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Before proceeding to read this diary, do me a favor.  Google the following phrase: "health care mandate unconstitutional."  I'll wait...

OK.  Notice anything about what came up as links? If you were paying attention, you'll notice the Federalist Society, the Heritage Foundation, are other like-minded conservative organizations pushing the talking point that the mandate in the health care bill is somehow unconstitutional.

Why do I bring this up? Because that argument is now being promoted in the progressive blogosphere after what appears to be the death of a public option in the Senate bill.  I've seen it posted several times here, even seen prominent Federalist Society links posted with approval.

The problem is...the argument is dead wrong.

First, let's point out the obvious fallacy with those who seemingly NOW think the mandate is unconstitutional.  The argument goes something like this: the government can't make me contract with a private company.  Keep in mind, however, that the "mandate is unconstitutional" argument has nothing to do with whether you contract with an insurance company or not.  It has EVERYTHING to do with whether you should buy ANY insurance AT ALL...and that includes a government run public option.  Even if the public option were included in the bill passed by Congress, it wouldn't change the "mandate is unconstitutional" meme one iota.

The simple fact is that the power of Congress to impose an individual mandate rests first in the Commerce Clause and second in the authority of Congress to tax and spend.  With respect to the Commerce Clause, the point is simple: health insurance and health care certainly fall within the economic activity that Congress can regulate under the Commerce Clause.  The flawed argument being promoted by conservatives is that Supreme Court decisions in Lopez and Morrison restrict Congress' ability to regulate pursuant to the Commerce Clause. This ignores, however, that those cases were about non-economic activity and noone seriously disputes that health care insurance, spending, etc., is certainly economic activity.

With respect to the second point on the taxing authority of Congress to impose a mandate, David Orentlicher says it better than I do:

To be sure, if Congress passed a law whose only provision entailed a mandate for individuals to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise. Imagine a criminal law that required people to buy an American-made automobile to bolster the domestic car industry. But that is not the kind of mandate Congress is contemplating. Rather, the House and Senate approach will readily fall within their taxing and commerce clause authority.

It's that simple.  Congress will impose a tax on everyone vis a vis health insurance.  You fill out your tax form.  If you have employer provided health insurance, or purchased health insurance through the exchange, you are exempt from the tax.  If not...you're not.

If you want a further, better, more detailed analysis of the constitutionality of the individual mandate, check out Professor Mark Hall's extensive study on the issue for the Georgetown School of Law's O'Neill Institute on Health Policy.  It explains it in far more detail than I do.

I have not gotten into the all the details primarly because I don't have time.  But I post this diary to make a simple point:

When conservative talking points with no basis start getting parroted in this community with no critical analysis whatsoever, we've lost something.

There is NO doubt in my mind that the conservatives would STILL be making the "unconstitutional" argument even if there were NO mandate.  Hell, we've heard that refrain on an even more simplistic level from the Teabaggers from Day 1.  Essentially, if you believe it is unconstitutional, then you believe that Congress cannot regulate health care one iota. Period. End of discussion.  You might as well abolish Medicare and Medicaid while we are at it.

It is this type of argument, when seen here, that leads me to throw my hands up in this "debate."  Argue on whether you think mandates are a good idea (for the record, I've never liked them).  But don't argue the Constitution on this point unless you are armed with the analysis and the facts.

Otherwise, frankly, you will sound like a Teabagger with an armchair understanding of the Constitution.

Originally posted to wmtriallawyer on Thu Dec 17, 2009 at 08:34 AM PST.

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Comment Preferences

  •  My frustration... (146+ / 0-)
    Recommended by:
    fladem, itsbenj, Politburo, Timaeus, askew, AlanF, Adam B, burrow owl, Turtle Bay, Raybin, Superribbie, mem from somerville, savvyspy, dengre, TomK002, bumblebums, sardonyx, missLotus, profmatt, ask, Time Waits for no Woman, shanikka, otto, JPhurst, BruinKid, itskevin, Cedwyn, Chrisfs, wader, ManhattanMan, elmo, grannyhelen, Nina, defluxion10, beachmom, Mikecan1978, bay of arizona, Crazycab214, Simian, greatferm, PBen, PsychoSavannah, andgarden, Luetta, trinityfly, LABobsterofAnaheim, Overseas, Cory Bantic, roubs, kathny, begone, BachFan, KenBee, dedmonds, DJShay, bleeding heart, soccergrandmom, TooFolkGR, agent, kurt, lynneinfla, Nulwee, Aaa T Tudeattack, ccyd, dotsright, aravir, yoduuuh do or do not, Jimdotz, anagram, DWG, gatorbot, malharden, second gen, vbdietz, millwood, leonard145b, Azubia, MKinTN, ChocolateChris, ShadowSD, NotGeorgeWill, Same As It Ever Was, Greasy Grant, pamelabrown, mofembot, temptxan, dont think, statsone, Wordsinthewind, satanicpanic, 1BQ, Carol in San Antonio, RandomActsOfReason, pvlb, velvet blasphemy, Daily Activist, zbbrox, chrswlf, zizi, sanglug, Deoliver47, Green Karma, RoCali, Abelian, Muzikal203, Little Flower, D Wreck, sherijr, jfromga, mahakali overdrive, NCrissieB, Borg Warner, Norbrook, seesmithrun, jsfox, Alec82, KroneckerD, p gorden lippy, amk for obama, superheed, fidellio, LeanneB, ribletsonthepan, sullivanst, Cure7802, nickrud, washunate, cocinero, Rockpopple, agito, Amayi, Eclectablog, itzik shpitzik, Escamillo, dukelawguy, BarackStarObama, merrily1000, MPociask, lizard people, IL JimP, Empty Vessel, littlebird33, randomfacts, Dbug, CalliopeIrjaPearl, DanielMorgan

    comes from seeing Constitutional law professors on our side getting ripped by some merely for pointing out the obvious.

    Be angry at the mandate if you want. But stick to reality, not fallacy.

    When you get too big a majority, you're immediately in trouble. -- Sam Rayburn

    by wmtriallawyer on Thu Dec 17, 2009 at 08:34:25 AM PST

    •  If it's not unconstitutional, it ought to be (27+ / 0-)

      That's all I have to say about that.

      Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

      by kyril on Thu Dec 17, 2009 at 08:38:58 AM PST

      [ Parent ]

      •  Fine, but don't confuse your ideal world for this (57+ / 0-)

        world.  You should also be cognizant that constitutional theory that would find the mandate unconstitutional would also entail holding unconstitutional all sorts of progressive legislation.  The righty teabaggers are certainly aware of that, and the lefty teabaggers need to realize it, too.

        Revolutionary Road was an awful, awful film.

        by burrow owl on Thu Dec 17, 2009 at 08:41:43 AM PST

        [ Parent ]

        •  lol - I oppose the mandate w/out a public option (28+ / 0-)

          that does not make me a teabagger.

          Mandates are constitutional - I certainly don't want to change the mandate requiring children to go to school - but without a public safety net to fall back on in case the private insurers fall through, or abuse consumers, a mandate is immoral.

          Not unconstitutional, but immoral.

          I understand the difference.

          "The revolution's just an ethical haircut away..." Billy Bragg

          by grannyhelen on Thu Dec 17, 2009 at 09:11:51 AM PST

          [ Parent ]

          •  Yes you are (1+ / 0-)
            Recommended by:
            Overseas

            to this group at least.  Wanna buy a flag?  

            Democrats have the electrolytes we need!

            by Nada Lemming on Thu Dec 17, 2009 at 09:23:05 AM PST

            [ Parent ]

          •  That's right, this mandate is immoral (16+ / 0-)

            it's unpopular because it has low cost containments and not enough benefits to make it worthwhile. It is an immoral mandate, this particular mandate.

            Mandates, of course, are not unconstitutional, even this one.

            But this one is bad policy, and as a consequence, is bad politics, in that it would seem like the teabagger vision of liberalism run amuck with big Government bleeding people without delivering needed social services in return.

            "Even if you are a minority of one, the truth is the truth." - Gandhi

            by mahakali overdrive on Thu Dec 17, 2009 at 09:28:47 AM PST

            [ Parent ]

            •  It's politically suicidal (14+ / 0-)

              There are those who will consciously engage in civil disobedience about it.  Most of them will likely be teabaggers, but KO threatened to do so last night.

              There's this apparent fallacy in the WH and the Senate that most people are generaly happy w/ their current coverage.  There's an even bigger fallacy that people who don't buy the s**t the carriers are selling won't mind Uncle Sam ordering them to do so*.  The biggest fallacy of all is that middle class voters straining to pay higher premiums for worsening coverage will be happy to see their tax $ go to buy coverage for those who can't afford it.

              Mandates w/o a PO will be pure political gift to the GOP in the next 2 election cycles.

              *Young voters, who went heavily for Obama last year, may be especially hard hit there.

              Some men see things as they are and ask why. I dream of things that never were and ask why not?

              by RFK Lives on Thu Dec 17, 2009 at 09:37:01 AM PST

              [ Parent ]

              •  It is so that most people are satisfied (1+ / 0-)
                Recommended by:
                mbc

                with their current insurance--something like 70 percent, I believe.  I contend that this is because most people have not been struck with a serious, expensive, medical condition.  I wonder how many who have needed extraordinary support are happy with their insurance companies.

                The appeal to people being happy is, imho, an appeal to ignorance.  Most people don't realize just how unresponsive their insurance is because they haven't needed a liver transplant.

