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View Diary: Constitutional Misdirection Will Not Derail the Health Care Law (56 comments)

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  •  There is also (6+ / 0-)

    the argument that the mandate is in fact a tax, whereas those who do purchase insurance are granted an exemption from that tax, if not tax credits to help them pay for it.  Further there are various exemptions to the mandate, including if someone can not find an affordable insurance plan - they are not required to pay the tax. Anyone with Medicare, Medicaid, Tricare, or VA Care is exempt.  If your state establishes a single-payer system, as Vermont is currently doing, then everyone in that state would be exempt from the tax.  

    Opponents of the ACA have attempted to say that the ability to implement this type of mandate is exclusive right of the states which Mitt Romney has suggested - but as you state Scalia may be the lynchpin on that kind of arguement.  When presented with similar tenther ideas by the Tea Party Caucus, Scalia slapped them down hard.

    Many of the arguments against the mandate have hinged on the idea that it violates the Founding of the Nation, yet founding Father John Adams established a single-payer plan of sailors which included a mandate & fine while founding father George Washington implemented a mandate that every able-bodied white male between the age 18-45 be required to own a musket and join the Militia in 1879.  In both these cases there were few exemptions and no tax credits or subsidies to help purchase these products and/or services.

    Nice write up.

    Vyan

    •  Thanks. If memory serves DoJ has not (2+ / 0-)
      Recommended by:
      radarlady, Larsstephens

      really pushed the tax argument, though it seems they could. I'll check further on that.

      Yes, the sailor health case is great and as you point out the number of mandates to buy stuff from private parties is legion. I did not mention those two things only because I was limiting myself to what the court had ruled on.

    •  The insurance for sailors had two independent (3+ / 0-)
      Recommended by:
      Vyan, VClib, Loge

      grounds for constitutionality: the power to tax and maritime jurisdiction.  The notion that the mandate is a tax is arguable at best, so we're left to the interstate commerce argument.

      None of the diarist's arguments are on point: the power to tax provides power to penalize for failure to file, and one can be fined for failing to abide safety regulations once one has already entered the stream of commerce.  Of course one's conduct can be regulated once one has entered commerce, but the mandate raises an entirely different and novel point: can one be compelled to enter commerce in the first place?

      And that's simply not a question w/ an easy answer.

      •  the mandate is written into the bill (2+ / 0-)
        Recommended by:
        Gary Norton, Larsstephens

        as a tax, and authority to collect that tax is given to the IRS.

        Vyan

        •  That's one argument for it. (0+ / 0-)

          But that sort of formal argument isn't terribly compelling in broader array of arguments.  If they'd put a provision in the IRC to jail people that carried guns to school the provision wouldn't be any less unconstitutional.

          The placement of the penalty is a minor piece of circumstantial evidence and not much more.

          •  As I said in another part of thread (2+ / 0-)
            Recommended by:
            Gary Norton, Larsstephens

            the Virginia ruling was based on the idea that it wasn't a tax, even though it was specifically written as a tax into the law.  The Judges argument was that previous versions of the bill had it written differently, but the point is that the final bill - the current law - it is implemented purely as a tax, and clearly Congress has broad powers to implement taxation.  If you don't buy health care, you can be taxed - if you do you're exempt from that tax, and you may also receive tax credits to help you purchase it.  That's how the law is written, so it seems to me that's what these judges should be ruling on, unless they willfully choose to ignore the actual language of the bill - which is what the Virginia Judge, who also has partial ownership of an anti-Health Care Lobbying Firm - did.

        •  In what way would it not be (1+ / 0-)
          Recommended by:
          johnny wurster

          a capitation tax?

      •  Was a guy in California growing pot (2+ / 0-)
        Recommended by:
        Larsstephens, johnny wurster

        for personal consumption in the "stream of Commerce," as you describe it? Congress thought so and so did Scalia and the Court majority. The connection was tenuous at best, but adequate. In the case of health care every living person consumes health care services from the moment of birth to their death. They can pay for it directly or others will pay for it indirectly. Frankly, this issue is not nearly as close as many other CC cases.

        Look, I know you disagree and that's great. We'll just wait and see.

      •  The power to tax does not provide (1+ / 0-)
        Recommended by:
        Larsstephens

        the power to penalize. The necessary and proper clause provides the power to penalize for non payment. And that is the point. Under the commerce clause Congress has chosen to impose a requirement to buy insurance and under the necessary and proper clause they can sanction those who don't. If Congress has the power to require something it can penalize people for noncompliance with that requirement, whether it's to pay a tax or fee, get a license, but flood insurance, or, even, buy health insurance. That is why the "inactivity" argument is misdirection.

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