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I know that all of you knew this, but here's the long and boring legal answer. I hear this question - where in the constitution does it say that you are entitled to health care? The answer I usually hear is in the preamble. There's actually an even better answer.

First, it's a trick question - yes, it's true that the constitution does not say anything about health care, specifically, nor does it say that the government can build highways and bridges. However US Const. Art. I, Section 8 states:

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States."

That means that Congress can tax and spend for whatever it chooses, including health care, highways, and bridges, unless another part of the constitution forbids it (for example, the 1st amendment bars Congress from spending money for religious activities). So the question really should be, where does the constitution forbid Congress from passing health care reform.

Originally posted to CSA Sucks on Wed Aug 12, 2009 at 09:01 AM PDT.

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Comment Preferences

  •  You will have to overcome libertarians (4+ / 0-)
    Recommended by:
    Orinoco, Lujane, revelwoodie, The Creator

    To do that, you need to talk about the precedent in Supreme Court.  The debate between Madison and Hamilton is key - and in the end, Hamilton won.

    Butler v. US (1936) pretty well settled the case.  Both majority and dissenting opinion agreed that general welfare goes beyond the enumerated list of functions in the Constitution.

    Primarily, this is because it makes little or no sense to have continual constitutional amendments every time we get an additional thing to fund.  But it's also because in a series of court cases that argued that general welfare is about more than just the enumerated benefits in Article I Section 8.

  •  Great, but that's not exactly the question (5+ / 0-)

    It's whether it's constitutional to mandate that people purchase the services of a private entity (health insurance) -- whereas with mandatory auto insurance, it's with regards to the exercise of a privilege (driving) that one is free to forego.  

    That question is explored, among other places, here.

    •  A Fine Article, But (1+ / 0-)
      Recommended by:
      Orinoco

      These are fairly basic principles of constitutional law, which were pretty clearly settled in McCulloch v. Maryland.  It's depressing that this nonsense is still getting trotted out to try to derail rational legislation.

      •  Not really. (3+ / 0-)

        That the ability to regulate health care delivery under the Commerce Clause cannot be seriously questioned, but the mandates issue is a bit trickier.

        •  Minimum Wage (1+ / 0-)
          Recommended by:
          Adam B

          I like Bill Treanor's analogy to minimum wage laws.  Congress mandates that employers have to pay a minimum amount to their employees.  This is strictly a transaction between private parties.  Constitutionality of minimum wage laws is long past dispute.

          I see this as a tricky issue only if you are interested in screwing up constitutional law, which I guess is the objective of a lot of these folks.

          •  But you can opt out of minimum wage laws ... (1+ / 0-)
            Recommended by:
            coffeetalk

            ... don't hire anyone.  

          •  There are arguments on both sides (1+ / 0-)
            Recommended by:
            Adam B

            but Adam B is right, the constitutional issue with something like mandates -- where you are forced to purchase something from a private entity -- is a little trickier.

            And, of course, there was a big debate over the constitutionality of minimum wage laws and other similiar type mandates on private constracts, when they were passed.  Conservatives on the Court eventually lost that fight (the "switch in time that saved nine" on the Court during the Roosevelt years), but I don't think there's any guarantee how this conservative-majority Supreme Court will rule on the issue.  

            •  Only In The Sense (0+ / 0-)

              That there are arguments on both sides in the creationism "debate."  I really don't see any serious constitutional argument (as opposed to ideological propaganda) on the other side.

              •  For a while in our history (0+ / 0-)

                from about the beginning of this century until the "switch in time that saved nine," the Supreme Court had expressly held that things like minimum wage and the mandated 40 hour work week were unconstitutional under doctrinces like "substantive due process."  The Due Process clause didn't change in the 1930's -- only the opinion of one justice (after FDR threatened to "pack the Court."  

                All I'm saying is that it's entirely possible that today's conservative Court could be receptive to the same arguments that prevailed -- before that one justice switched his vote -- in striking down that kind of legislation.  

                •  possible, but I really doubt that (0+ / 0-)

                  Justice Kennedy would go along with it.

                •  The Only Justice (0+ / 0-)

                  Who has ever even flirted with the idea of reviving substantive due process to support "economic rights" is Thomas.  Even Scalia has no use for the theory, and I have never seen any suggestion that Roberts and Alito have any interest in the doctrine.  While the Tenth Amendment has made a bit of a comeback in the criminal area recently, I really have no doubt that regulation in the healthcare area is well within Congressional power to regulate commerce - no rational person could seriously argue otherwise since, after all, healthcare is something like one-sixth of the entire economy.  And as I set out above, the arguments against mandates are, IMO, only superficially more sophisticated.  Suppose Congress imposed a tax of X in order to pay for universal coverage.  Clearly, that would be constitutional under a combination of the commerce clause, the tax and spend clause, and the necessary and proper clause.  Then Congress says that you can be exempt from the tax if you or your employer pay for private health insurance.  Again, no constitutional problem - and isn't that just the flip side of the mandate?