                FDR: I welcome their hatred. Obama: I welcome their advice.

                by geomoo on Thu Dec 17, 2009 at 10:27:44 AM PST

                [ Parent ]

                •  You may be referring to 70% (3+ / 0-)
                  Recommended by:
                  neroden, geomoo, mahakali overdrive

                  of the people who HAVE insurance...that is not 70% of the people overall.  There are 100% of the un-insured who are not happy with their 'insurance'.

                  And I totally agree with your point...people are quite happy with their insurance until they are not...when they become unhappy is when they are 'insured but not covered'.

                •  I'm chronically ill, (2+ / 0-)
                  Recommended by:
                  Jim P, mahakali overdrive

                  and I have Aetna. I'm happy with their coverage, but the again my father works indirectly for the state. Our coverage is great. Illness is a big part of the merited disdain for insurance companies, but so is having lackluster coverage. Too few have too little and they, like my father, work respectable jobs.

                  It depends on your health, yes, but it also depends on where you get your insurance coverage from and how much bargaining power that entity has.

                  They certainly give very strange names to diseases.

                  by CalliopeIrjaPearl on Thu Dec 17, 2009 at 11:07:00 AM PST

                  [ Parent ]

                  •  Yes, it depends on coverage, and (1+ / 0-)
                    Recommended by:
                    mahakali overdrive

                    it depends on the illness, or so I surmise.  When my brother-in-law suddenly became seriously ill, his very complete coverage worked very well, but only up to a point.  When expenses threatened to move to an even higher level, that's when we found out about loopholes and delay tactics.  Perhaps it just depends on where any one particular company draws the line.

                    I'm so glad that you are being taken care of well.

                    FDR: I welcome their hatred. Obama: I welcome their advice.

                    by geomoo on Thu Dec 17, 2009 at 11:16:12 AM PST

                    [ Parent ]

                •  And (2+ / 0-)

                  they don't even pay for 50% of the cost! Make people pay for insurance and we'll see how much they love the current system

                  If I owned a company that would be my holiday gift to the tea baggers. I'd cut payments on all employee plans.

                  I'd send a memo quoting Ayn Rand saying you all have the freedom to live your free market wet dreams with your pals in the insurance industry this year. Don't all thank me at once and good luck!

                  That's the saddest part of this whole thing. We have become a nation of greedy parasites. Everyone wants something for nothing. We want public options but not the cost. We want "someone" to deal with global warming but no one will even pay $10 to see it happen. We want good schools but not the tax levy.

                  Its why I never disputed this is a center-right nation. Conservatism is basically a rationalization of the selfishness than is packaged as "The American Dream".

              •  I Don't Know Anybody Happy with Coverage (4+ / 0-)
                Recommended by:
                lysias, neroden, kyril, mahakali overdrive

                I don't know where the get these numbers from. Everybody I know who needs anything beyond a routine check-up is unhappy with their coverage. The real problem is that they ask everybody if they are happy, rather then just asking those who have acutally tried to use their coverage if they are happy. All of those healthy young people with employee or parental provided coverage who have never ever use it are very happy. All of the people with medical issues or sickly dependents - not so much.

                I buy my own coverage and last year it went so high we thought we would have to go uninsurred. Luckly we are healthy and were able to find a more affordable plan althought the deductable and maximum year out of pocket exspence may require us to borrow against our house to meet them if we ever have a serious illness. It only covers physicals and then nothing else until we hit $60000 at which point we sill have to pay 30% of our bills until we hit $10,000 for the year. Meaning if anybody gets hopitized it will be a very bad year for us - but that is what passes for insurance in America. You get sick and if you have insurance and are lucky you get to live and not loose your house.

              •  Time for the white flag (2+ / 0-)
                Recommended by:
                lysias, PsychoSavannah

                The best approach would be for the administration to push a progressive plan that has no chance at passage.

                When it fails they should bag even trying for HCR. The GOP has them boxed in on it at this point. The GOP won and now its time to figure out how to surrender with as little damage a possible.

                By pushing the liberal plan they can say they tried. There is zero chance of it passing. When its DOA the Administration can claim they went with the base and were soundly defeated.

                Obama was stupid to not go for the political solution upfront. Instead he actually thought he could compromise and actually pass a bill. That may have worked 30 years ago but the far extremes of both parties hate any compromise. If you need 51 votes you might have a shot but with the filibuster that isn't going to happen.

                The best part is everyone that is saying this bill is worse than armaggedon gets to experience even worse coverage for the next couple of decades. So that will really be something to celebrate.

                At least I'll get to vote for anti-gay marriage ammendments and other pressing national issues once the GOP take control.

            •  I disagree and would resort to violence if needed (1+ / 0-)
              Recommended by:
              EthrDemon

              If, say, the government came by and told me I WILL buy a car next month.  Period.  I would respond thus:

              "No.  I wont."  The government then tries to force me to do so.  I respond violently as is right and proper for ANYONE seeking to stop creeping fascism.

              The mandate is unacceptable to the nth degree.  In the current form it IS fascism.  Fascism is to be resisted by any and ALL means necessary.

              There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

              by praedor on Thu Dec 17, 2009 at 11:08:51 AM PST

              [ Parent ]

              •  how are you any different (1+ / 0-)
                Recommended by:
                mahakali overdrive

                from the teabaggers threatening violence?

                •  Sometimes (0+ / 0-)

                  Violence is right.  Or do you hate our Revolutionary Founders too?  Are they tea baggers?  Oh yeah, THEY ARE (Boston Tea Party anyone?).

                  When the government no longer serves the best interests of the people, it is their right and responsibility to tear it down (paraphrasing Jefferson).

                  Tree of liberty and blood of patriots and tyrants comes to mind too.  But to you and your ilk, it is NEVER the right thing to do so if YOU had been in charge back when, we'd STILL be a colony of Britain.  You know, because violence is NEVER EVER the answer even when it is.

                  Now having said that...it is MOSTLY hyperbole.  But...the government CANNOT keep chipping away at our rights and our standard of living while building up the standard of living for an already rich elite few.  Bush did this horrifically and now Obama has doubled down.  HE gave OUR trillions to the banking elite, NOT Bush, and HE is trying like hell to ensure a permanent backstop to Goldman-Sachs and similar criminal organizations as part of his "financial reform" fuckery.  Same kind of fuckery as HIS healthcare "reform" fuckery that enriches his buttbuddies in big pharma and big insurance.

                  All you need to know is Rahm is there ready to go down on Obama to secure more of the same to know where Obama's priorities lay (at the back of Rahm's throat).

                  There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

                  by praedor on Thu Dec 17, 2009 at 12:36:57 PM PST

                  [ Parent ]

                  •  you have access to the ballot box (0+ / 0-)

                    the colonists didn't. That's a pretty big difference, don't you think?

                    You and the teabaggers are advocating the violent overthrow of a democratically elected government. Sorry, but you and they are whackos, not patriots.

                    •  Really? (0+ / 0-)

                      The 2001 election was "democratic"?  I seem to recall 5 old farts in some totally discredited government institution selected the President with the fewest "democratic" votes as the winner.

                      I seem to recall that the second term for this same appointed President was itself corrupted by bogus "democratic" votes but the opposition candidate, AGAIN, failed to do anything to examine this.

                      I seem to recall a government that ignores the clear desires of the populace, both under Bush and under Obama, and not only expands wars and plans for new ones, but also ignores their clear wishes on healthcare, domestic spying, defies clear federal laws, etc.  This "democratic" government also defied the HUGELY clear wishes of the populace and gave THEIR money to billionaires in the finance industry while all the while (and even now) undermining working citizens livelihoods, quality of life, and standard of living.

                      "Democratic" governments don't ignore the people that OWN the government.  They don't fellate corporations at the expense, and against the wishes, of the People.

                      There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

                      by praedor on Sat Dec 19, 2009 at 07:12:49 AM PST

                      [ Parent ]

          •  I agree, Granny. Immoral and ... (0+ / 0-)

            unconscionable.  And, I think it sucks.  

          •  But the vast number of schools are Public not (0+ / 0-)

            Private and even then people are not forced to send there children to School as long as they can provide adequate Home Schooling.

        •  Calling it unconstitutional is not ok... (10+ / 0-)

          But coining the term "lefty teabaggers" is?

          How about "scourge of progress and enemy of the people centrists?"

          Would that be ok?

          Slap happy is a platform.

          by averageyoungman on Thu Dec 17, 2009 at 09:26:48 AM PST

          [ Parent ]

          •  Given the spate of "we should join the (5+ / 0-)

            teabaggers and revolt" nonsense that's shown up lately, I think the term just takes them at their word.

            Revolutionary Road was an awful, awful film.

            by burrow owl on Thu Dec 17, 2009 at 09:38:33 AM PST

            [ Parent ]

            •  Yeah, nebulous legalese and constitutional... (6+ / 0-)

              Theories are still a double standard, and your characterization - IMHO - does a disservice to people who, through simple logic and deductive reasoning, can tell without the need to obfuscate that the bill as it stands with mandates intact is completely, utterly fucked.

              It always kills me how the tools of the attorney - not referring to you - simply become more and more complex in the face of plain, irrefutable logic. The people know the score. It's about equity and effectiveness, not the existence of some rabble wrapped up in your derogatory term.

              So, who gives a shit whether it's unconstitutional, when clearly, without an equalizing alternative or some other balancing force, it's fucking nuts?

