been passed by the House, the House voted on it.
And I don't recall the same people expressing concern about adherence to the Constitution and the "rule of law" when it came to expansive readings of executive powers in the name of national security.
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.
How did Rick Wagoner lose his job? Did the government fire this CEO of a private company? How could that happen?None of our banks or auto companies have been nationalized. U.S. equity ownership doesn't equal nationalization.
Good. But how is this now-established precedent likely to affect the private sector?Moreover the process of liquidating these stakes is taking place faster than expected and is accelerating.
I'm assuming you know about the government coercion of the larger bondholders (easy when the government regulates the industries of the folks owning the bonds), and that unions with debt junior to the other bondholders were placed ahead of them in the government-brokered settlements.Bondholders weren't subordinated to union bosses. Bondholders voted for a plan of reorganization in each and every case.