    •  The question as you phrased it... (1+ / 0-)
      Recommended by:
      Orinoco

      ...is certainly applicable to the legislation currently being drafted.  But I don't think it's really what most of the "constitutionalists" are on about.  They use the same argument against single payer, and that's not mandating people to purchase the services of a private entity.  That's more like using taxation to fund a public good, like public schools.

      (-9.62/-6.77) Democratic Socialism: Because evolution really is going somewhere.

      by revelwoodie on Wed Aug 12, 2009 at 09:18:34 AM PDT

      [ Parent ]

  •  This question was asked of Sen. Cardin (3+ / 0-)
    Recommended by:
    Orinoco, luckylizard, revelwoodie

    at his town hall the other night, and he did say Article I, but was shouted down as he said it - only those of us near the front could hear him, and he didn't expand on the answer.  I'm forwarding your diary to his office - maybe it will help at his next town hall.

    Thank!

  •  Any supporting material? (1+ / 0-)
    Recommended by:
    Orinoco

    I'm sure you're right, but some kind of support, or maybe scanning your ConLaw degree and posting a link to it, would be helpful.

    Not a Democrat, nor a Republican. This libertarian is a free-thinker.

    by emn316 on Wed Aug 12, 2009 at 09:17:54 AM PDT

    •  He quoted the constitution. (0+ / 0-)

      If you have a copy somewhere, I'm sure you'll find that adequate as "supporting material."

      And since when do people need a Law degree to post opinions about the constitutionalty of health care reform on this blog?

      (-9.62/-6.77) Democratic Socialism: Because evolution really is going somewhere.

      by revelwoodie on Wed Aug 12, 2009 at 09:21:13 AM PDT

      [ Parent ]

      •  Heh, ok. (0+ / 0-)

        My bad. It's not like the rest of the Constitution (you capitalize it, so you know) hasn't been twisted out of shape for the last 200+ years. I was looking for case law, support from the Federalist Papers, or the like. Didn't realize I was supposed to take an sentence fragment from Article 1 as definitive proof.

        I guess it works, though, seeing as how "the right of the people to keep and bear Arms, shall not be infringed". Cool.

        Not a Democrat, nor a Republican. This libertarian is a free-thinker.

        by emn316 on Wed Aug 12, 2009 at 09:24:39 AM PDT

        [ Parent ]

        •  Yes. I am aware of the fact... (0+ / 0-)

          ...that Constitution is capitalized.  If you scan the rest of my comment, I'm sure you'll find some other typos to seize on and thereby assert your own superiority.  I was taking exception to your "show me your degree" comment, as I considered it needlessly rude.  I should have known I would receive the same treatment.

          (-9.62/-6.77) Democratic Socialism: Because evolution really is going somewhere.

          by revelwoodie on Wed Aug 12, 2009 at 09:30:16 AM PDT

          [ Parent ]

          •  Your victimhood is showing (0+ / 0-)

            All I asked was for more than one person's interpretation of Article 1, Section 8. I'm so sorry that you consider it rude. Is there any historical case law supporting this interpretation of the "General Welfare" clause, or are you arguing with me just to be a pain in the ass?

            Not a Democrat, nor a Republican. This libertarian is a free-thinker.

            by emn316 on Wed Aug 12, 2009 at 09:32:42 AM PDT

            [ Parent ]

    •  I don't know about this "ConLaw degree" that u (0+ / 0-)

      speak of, BUT I do have a law degree from a top 20 law school and graduated Order of the Coif. I am also admitted to practice in the states of Texas and Illinois and have practiced law for 12 years.

      I will not scan my law degree, bar admissions, etc, for privacy - so you will just have to take me for my word on that.

  •  Same bogus argument re: income taxation (0+ / 0-)

    Of course the fact that 16th Amendment made this argument moot doesn't matter to the wing nuts. They conveniently ignore that fact too.

    Here is the historical context that resulted in the 16th Amendment:

    In 1895, in the Supreme Court case of Pollock v Farmer's Loan and Trust (157 U.S. 429), the Court disallowed a federal tax on income from real property. The tax was designed to be an indirect tax, which would mean that states need not contribute portions of a whole relative to its census figures. The Court, however, ruled that the tax was a direct tax and subject to apportionment. This was the last in a series of conflicting court decisions dating back to the Civil War. Between 1895 and 1909, when the amendment was passed by Congress, the Court began to back down on its position, as it became clear not only to accountants but to everyone that the solvency of the nation was in jeopardy. In a series of cases, the definition of "direct tax" was modified, bent, twisted, and coaxed to allow more taxation efforts that approached an income tax.