              And while I personally just don't know whether it's unconstitutional or not, it seems highly likely to me that there is more than one court that would find this abominably bad, considering the argument herein does not put it to rest.

              Lawyers can continue their circle jerk and backpedaling obfuscation, but it's not going to stop people from understanding what's going on.

              Slap happy is a platform.

              by averageyoungman on Thu Dec 17, 2009 at 09:50:13 AM PST

              [ Parent ]

            •  The enemy of my enemy (0+ / 0-)

              is my friend.

              If making common cause with tea baggers gets the mandate ripped to shreds AND the careers of numerous DLC senators terminated in 2010 and ensures Obama's defeat in 2012, then I will make common cause with them to this end.

              After they have served their purpose, they are no longer my friend.

              There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

              by praedor on Thu Dec 17, 2009 at 11:11:21 AM PST

              [ Parent ]

            •  Help? Nah. (0+ / 0-)

              But when they start talking about secession, I'll help them pack their bags.

              There is no goal in the "War on Drugs" that couldn't be more effectively met by legalization & regulation.

              by EthrDemon on Thu Dec 17, 2009 at 11:14:55 AM PST

              [ Parent ]

          •  If the shoe fits... (1+ / 0-)
            Recommended by:
            elmo

            "Lefty teabaggers" is appropriate when lefties stupidly adopt the stupid arguments of the righty teabaggers.  But if you don't like it, how about just lumping lefties who claim the mandate is unconstitutional in with the righties who make that claim?  We already have a derogatory name for them:  Tenthers.

            We are the ones we've been waiting for. We are the change that we seek.

            by Simian on Thu Dec 17, 2009 at 10:25:05 AM PST

            [ Parent ]

            •  Read my additional comment... (1+ / 0-)
              Recommended by:
              praedor

              Here.

              The idea that since only a small proportion of a community believes something says little about whether it may be true.

              Funny thing about all the people warning about the President and the implications of his actions from the beginning - some may not always articulate themselves as well as possible - of which all are guilty at times - and they may not have a command of constitutional law but, in spite of all that, they've been about 90% right.

              The fact is, we don't know if it's constitutional or not, but we do know that it's an undeniable disaster.

              Teabaggers, indeed?

              Slap happy is a platform.

              by averageyoungman on Thu Dec 17, 2009 at 10:42:03 AM PST

              [ Parent ]

              •  I, too, have been warning against the mandate. (0+ / 0-)

                A person who claims the mandate is unconstitutional

                Moreover, those who do so are buying into the central meme of the right wing. Sorry if you feel offended when someone points out the sheer ignorance and folly of such a claim.

                Your lawyers' circle-jerk comment comes from the same kind of thinking. Get it through your head: you don't have to buy into wingnut theories of government to be against the mandate. More importantly, you shouldn't.

                Until we on the left start re-framing policy debates on our own terms, we will always lose. See thereisnospoon's diary from yesterday for an eloquent explanation of this point.

                We are the ones we've been waiting for. We are the change that we seek.

                by Simian on Thu Dec 17, 2009 at 11:42:40 AM PST

                [ Parent ]

                •  You're on a tangent (1+ / 0-)
                  Recommended by:
                  Simian

                  And I quite honestly don't understand your comment.

                  Go right ahead and lionize Frank Luntz if you like, his track record since 200 has been in the dumpster, and an obsession with framing will get you jack shit unless the people you're trying to feed are buying. See: "insurance reform."

                  The idea that the interpretation of the law is exclusive to the right wing is ludicrous, and the idea that the mandate might not be constitutional isn't a central theme of their arguments against reform. Rather, that would be socialism, which would not entail a mandate, but rather a public service.

                  Slap happy is a platform.

                  by averageyoungman on Thu Dec 17, 2009 at 12:12:31 PM PST

                  [ Parent ]

                  •  The RW's claim that most federal govt. (1+ / 0-)
                    Recommended by:
                    averageyoungman

                    regulations are illegitimate because the 10th Amendment reserves power to the states is central to most of their attacks on progressive legislation. They used that argument against the New Deal, civil rights legislation, environmental legislation, the Endangered Species Act, the minimum wage, social security, Medicare, the list goes on and on. Most of the foregoing were also attacked as socialism.

                    They've had nutbags at every health care rally I've attended passing out flyers and giving speeches about the 10th Amendment. Health care reform's alleged unconstitutionality is just a tool to fight against its supposed socialism.

                    I'm not suggesting that interpretation of the law is exclusive to the right wing. I'm suggesting that the right-wing interpretation of the Tenth Amendment ought not to be embraced by people on the left in their rush to find something wrong with the mandate. The mandate is bad policy and bad politics for Democrats. But it is not unconstitutional.

                    We are the ones we've been waiting for. We are the change that we seek.

                    by Simian on Thu Dec 17, 2009 at 02:43:59 PM PST

                    [ Parent ]

                    •  It is not central to the Republican argument... (0+ / 0-)

                      Because it is central to their need to be tied to business.

                      The big problem with what you're saying - IMO - is that people like their social programs, and that's why it has been nigh impossible for them to chip away at any of what you've listed, and another reason they and their benefactors fight so hard against reform - if people like the program, there's nothing they can do about it, so there is no danger in making this argument in any real sense. The political pendulum swings to broadly for any one party to swing that far. For god's sake, we're seeing anti choice amendments closer to passage in this administration than Republicans dared bring up during Bush!

                      And if the government should see fit to mandate private expenditures without an equalizing force, people should be free to sue and argue on those grounds.

                      Slap happy is a platform.

                      by averageyoungman on Thu Dec 17, 2009 at 03:31:27 PM PST

                      [ Parent ]

        •  When do leftists call for the government (8+ / 0-)

          to mandate collection of money for every citizen who cannot receive a subsidy, direct that it be paid to private enterprises, but claim that it's not a tax?

          What you say sounds evenhanded, and there is certainly cause for some evenhandedness these days, but I do not see that "all sorts of progressive legislation" would have to be held unconstitutional by a holding that doing what I describe above exceeds Congress's Commerce Clause authority because it mandates that citizens engage in commerce rather than regulating existing engagement in commerce.

          •  Wrong. (3+ / 0-)
            Recommended by:
            Adam B, sherijr, CalliopeIrjaPearl

            The mandate is a misnomer.  It doesn't require purchase of insurance. It taxes those who don't purchase. The reason such a tax is justifiable should be self-evident, as those who are not insured are most likely to be free-riders on the rest of society by using emergency services that they can't pay for. Such a tax is well within Congress' authority to regulate interstate commerce.

            We are the ones we've been waiting for. We are the change that we seek.

            by Simian on Thu Dec 17, 2009 at 10:29:54 AM PST

            [ Parent ]

            •  Actually, the "tax" (1+ / 0-)
              Recommended by:
              kyril

              is cheaper than premiums so it is better to pay the "tax".

              Better still is to lie on your tax return about your coverage and not pay the "tax" at all and NOT pay for any insurance company CEO's bonus.

              There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

              by praedor on Thu Dec 17, 2009 at 11:13:40 AM PST

              [ Parent ]

              •  With the new ability to get insurance after (0+ / 0-)

                the fact (thanks to the ban on denial for preexisting conditions), the package, overall, allows you to pay a small tax and remain eligible to buy coverage AFTER you get sick. Sounds good to me...

                We are the ones we've been waiting for. We are the change that we seek.

                by Simian on Thu Dec 17, 2009 at 03:25:37 PM PST

                [ Parent ]

            •  you've made a really big jump here... (0+ / 0-)

              I think it's a really big jump to say:

              those who are not insured are most likely to be free-riders on the rest of society by using emergency services that they can't pay for.

              Do you have any evidence to make that claim? It's probably safe to say that some of those who don't have insurance may use emergency services that they can't pay for, but it may be just as likely that many do not use emergency services or that when they do they pay their bill. I know that when I was younger I did not have insurance—because I could not afford it—but when I needed care I went to a community clinic and I paid my for my services. In any event, it hardly justifies a tax on all.

              And furthermore, when uninsured people use the emergency room and can't pay the bill, the hospital can still charge them for the service—often at unseemly and discriminatory amounts—and can still attempt to collect the amount owed. Many hospitals do this, and the worst of them (e.g.Sutter Health in Northern California) engage in predatory practices like seizing people's homes or other assets when they don't pay.

              The more I think about it, the stranger this tax seems. It would be like having to pay Social Security tax if you didn't have a private 401(k) plan, but you didn't receive Social Security benefits in return for paying the tax...you still had to pay into a 401(k) to have retirement security.

              Work is the curse of the drinking class. -- Oscar Wilde

              by bignoise on Thu Dec 17, 2009 at 12:06:20 PM PST

              [ Parent ]

              •  I don't disagree (0+ / 0-)

                and certainly was not saying that the uninsured include individuals that can and do pay, as well as those who don't get sick.  But the uninsured are the ones most likely to be free riders for the simple reason that they are uninsured.  All else being equal, the uninsured have less resources to throw at a medical emergency, so the statement is pretty much self-authenticating. Moreover, the uninsured tend to be lower income in the first place, so that means that they, as a group, are even more likely to be free riders if they need emergency services.

                The free rider issue is one of the reasons why universal coverage should not actually raise health care costs, because people still get emergency services, but they are paid for by taxes and higher hospital rates. In fact the usual argument is that eliminating free riders lowers overall health care expenditures because preventive care is cheaper than emergency care.

                We are the ones we've been waiting for. We are the change that we seek.

                by Simian on Thu Dec 17, 2009 at 03:22:54 PM PST

                [ Parent ]

        •  Right (2+ / 0-)
          Recommended by:
          kyril, CMYK

          But neither should legislation violate basic human ethics and rights merely because the Framers didn't write language specific to prevention of the particular violation.

          The mandate is wrong, as Obama insisted during the campaign.

          Oh, and those taxes to be paid if you don't pay an insurance company? Aren't they transferred fairly directly as "subsidies" to the insurance companies? Don't know for sure, and money is fungible, but since the bill is trying so hard to be revenue neutral, hasn't it been crafted to transfer this tax revenue directly to the main expense of the bill: the payout to insurers?

          •  This mandate is wrong (3+ / 0-)

            but all mandates are not wrong.

            Do people confuse the term mandate with tax?

            How are they different?

            "Even if you are a minority of one, the truth is the truth." - Gandhi

            by mahakali overdrive on Thu Dec 17, 2009 at 09:12:02 AM PST

            [ Parent ]

            •  Having the mandate penalty (1+ / 0-)
              Recommended by:
              adobedragon

              administered by the IRS makes it very difficult to convince people that it is not a tax.

              The most important way to protect the environment is not to have more than one child.

              by nextstep on Thu Dec 17, 2009 at 09:32:59 AM PST

              [ Parent ]

                •  I don't know (3+ / 0-)
                  Recommended by:
                  Terra Mystica, kyril, agito

                  The IRS appears to either be a middleman or pass through agency directing revenue to insurance companies rather than the treasury, or a government funded private debt enforcer.

                  No snowflake in an avalanche ever feels responsible.

                  by Magster on Thu Dec 17, 2009 at 09:43:46 AM PST

                  [ Parent ]

                  •  no, the money the IRS collects goes to the (5+ / 0-)

                    treasury. It's not paid to any outside organization.

                    •  And if that were the only infirmity, (1+ / 0-)
                      Recommended by:
                      CMYK

                      it would be easy to fix.

                      Ok, so I read the polls.

                      by andgarden on Thu Dec 17, 2009 at 09:53:25 AM PST

                      [ Parent ]

                      •  I'm calling out this lie about the money (4+ / 0-)

                        that's collected by the IRS because someone didn't buy insurance is going to go to the insurance business.

                        It's just another lie, I see so many here. Including right wing memes like the gov can't regulate, the gov is throwing money away, etc. etc. The whiplash is probably nearing infinite levels for some.

                        •  Right... it goes back to the Govt (0+ / 0-)

                          I would presume... to (supposedly) then cover different public health care service costs (I'm unclear where exactly, but I would presume that's where it would logically go... I feel like Alan Grayson cross-examining Bernanke about where 1 trillion in international bailout funds went off to all of a sudden...)

                          So... does anyone know where the tax monies collected from those who chose to not pay for health insurance services would go?

                          "Even if you are a minority of one, the truth is the truth." - Gandhi

                          by mahakali overdrive on Thu Dec 17, 2009 at 10:02:24 AM PST

                          [ Parent ]

                        •  Well then, what about public debt enforcer (2+ / 0-)
                          Recommended by:
                          praedor, CMYK

                          for a private company.

                          It just seems that this is an unprecedented role for the IRS.  Can you think of anything similar?

                          No snowflake in an avalanche ever feels responsible.

                          by Magster on Thu Dec 17, 2009 at 10:05:13 AM PST

                          [ Parent ]

                          •  No. not a debt enforcer at all (2+ / 0-)
                            Recommended by:
                            Adam B, DFH

                            If it was a debt enforcer they'd be sending the money to the insurance company in some way.

                            Think of it as a emergency room deposit.

                          •  in some way (1+ / 0-)
                            Recommended by:
                            PsychoSavannah

                            like subsidies?

                          •  An emergency room deposit?! (0+ / 0-)

                            I would think of it as an emergency room deposit if I were able to deduct the amount of the tax from any bill for emergency services, or if after having not used any emergency services for a period of time, or if after becoming insured, I would have my "deposit" returned to me. But that is not the case with this "tax."

                            Finally, I made this point above, but when an uninsured person uses emergency services they are still charged for those services. And hospitals often engage in discriminatory pricing against uninsured patients and use aggressive collection techniques like garnishing wages, putting liens on a home, etc.Sutter Health in Northern California is an example of one of the worst offenders.

                            I do not think it is like an emergency room deposit at all. What it is like is an extremely regressive tax, having emergency room and indigent care services subsidized by those who are least likely to be able to afford it.

                            Work is the curse of the drinking class. -- Oscar Wilde

                            by bignoise on Thu Dec 17, 2009 at 12:18:52 PM PST

                            [ Parent ]

                          •  The people who are least likely to be able (0+ / 0-)

                            to afford it get huge subsidies or Medicare. The vast majority of people who won't buy insurance wouldn't under any program. This idea of a huge number of people not being able to afford insurance is bogus.

                            http://aspe.hhs.gov/... gives a breakdown by income. 67% of the uninsured are going to get excellent subsidies or no cost at all for insurance. There are some other interesting charts there as well - it's interesting that over half of the uninsured are childless adults although they make up less than half the population.

                          •  If you're trying to make the argument that (0+ / 0-)

                            hospitals don't take a huge loss on uninsured patients you're obviously not reality based.

                          •  Umm, is it necessary to attack me? (1+ / 0-)
                            Recommended by:
                            nickrud

                            Really, I was making a fairly straightforward point in a very respectful way.

                            In any event, I was not arguing anything on behalf of the hospital industry at all. I'm arguing on behalf of the people. I know very well that Emergency Departments are money losers; but I also know that uninsured patients who use them can get screwed, big time. (And I provided a link to a site that backs up that claim by detailing the practices of one of the worst offenders.)

                            I also take issue with a few points you've made here. First, you refer to those who "won't buy insurance." How do you know they haven't tried to buy insurance but have been denied? My uninsured brother is a good example: he wants insurance, he's tried to buy it, he's been denied.

                            Secondly, you say that "it's interesting that over half of the uninsured are childless adults." Yet a very likely reason for this is explained in the same document, which says: "Childless adults who are not disabled or elderly rarely qualify for Medicaid, even at the very lowest income levels." And, as it also clearly explains, it is the poor who are most likely to be uninsured.

                            Finally, the document you linked to gives data from 2004. Between then and now rates have continued to rise dramatically and employers continue to drop coverage at increasing rates. My guess is that the data has changed significantly.

                            Work is the curse of the drinking class. -- Oscar Wilde

                            by bignoise on Thu Dec 17, 2009 at 01:36:53 PM PST

                            [ Parent ]

                          •  sorry, that was uncalled for (0+ / 0-)

                            I'm just a bit out of sorts today and I projected a bit. You're not the first person I've had to apologize to today which is not a good sign.

                            Again, sorry for the pointless ad hominem.

                          •  Now, to the substantive matters (0+ / 0-)

                            There's a certain factor of people who won't purchase insurance - some call them the 'young invincibles'. I don't know anyone that disputes this. I wasn't classifying those like your brother who get denied due to pre-existing conditions or any other reason - those can purchase insurance under the new statutes.

                            The whole point of referencing that report is to show the poor are helped the most by this program - the fact  is the poor are going to be the overwhelming beneficiaries of this legislation - for example, the changes to Medicaid eligibility is stupendous. Nearly everyone making less than 133% of the poverty line will get coverage for free. Single adults included. The state laws that limit coverage to parents of children (or no parents at all) are overridden by federal statute. The subsidies are stupendous for those under 200% of the FPL, the working poor. I've worked with the homeless and near homeless for over 20 years. The changes for those people are where the real benefits are.

                            The people who are most likely to be hurt by this are those at the 300% - 500% FPL. The subsidies for them are low to non-existent, and currently many that don't have coverage from their employers (roughly 14%-7%, by the way http://www.census.gov/... page 21) aren't purchasing insurance. That's the donut hole for health care, not the poor.

              •  The IRS does many things besides collect taxes (2+ / 0-)
                Recommended by:
                PsychoSavannah, neroden

                It enforces the Bank Secrecy Act, among other non-tax responsibilities.

                "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                by Old Left Good Left on Thu Dec 17, 2009 at 10:21:42 AM PST

                [ Parent ]

          •  NO. (0+ / 0-)

            Next question.

            We are the ones we've been waiting for. We are the change that we seek.

            by Simian on Thu Dec 17, 2009 at 10:35:18 AM PST

            [ Parent ]

      •  This nation's laws are standing on a knife's edge (15+ / 0-)

        at the moment. They may not be able to survive the damage from Bush and Clinton, even were President Obama a better advocate.

        If the law becomes meaningless, we won't need health care anyway.

        So the very last thing we should do is be callous with the constitution. We should all aspire to be better civil libertarians, and hold this government to its own contracts.

        (-7.00, -6.21) Jobs, Liberty, Peace.

        by Nulwee on Thu Dec 17, 2009 at 09:00:44 AM PST

        [ Parent ]

        •  You understand (3+ / 0-)
          Recommended by:
          elmo, Simian, sherijr

          that the arguments being made by the right here are complete nonsense.

          To argue that Mandates are unconstitutional is to make an argument with no basis in the law.