    Finally, with the ratification of the 16th Amendment, any doubt was removed. The text of the Amendment makes it clear that though the categories of direct and indirect taxation still exist, any determination that income tax is a direct tax will be irrelevant, because taxes on incomes, from salary or from real estate, are explicitly to be treated as indirect. The Congress passed the Amendment on July 12, 1909, and it was ratified on February 3, 1913 (1,302 days).

  •  since if you have two attorneys you get three (0+ / 0-)

    opinions, my legal two cents.

    I think it at the end of the day is Constitutional but I don't think it is as simple as saying "General Welfare Clause" as a mantra.

    There fairly IS a danger of invoking GWC every time you want to authorize the government to do something. I'd also quibble with the idea of "where does the Constitution forbid."

    The Constitution by default forbids the Government with a big G from doing anything, EXCEPT for what it specifically delineates that it can do.

    Granted, those exceptions darn near swallow the rule, and in this case because of the wide open door the Founders installed, it fairly includes health care as well.

    But I just think a more detailed analysis of why it is Constitutional would involve something more than merely invoking the GWC. As has been noted above, analogizing it to other areas where we've found government power Constitutional is probably the best way.

    •  the reasons that I don't cite any case law (0+ / 0-)

      is because the answer was aimed at folks like that lady that was screaming at Arlen Specter. If you provided case law and analogies to her and people of her ilk, that would say that the case law was an example of judicial activism and that your analogy is also unconstitutional.

      See! This is why I love you guys, there's some serious critical thinking going on here.

      •  No, that's a swing and a miss (0+ / 0-)

        Like qazplm stated, you need to make a better case than the Greater Welfare clause. If there is case law that leads to the Constitutionality of Health Care reform being unquestionable, it should be presented. Otherwise, as I said earlier, this is about as good as the truncated version of the Second Amendment when it comes to Constitutional analysis.

        Not a Democrat, nor a Republican. This libertarian is a free-thinker.

        by emn316 on Wed Aug 12, 2009 at 10:58:27 PM PDT

        [ Parent ]

  •  The Public Option & Sovereign Immunity (0+ / 0-)

    I have a question that I haven't been able to get fully answered.

    I have private insurance, and my claim is denied, I can sue the insurance company (after all other remedies are exhausted).

    If I am under a government option plan, will I have the same redress?  Do any of the bills currently in congress waive the US Govt's Sovereign Immunity in this respect?

    I am that gadfly which God has attached to the state, and all day long and in all places...arousing and persuading and reproaching you.-Socrates

    by The Navigator on Wed Aug 12, 2009 at 04:46:25 PM PDT

    •  Re: Public Option & Sovereign Immunity (0+ / 0-)

      Looking at the process of challenging a decision from other executive branch agencies is illustrative, such as the IRS, Social Security Administration, INS, EPA, FDA, etc.

      Before anything, you have to exhaust all available remedies that you have within the agency. Each of these agencies have fairly extensive procedures for appeals and dispute resolutions, including actual trials before administrative judges.

      If you get an adverse decision and have exhausted all administrative remedies, there is at least one avenue, and possibly another. The first is judicial review under the Administrative Procedures Act, where you don't actually sue the agency, you seek judicial review and reversal of the agency's decision. In some cases, Congress has also allowed for filing a lawsuit against the agency for a court order directing the agency to grant whatever it was you were seeking.

      So to answer your question, you would have redress, but, it would not be like a medical malpractice suit.

      Also, when you bring a lawsuit against your health insurance company, the lawsuit is for breach of contract, not medical malpractice, and you are awarded the cost of the treatment, not the medical injury resulting from the denial of the claim.

      •  Yes (0+ / 0-)

        So to answer your question, you would have redress, but, it would not be like a medical malpractice suit.

        Also, when you bring a lawsuit against your health insurance company, the lawsuit is for breach of contract, not medical malpractice, and you are awarded the cost of the treatment, not the medical injury resulting from the denial of the claim

        I understand all that, and obviously, as I stated in my original post, any such suit would be with regard for DENIAL OF THE CLAIM.  Not malpractice.  In that case, obviously I'd just sue the Doctor and her insurance company.

        You answer tells me what would happen under, for example, Medicare as it exists now, but does not address whether any bill currently in congress would waive the Government's immunity in this case. In any event, I believe that administrative review and appeal is all that would be allowed under any government plan.

        I am that gadfly which God has attached to the state, and all day long and in all places...arousing and persuading and reproaching you.-Socrates

        by The Navigator on Wed Aug 12, 2009 at 10:54:24 PM PDT

        [ Parent ]

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