          The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

          by fladem on Thu Dec 17, 2009 at 09:37:49 AM PST

          [ Parent ]

          •  Yes. (0+ / 0-)

            (-7.00, -6.21) Jobs, Liberty, Peace.

            by Nulwee on Thu Dec 17, 2009 at 11:01:31 AM PST

            [ Parent ]

          •  But the argument WILL work (1+ / 0-)
            Recommended by:
            kyril

            Just like all lies work well in killing political careers.

            Lies effectively killed Kerry's run for President.  This mandate "lie" is good enough for me because it CAN kill many political careers of many DLC senators (and house reps) who vote in favor of it in its present form.

            That alone is good enough for me.  ANY weapon in a fight is good.

            There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

            by praedor on Thu Dec 17, 2009 at 11:17:09 AM PST

            [ Parent ]

      •  how come nobody was pushing this argument (5+ / 0-)

        when Hillary Clinton was campaigning and as was repeatedly noted, the only difference between her health care proposal and Obama's was that she wanted...wait for it...

        MANDATES?

      •  Sure I'll bite (8+ / 0-)

        It may not be unconstitutional because there is no ban on the takeover of government by corporations EXPLICITY laid out in a dedicated amendment.  But I'm all for seeing if we can challenge this unconstitutionally.  

        If we get a mandate without a public option, I'm with Keith.  I will go to jail rather than pay protectio9n money to my corporate gangster overlords.  

        Democrats have the electrolytes we need!

        by Nada Lemming on Thu Dec 17, 2009 at 09:22:28 AM PST

        [ Parent ]

        •  That's because of antitrust provisions (4+ / 0-)
          Recommended by:
          praedor, trinityfly, Nada Lemming, sprogga

          What I think rankles people, and rightfully so, is being forced to purchase a private product at a high cost for few personal benefits, which due to a lack of antitrust provisions (and other key elements, but antitrust strikes me as the most vital here) feels like you are being forced to support a private monopoly.

          That's notable.

          "Even if you are a minority of one, the truth is the truth." - Gandhi

          by mahakali overdrive on Thu Dec 17, 2009 at 09:31:55 AM PST

          [ Parent ]

        •  We are a nation of laws (0+ / 0-)

          and this law, however distasteful, would be constitutional.  So, if you are willing to go to jail, so be it, because that is precisely what is going to happen.

          I don't like the mandate (at least not without cost containment), but it is what it is.  If I were a US Attorney, I'd send you to jail in a heartbeat, because the reality is that if we can pick and choose what laws we follow, society breaks down.  If you are willing to go to jail to follow your convictions, I can admire that. But that is an individual choice.

          The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

          by TomK002 on Thu Dec 17, 2009 at 09:36:42 AM PST

          [ Parent ]

          •  Chortle (5+ / 0-)

            because the reality is that if we can pick and choose what laws we follow, society breaks down.

            You made a funny.  Thanks for making my day!  

            Democrats have the electrolytes we need!

            by Nada Lemming on Thu Dec 17, 2009 at 09:41:38 AM PST

            [ Parent ]

            •  Really? (2+ / 0-)
              Recommended by:
              praedor, Deoliver47

              I'd recommend looking up the definition of the word "anarchy."

              The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

              by TomK002 on Thu Dec 17, 2009 at 09:45:27 AM PST

              [ Parent ]

              •  Anarchy (9+ / 0-)

                We are moving Gitmo to Illinois, lock stock and barrel, preventive detention, show trials, and even the newly minted post acquittal detention concept.  We are defending John Freaking Yoo.  

                We are protecting war criminals so they won't be embarrased on the Daily Show, and leaving Don Seigleman in jail for doing what every politician does.    

                But we are a nation of laws.  

                Apparently only when it involves not paying your tribute to the gangsters at United Health or when getting a blowjob from an intern.  

                But thanks for setting that up.  

                Democrats have the electrolytes we need!

                by Nada Lemming on Thu Dec 17, 2009 at 09:52:47 AM PST

                [ Parent ]

                •  Question: What laws are we allowed to ignore? (2+ / 0-)
                  Recommended by:
                  Adam B, Deoliver47

                  Really? I'd love to know. I'm betting you won't say "all of them," so the question becomes, "which ones can we ignore?"

                  And it seems to me that just because there are people out there who do make a mockery of the system, that does not mean that we should just say "fuck it, forget the notion of laws all together"

                  The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                  by TomK002 on Thu Dec 17, 2009 at 09:54:48 AM PST

                  [ Parent ]

                  •  All I ask is (4+ / 0-)
                    Recommended by:
                    praedor, Heterodoxie, TrahmalG, CMYK

                    that when I refuse to pay my tribute, the justice department prefers to look forward, not backward.  

                    Democrats have the electrolytes we need!

                    by Nada Lemming on Thu Dec 17, 2009 at 10:01:20 AM PST

                    [ Parent ]

                    •  What does that even mean? (1+ / 0-)
                      Recommended by:
                      Deoliver47

                      Plus, you conveniently ignored my question.

                      The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                      by TomK002 on Thu Dec 17, 2009 at 10:07:46 AM PST

                      [ Parent ]

                      •  Your question is mockable (3+ / 0-)
                        Recommended by:
                        praedor, Heterodoxie, CMYK

                        Because as I showed above, we're already not a nation of laws.  If they can look forward, not backward, for war crimes, why not for tax evasion?  At least that would be consistent anarchy.  

                        Democrats have the electrolytes we need!

                        by Nada Lemming on Thu Dec 17, 2009 at 10:16:54 AM PST

                        [ Parent ]

                        •  So I guess you'd be ok with neo-nazis (1+ / 0-)
                          Recommended by:
                          Deoliver47

                          going out and killing a bunch of gays and jews, because, hell, we're not a nation of laws?  Or at least ok to the point where there should be no criminal sanction imposed by the government? You seem to be saying, "fuck, because these other problems exist, lets just tear down the whole fucking system."

                          The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                          by TomK002 on Thu Dec 17, 2009 at 10:21:40 AM PST

                          [ Parent ]

                          •  All or nothing? (3+ / 0-)

                            You really need to fine tune your arguement better than the rigid dichotomous thinking.  Life is not black and white.  You do not go from all laws being respected to anarchy.

                          •  the argument Nada Lemming made (1+ / 0-)
                            Recommended by:
                            Deoliver47

                            was basically that the system was already gone and should be torn down, and didn't really answer my anarchy charge. So it this case, I think my argument is apt.

                            But again, I ask an open question: How do we choose what laws we can ignore?

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:28:44 AM PST

                            [ Parent ]

                          •  How do we choose what laws we can ignore? (1+ / 0-)
                            Recommended by:
                            Nada Lemming

                            With courage and conviction of conscience.  How do you choose?

                          •  we do it everyday (0+ / 0-)

                            I would bet you have broken laws this week.  

                            (regarding the bank mess) They want to cure the patient but not deal with the disease.

                            by dark daze on Thu Dec 17, 2009 at 11:32:27 AM PST

                            [ Parent ]

                          •  Mistaken (4+ / 0-)
                            Recommended by:
                            kyril, mahakali overdrive, TrahmalG, CMYK

                            again.

                             the argument Nada Lemming made (0+ / 0-)

                            was basically that the system was already gone and should be torn down, and didn't really answer my anarchy charge.

                            I didn't advocate for any such thing.  I stated that it was already anarchy based on your own definition.

                            I just meant that since it's OK for Cheney to go free, I think the justice department should look the other way for me too. Under the equal protection clause.  That's fair, under our new rules, right?  

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 10:36:24 AM PST

                            [ Parent ]

                          •  Then why shouldn't the DOJ look the other way (0+ / 0-)

                            for everyone?  Why are you special?  I mean, skinheads are fucked up beyond belief, but I'd bet 99% of them believe the bullshit they spew. So if they go out and beat up a gay guy or a Jew, why should the DOJ go after them and not look the other way?

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:43:14 AM PST

                            [ Parent ]

                          •  I am (6+ / 0-)

                            at least as special as Richard Bruce Cheney.  You're not tracking with me are you?  

                            We achieve anarchy by having a multitiered justice system in the first place.  You made a true statement: Society breaks down when laws aren't applied to all.  Do you begin so see my point?    This is exactly why the American revolution was fought.  Tyranny.  

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 10:56:16 AM PST

                            [ Parent ]

                          •  Can I steal your car? (1+ / 0-)
                            Recommended by:
                            Deoliver47

                            I mean, if you are arguing that the authorities should look the other way, you clearly don't think I should face any criminal sanction if I were to steal your car.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 11:10:02 AM PST

                            [ Parent ]

                          •  Go ahead and try (0+ / 0-)

                            and since we don't have a justice system I can rely on to apply the laws to everyone, I'd have to take the matter into my own hands.  

                            You can't just put humpty dumpty back together again by starting with applying the laws to ME.    

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 11:34:46 AM PST

                            [ Parent ]

                          •  You really aren't getting it. (0+ / 0-)

                            "Progress is impossible without change, and those who cannot change their minds cannot change anything."

                            by TrahmalG on Thu Dec 17, 2009 at 11:49:55 AM PST

                            [ Parent ]

                          •  Somebody already stole the car and got away. (1+ / 0-)
                            Recommended by:
                            Nada Lemming

                            "Progress is impossible without change, and those who cannot change their minds cannot change anything."

                            by TrahmalG on Thu Dec 17, 2009 at 11:50:33 AM PST

                            [ Parent ]

                          •  No, I'm pretty sure I get it (0+ / 0-)

                            The argument is that because the government is, in a few instances, failing to respect the rule of law, you and others are entitled to fail to respect it when you have a problem with the laws that are passed.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 11:51:21 AM PST

                            [ Parent ]

                          •  A few? I think more than a few instances. (1+ / 0-)
                            Recommended by:
                            Nada Lemming

                            Some people will have to choose between rent or premiums, food or premiums.

                            So if I pay my rent and buy food for my kids I get fined $750 I probably won't even have. Then what, jail?

                            And this would be the only one I seriously have a problem with. Public option or not, don't pass a law that basically fattens the pockets of CEOs.

                            It's really that simple. Forcing people to give up hard earned money to something that is actually destroying them is unbelievable.

                            "Progress is impossible without change, and those who cannot change their minds cannot change anything."

                            by TrahmalG on Thu Dec 17, 2009 at 04:33:21 PM PST

                            [ Parent ]

                          •  The whole fucking system (2+ / 0-)
                            Recommended by:
                            kyril, CMYK

                            HAS been torn down.  And it wasn't by me.  I haven't even been taxed yet.  Or are you saying I should be jailed for something I may doing the future?  Because I believe that's where your logic is leading this discussion.  As I said downthread, It's Joe's Garage come to reality.    

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 10:26:06 AM PST

                            [ Parent ]

                          •  I don't think (0+ / 0-)

                            he really got it.

                            "Progress is impossible without change, and those who cannot change their minds cannot change anything."

                            by TrahmalG on Thu Dec 17, 2009 at 11:51:41 AM PST

                            [ Parent ]

                          •  Nope (1+ / 0-)
                            Recommended by:
                            TrahmalG

                            a waste of time, really.  I'll note it for the future.

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 11:53:26 AM PST

                            [ Parent ]

                      •  Subtle Absolutism (3+ / 0-)
                        Recommended by:
                        kyril, Nada Lemming, TrahmalG

                        TomK002, I think it is poignantly being admitted that the absolute dichotomous fervor you have for the 'rule of law' and for its reverence is only applicable in our justice department when it fits those in power.

                        The comment looking forward is the statement of A.G. and Obama who chose not to investigate or pursue law violations in the previous administration.

                        If the surfdom tax now being proposed in HCR is shoved on the consumer by Health care industry then people (like myself) will not in good faith succumb to that unjust and immoral law.  You see, we get to be selective as to which laws are important just like our justice department.

                  •  people (1+ / 0-)
                    Recommended by:
                    Nada Lemming

                    people ignore laws all the time.  Its getting caught and/or having laws enforced on you that is the bitch.

                    (regarding the bank mess) They want to cure the patient but not deal with the disease.

                    by dark daze on Thu Dec 17, 2009 at 11:31:20 AM PST

                    [ Parent ]

              •  i'll take anarchy over this (3+ / 0-)
                Recommended by:
                praedor, Heterodoxie, Nada Lemming

                i'm coming around to Grover Norquist's side on drowning govt. in the bathtub, the only thing i would add is that we need to drown corporate power in the bathtub at the same time for it to be any better.

                •  We're all (3+ / 0-)

                  teabaggers now.  Those of us who don't work for the government or for a health insurance company, that is.  

                  Democrats have the electrolytes we need!

                  by Nada Lemming on Thu Dec 17, 2009 at 10:19:13 AM PST

                  [ Parent ]

                  •  Bullshit, speak for yourself. nt (1+ / 0-)
                    Recommended by:
                    Deoliver47

                    Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

                    by sherijr on Thu Dec 17, 2009 at 11:23:16 AM PST

                    [ Parent ]

                    •  I rest my case (0+ / 0-)

                      with your comment history, I know that must have felt I directed this at you personally, but I wasn't even aware of you until I clicked on your handle.  Honest.  

                      Democrats have the electrolytes we need!

                      by Nada Lemming on Thu Dec 17, 2009 at 11:41:11 AM PST

                      [ Parent ]

                      •  My comment history? No doll you were speaking (1+ / 0-)
                        Recommended by:
                        Deoliver47

                        for yourself as a teabagger and apparently so proud of it you were hoping to gain some support.  I just made it clear that you speak for your very own teabagging self - not we & us as you so generously allowed yourself to add to the YOU you ought to have been speaking for.  March on.

                        Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

                        by sherijr on Thu Dec 17, 2009 at 11:44:30 AM PST

                        [ Parent ]

                        •  You tried on the shoe (0+ / 0-)

                          when i said were all are - except for those who work for government or health insurance companies. Based on the fact that you think we should all just BOHICA on this pig of a bill......

                          Democrats have the electrolytes we need!

                          by Nada Lemming on Thu Dec 17, 2009 at 11:47:12 AM PST

                          [ Parent ]

                          •  Well sugar- I am disabled. I have my very OWN (1+ / 0-)
                            Recommended by:
                            mahakali overdrive

                            healthcare story.. sorry can't quite fit into your neat little compartments.. but that is a very typical/stereotypical mindset of the republican push being portrayed all across dailykos.  Like I said March on- those talking points are working well for you.

                            Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

                            by sherijr on Thu Dec 17, 2009 at 11:53:32 AM PST

                            [ Parent ]

                          •  giggle (0+ / 0-)

                            yes - you got me, I'm a republican!  hoooo heee hoo he ha ooooh damn!  Oh.   Haaa hahahahhahahah he heheheheheh........what were you saying?   Obama and Leiberman sitting in a tree, k-i-s-s-i-n-g?

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 11:55:32 AM PST

                            [ Parent ]

                          •  Well if the shoe fits, you did say you are a (0+ / 0-)

                            teabagger.  In reality it's pretty obvious you are just playing a game and like to hear yourself talk.  Unfortunately for all your playin' some folks are actually being affected by reality and life.  You and I are now done with this conversation.  Best of luck. enjoy the tea.

                            Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

                            by sherijr on Thu Dec 17, 2009 at 12:02:10 PM PST

                            [ Parent ]

                          •  Actually I just re-read your comment, are you (0+ / 0-)

                            over 18?  What an odd little comment you've made.  

                            Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

                            by sherijr on Thu Dec 17, 2009 at 12:03:30 PM PST

                            [ Parent ]

                          •  IT WAS SNARK (0+ / 0-)

                            I am wholly against this POS of a bill - and will do everything I can to make sure it doesn't get passed as it is. Mandates without reform is tyranny.

                            That's why I said "we're all teabaggers now" - because people like you will call us that.  Proving my point.  

                            And I'm 53 for your information.  

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Thu Dec 17, 2009 at 12:19:12 PM PST

                            [ Parent ]

                          •  You called yourself a teabagger dear. I merely (0+ / 0-)

                            agreed with your vision of yourself, and disagreed with your assumption that WE and US were teabaggers too.  I suggested you speak for yourself.. so now we've come full circle and accomplished nothing.  People like me?  Disabled people who have a stake in healthcare reform?  Or people who disagree with you?  The name calling has been yours alone.  Something to pride yourself on.  As I said, and now will fulfill- our conversation is over.

                            Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

                            by sherijr on Thu Dec 17, 2009 at 12:30:01 PM PST

                            [ Parent ]

                          •  Nice (0+ / 0-)

                            no substance, no point, just I'm rubber you're glue.  

                            Democrats have the electrolytes we need!

                            by Nada Lemming on Fri Dec 18, 2009 at 10:24:36 AM PST

                            [ Parent ]

          •  i'm a war tax resister (2+ / 0-)
            Recommended by:
            praedor, Nada Lemming

            we CAN choose which laws, and even which taxes, we choose to obey. when I do civil disobedience, that's just another example.

            it worries me that more Kossers don't know about things like war tax resistance and its legal history.

            •  And those folks went to jail (3+ / 0-)
              Recommended by:
              Adam B, Deoliver47, MPociask

              Yes, civil disobedience has a long history, and has been used for good. But you have to be willing to pay the price.  

              But as I asked the other commenter, where is the line drawn?  How do I choose what laws I should follow and those that I am free to ignore?

              The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

              by TomK002 on Thu Dec 17, 2009 at 10:18:32 AM PST

              [ Parent ]

          •  really (0+ / 0-)

            millions dont pay their taxes now, plus over half americans dont even file tax returns, so how is this going to work again?

            (regarding the bank mess) They want to cure the patient but not deal with the disease.

            by dark daze on Thu Dec 17, 2009 at 11:30:23 AM PST

            [ Parent ]

          •  come on (0+ / 0-)

            no one is going to jail, ok?

        •  Such bravado. Curious ..what have you (2+ / 0-)
          Recommended by:
          amazinggrace, QES

          gone to jail for in the past?

          "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

          by Denise Oliver Velez on Thu Dec 17, 2009 at 11:50:48 AM PST

          [ Parent ]

      •  What are people rating wingnuts TP? (0+ / 0-)

        This guys a teabagger

      •  Then so too should be every other tax (1+ / 0-)
        Recommended by:
        elmo

        from which you can gain an exemption.

        I pay less in income tax because I pay mortgage interest, and because I put in a better door that will afford me an energy credit. I'm not legally required to pay mortgage insurance or to install a new door, but my decisions to take those actions resulted in an exemption from a portion of my tax.

        THAT'S HOW OUR TAX POLICY WORKS.

        Granted, the Dems have done a piss-poor job of packaging this. Calling it a "mandate?" What a stupid idea. I've thought from the beginning that the way to package this thing is to frame it as a tax incentive. Buy insurance, get a tax break.

        (For the record, I oppose the mandate. But like wmtriallawyer noted, not because of the incorrect believe that it is unconstitutional.)

        •  what a joke (0+ / 0-)

          Granted, the Dems have done a piss-poor job of packaging this. Calling it a "mandate?" What a stupid idea. I've thought from the beginning that the way to package this thing is to frame it as a tax incentive. Buy insurance, get a tax break.

          Yeah, tell poor people who are going broke buying mandated insurance that they are getting a tax break.  I'm sure they will love that.

      •  so, you're opposed to laws that require (0+ / 0-)

        automobile insurance?
        last I saw that was provided by public companies

        republicians, supporters of small gov't and smaller economies

        by askyron on Thu Dec 17, 2009 at 11:24:18 AM PST

        [ Parent ]

        •  Yes, actually (0+ / 0-)

          although I don't think the Constitution prohibits them, because they're conditioned on exercise of a privilege rather than a right. I still oppose them in the absence of a public, government-run, income-sensitive option.

          Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

          by kyril on Thu Dec 17, 2009 at 11:26:11 AM PST

          [ Parent ]

        •  laws requiring auto insurance (2+ / 0-)
          Recommended by:
          furiousxxgeorge, kyril

          are state laws.  States have broad authority to pass laws relating to the health and welfare of their citizens.  The federal government has no such authority, which is why it has to pretend to be regulating interstate commerce.

      •  I'm donating to the fight against the mandate (2+ / 0-)
        Recommended by:
        furiousxxgeorge, kyril

        I agree with the Heritage Foundation, etc. that it's unconstitutional.

    •  Yes... (21+ / 0-)

      let's condemn that noted reactionary Erwin Chemerinsky, and celebrate high tier liberal Randy Barnett.  This has been a real skill of the lega right in recent years--disguising their radical agenda with "liberal" causes--in particular in Raich, the medical marijuana case.

    •  O. K., But As We Bow Down To Our New Liege Lords, (12+ / 0-)

      AKA, the Insurance Companies - can we at least call Individual Mandates, Quasi-Feudalism?

      •  Feudalism is here for sure (4+ / 0-)
        Recommended by:
        leonard145b, kyril, rcnewton, agito

        Obama talked a good game, his "Change you can believe in", made a good slogan.  But now we see that was empty talk, he is bowing to his corporate overlords.

        Did the Health Insurance Kings and Goldman Sachs Emperors sit him down to tell him how things really run?  Or did Rahm Emmanuel do that for them?

        Medicare for All, that is the REAL public option that only needs 50 votes + Biden.

        by MD patriot on Thu Dec 17, 2009 at 09:29:38 AM PST

        [ Parent ]

    •  If you fail to pay the fines levied by IRS.... (15+ / 0-)

      you can face confiscation of your property, frozen bank accounts and there has been more than one person gone to jail for messing with the IRS.

      To be sure, if Congress passed a law whose only provision entailed a mandate for individuals to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise.

      By couching this fine with the IRS, there is the possibility of "going to jail" or at least experiencing hell on earth with IRS on your back, which is probably worse than jail.

      What happens when the American public simply refuses to pay these fines, en mass?  I think it is a distinct possibility.

      If passed, I think this HCR bill could be the match that sets off a full-on revolt by those uninsured, homeless, jobless, frightened people who see their lives being extinguished by an over arching government.  

      •  Tax evasion = crime (7+ / 0-)

        and it always has been. This is no different. If you are evading your taxes now, you can go to jail. The possibility of jail for evading the health care taxes is exactly the same. Are you arguing that it should be unconstitutional to be jailed for failure to pay taxes?

        The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

        by TomK002 on Thu Dec 17, 2009 at 08:57:58 AM PST

        [ Parent ]

        •  You buy insurance from the exchange... (10+ / 0-)

          By paying the premium directly to the company that you pick.  Are we calling these taxes now?  What am I missing?

          To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

          by RichM on Thu Dec 17, 2009 at 09:02:07 AM PST

          [ Parent ]

          •  The tax is (4+ / 0-)

            when you choose not to buy insurance from the exchange and you pay a tax instead (and face criminal penalties from failure to tax).

            The mandate says you have a choice: either you buy insurance or pay a tax.  There can be no question as to the government's ability to levy the tax, and WMTrialLawyer does a good job in debunking the notion that the commerce power doesn't allow the government to mandate the other half of that choice.

            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

            by TomK002 on Thu Dec 17, 2009 at 09:06:11 AM PST

            [ Parent ]

            •  Well then... (4+ / 0-)

              Can the federal government tax you for NOT doing something?  That seems to be a little dicey at best.  There is no precedent for that.  At least I can't think of an example.

              To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

              by RichM on Thu Dec 17, 2009 at 09:10:06 AM PST

              [ Parent ]

              •  Sure they can (4+ / 0-)
                Recommended by:
                RichM, fladem, Adam B, BachFan

                the Constitution contains no such limitation on the power to tax. As long as the tax is reasonably related to the raising of revenue (which, as I recall, is the standard), there is no problem. And there really can't be much of a question that this wouldn't satisfy that standard.

                The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                by TomK002 on Thu Dec 17, 2009 at 09:12:02 AM PST

                [ Parent ]

                •  OK... (4+ / 0-)

                  I see it now.  Thanks.  I would still argue that this is novel enough that it could be taken up by a court and it could make it to SCOTUS - in which case constitutionality would be ruled by 9 people.  But thanks for the clarification.

                  To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

                  by RichM on Thu Dec 17, 2009 at 09:19:16 AM PST

                  [ Parent ]

                •  Sure there's a question (5+ / 0-)

                  Insurance companies sell a product.

                  If the government tries to force everyone in the USA to buy that product, and threatens jail time if they don't, there will be plenty of questions about whether that's the way the USA should work.

                  Obama's not talking on TV about a "tax". He's talking about getting everyone insured. He just fails to mention that this new bill will force everyone to buy insurance.

                  The reason he never mentions that part is because it is wildly unpopular.

                  -What have you got that a man could drink with just a minimum risk of blindness and death.

                  by Toadvine on Thu Dec 17, 2009 at 09:28:35 AM PST

                  [ Parent ]

                  •  That's not how it's structured (3+ / 0-)
                    Recommended by:
                    TomK002, sherijr, mahakali overdrive

                    You can either buy insurance or pay a tax.

                    Ok, so I read the polls.

                    by andgarden on Thu Dec 17, 2009 at 09:30:37 AM PST

                    [ Parent ]

                    •  And if you don't pay the tax? (4+ / 0-)

                      What happens then?

                      You go to jail?

                      Does the Constitution allow that?

                      THe income tax is based upon what you earn. I'm not aware of any taxes based on what you BUY, or don't buy, save for taxes on the goods or svcs as they are bought.

                      There's a tax on gas at the point of purchase. But a federal tax - later - if you fail to buy gas?

                      The commerce laws allow that?

                      I don't think the diarist's argument is that convincing.

                      -What have you got that a man could drink with just a minimum risk of blindness and death.

                      by Toadvine on Thu Dec 17, 2009 at 09:47:19 AM PST

                      [ Parent ]

                      •  Groan (2+ / 0-)
                        Recommended by:
                        neroden, sherijr

                        How are any tax laws enforced? What happens if you don't pay your other taxes?

                        Ok, so I read the polls.

                        by andgarden on Thu Dec 17, 2009 at 09:48:47 AM PST

                        [ Parent ]

                        •  That's kinda the point (2+ / 0-)
                          Recommended by:
                          Terra Mystica, kyril

                          I don't think we have any other taxes like this one.

                          You pay a tax or don't based on whether or not you bought a product or not.

                          Can you think of any other taxes with a similar trigger?

                          -What have you got that a man could drink with just a minimum risk of blindness and death.

                          by Toadvine on Thu Dec 17, 2009 at 09:50:15 AM PST

                          [ Parent ]

                          •  Sure, you either give money to a charity of (0+ / 0-)

                            your choice, or you pay more to Uncle Sam.

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 09:52:19 AM PST

                            [ Parent ]

                          •  Not the same (1+ / 0-)
                            Recommended by:
                            Terra Mystica

                            You're not buying anything from the charity - they don't sell a product.

                            2nd, there's no jail time if you fail to donate to charity.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 09:56:38 AM PST

                            [ Parent ]

                          •  There can be jail time if you don't pay taxes (2+ / 0-)
                            Recommended by:
                            sherijr, nickrud

                            And the fact that you're not buying a product from a charity--totally irrelevant. You also used to get a tax deduction for buying a Prius.

                            I swear you're making arguments against taxes ripped from the Freepers.

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 10:01:25 AM PST

                            [ Parent ]

                          •  Irrelevant? (1+ / 0-)
                            Recommended by:
                            NYlawyer

                            I don't think it's irrelevant. I think it's the main problem with the whole scheme.

                            Public buy-in to Medicare or something like that would be much better.

                            The government granting tax deductions for doing something the government wants to encourage isn't the same thing as the government taxing citizens for not purchasing a product.

                            I can't help it that you don't like my arguments. But I'm certainly NOT taking them from the freepi.

                            Listen, if you can't convince someone like me that this is a great bill, how do you think you're gonna convince people who don't hang out on Daily Kos?

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:07:16 AM PST

                            [ Parent ]

                          •  Actually, I think the policy is crappy (2+ / 0-)
                            Recommended by:
                            sherijr, nickrud

                            and I do not support the Senate bill. However, that is entirely different from whether it is legal.

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 10:08:43 AM PST

                            [ Parent ]

                          •  Then we're agreed. (1+ / 0-)
                            Recommended by:
                            neroden

                            I'm not a lawyer. What's "constitutional" and what's not is a big mystery to me these days.

                            If they can imprison US citizens without trial, torture them, read my email without a warrant, etc., then they can probably tax whoever they want.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:15:34 AM PST

                            [ Parent ]

                          •  Buy insulation, or pay a tax (1+ / 0-)
                            Recommended by:
                            sherijr

                            That's how the energy credit works, no?

                            How about the credit for home sales? Buy a house, or pay a tax.

                          •  They're *income* taxes.... (1+ / 0-)
                            Recommended by:
                            Catesby

                            Frankly if the whole thing was structured as breaks on the income tax I think there would be no constitutional question.

                            Oddly, it isn't.

                            -5.63, -8.10. Learn about Duverger's Law.

                            by neroden on Thu Dec 17, 2009 at 11:40:46 AM PST

                            [ Parent ]

                          •  I've wondered, myself, (1+ / 0-)
                            Recommended by:
                            neroden

                            why it wasn't structured that way. But I guess that would have meant an increase in the income tax, along with the subsequent break for insurance buyers, and that would have broken the no-tax-increase promise.

                            All in all, an extraordinarily tone-deaf and policy-blind way to approach this. But I've come to expect no more from Democrats.

                          •  Why does that matter? (0+ / 0-)

                            Just because it might be a novel construct, that does not mean it doesn't fall within Congress' taxing power.  The tax would certainly be reasonably related to the raising of revenue and it wouldn't be targeted at some protected group (which means no equal protection problem). So what's the legal problem here?

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 09:57:13 AM PST

                            [ Parent ]

                          •  Novel and unpopular (0+ / 0-)

                            So unpopular you gotta wonder if it'll become law.

                            Can you think of any taxes where the taxation is based upon the citizen's purchase of a product? Not an immediate tax, like the tax on gas or lumber or whatever - but a tax levied because you didn't buy something?

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:02:31 AM PST

                            [ Parent ]

                          •  Sure (1+ / 0-)
                            Recommended by:
                            andgarden

                            There tax breaks for people who buy certain things, there are a lot in the stimulus bill (e.g. energy-effecient appliances). Those who don't buy those things are going to pay more in taxes.

                            But even if those didn't exist, it wouldn't matter. The taxes that accompany the mandates don't implicate the limitations on Congress' taxing power that have been established by the Supreme Court.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:04:36 AM PST

                            [ Parent ]

                          •  Is a tax break the same as a tax levied... (1+ / 0-)
                            Recommended by:
                            NYlawyer

                            ...solely because you didn't buy some product?

                            I don't think it is.

                            Can you think of an example?

                            I'm not arguing that the Congress can pass the law. Clearly they can - and likely will, since $$ talks - but I think you can make an argument that the law will be found to be un-constitutional.

                            None of the tax breaks for people who bought things included penalties or jail time for people who did NOT buy those things.

                            A Prius may get me a tax break. But if I don't buy a Prius, or don't buy a car at all, the gov't is not gonna make me pay taxes to cover the cost of transportation for the rest of the country.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:11:52 AM PST

                            [ Parent ]

                          •  The tax code is enforceable by criminal penalty (1+ / 0-)
                            Recommended by:
                            andgarden

                            period.  What would be the reasoning behind the claim that because this tax is different, it wouldn't be constitutional to use criminal law to enforce it?  The fact is that all other taxes can be enforced that way, this is no different. The "necessary and proper clause" would allow criminal sanctions here just like they would with any other tax.

                            To answer your other question, I think this situation is analogous to your Prius example.  You buy a Prius and get a tax break, if you don't, you pay more taxes and that revenue is going to go to, among other things, programs to cover public transportation, reduce greenhouse gases, etc.  Thats basically what is going on here.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:15:47 AM PST

                            [ Parent ]

                          •  But what if you don't buy the Prius? (1+ / 0-)
                            Recommended by:
                            NYlawyer

                            Will they still hit you with a tax of the same magnitude as you would've paid on the Prius?

                            What if you don't buy a car at all? Are you saying the government can come to you and say, "You MUST buy a car".

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:19:20 AM PST

                            [ Parent ]

                          •  Probably not the same magnitude (0+ / 0-)

                            but that isn't the case with the health care bill either. The penalties on the mandates are $750/person and about $2250 per family, if I remember correctly. Those penalties are almost certainly going to be considerably less than the cost of insurance (which is a policy argument against mandates, but not a legal one).

                            But again, the size of the tax relative to the alternative product has no bearing on the legality of the mandate.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:25:33 AM PST

                            [ Parent ]

                          •  So your answer is "no". And still no examples (1+ / 0-)
                            Recommended by:
                            NYlawyer

                            "Probably not the same magnitude"

                            Uh. The magnitude would be $0.

                            You wouldn't pay any tax at all.

                            Obviously, if you don't buy a Prius (or a car at all) you won't have to pay any tax.

                            Hate to keep saying the same thing...

                            But a tax break isn't the same as a tax levied because you didn't buy a product.

                            Can you think of an example of a tax levied because someone didn't buy a product?

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:33:39 AM PST

                            [ Parent ]

                          •  Actually, you do pay the tax (1+ / 0-)
                            Recommended by:
                            andgarden

                            you pay the federal income tax levied by the USFG. You pay less if you buy the product.  It's not a perfect analogy, but it's pretty close.

                            But, again, for like the 4th time, I have heard no argument how that distinction in any way implicates Congress' ability to levy that tax.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:36:54 AM PST

                            [ Parent ]

                          •  Not even close (0+ / 0-)

                            I'm sorry, the argument isn't convincing. You pay much less if you DON'T buy the product.

                            I'd be willing to bet that this bill's constitutionality would be questioned very quickly. The courts tend to look at precedent, don't they?

                            Are there any precedents for the kind of taxation you're talking about?

                            I don't think there are. So, I think there's fair chance the courts would say this isn't gonna fly.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:42:51 AM PST

                            [ Parent ]

                          •  There is lots of precendent (0+ / 0-)

                            that sets for the limitations on Congress' ability to tax and the standards by which the Courts will judge whether a tax is a valid use of Congress' power. The reality is that an application of those precedents makes it crystal clear that this is not unconstitutional.  The fact that this would tax the failure to buy a product rather than a tax break for a purchase has no impact on the application of those precedents.

                            If you've can point to some SCOTUS precedent that would implicate the distinction, I'd love to see it. But, I'm pretty sure you can't do it.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:46:06 AM PST

                            [ Parent ]

                          •  Lots of precedent? (0+ / 0-)

                            For taxation for NOT buying a product?

                            Can you give me one?

                            The articles I've seen all comment that there are no such examples. It's never been done.

                            If citizen X doesn't buy a product from a for-profit company, you're saying the government can tax him if he doesn't.

                            I don't think there is any such precedent.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 10:54:32 AM PST

                            [ Parent ]

                          •  This is just not that difficult. (0+ / 0-)

                            This is pretty simple.  The 17th Amendment allows Congress to tax income, from whatever source derived. The manner in which Congress taxes that income is not restricted (other than if it taxed based on some criteria that is otherwise protected by the Constitution, e.g., race, religion, speech, etc.).  

                            Then, we get to the taxation clause, that the basic test is that the tax has to be reasonably related to the raising of revenue. If it is, and its not based on some prohibited criteria (see above), then there is no problem with the tax.  There is NO QUESTION that the tax at issue here would survive under that test.  

                            Under existing precedent there is NO REASON to suspect that the Court would find this tax unconstitutional simply because it stems from the failure to purchase a product.  If you can point everyone to a case that would suggest otherwise, I'm sure we'd all love to see it, but I don't think such a case exists.  You can keep making your same point over and over again, but it doesn't change the fact that the established precedent does nothing to support your argument.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 11:03:41 AM PST

                            [ Parent ]

                          •  Here you go (0+ / 0-)

                            "... it is not within the functions of government- at least, in the absence ... against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another ..."

                            That took about 10 minutes. I'll see if I can find more.

                            http://caselaw.lp.findlaw.com/...

                            I'm certain the people pushing this bill are aware of this old SCOTUS decision. They probably think it's not germane to the current HCR bill.

                            However, it IS a precedent - SCOTUS precedent - having to do with the government compelling a person to accept the "services" of another person. In this case, an insurance company.

                            Now, since I found a case, do you think you could find an example of a similar tax, levied on someone who failed to make a purchase?

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 11:36:38 AM PST

                            [ Parent ]

                          •  Relying on Adair is not a good idea (0+ / 0-)

                            The case is from 1908, part of the "Lochner" Era of the Court.  Entire face of the commerce clause changed with the new deal in the 30s. Adair and most of the cases of that era dealing with the limits of the commerce clause are of, at best, dubious validity now. If you want a better idea of how the Court will view the commerce clause, read Wickard v. Filburn, 317 US 111.

                            Plus, that case wouldn't implicate the ability of Congress to levy a tax on those who don't contract with the insurance company, since it is without question that one of the primary purposes of the tax would be the raising of revenue.  Regardless of whether the part of the mandate requiring purchase would survive (and I'm certain it would), the tax for failure to do it wouldn't go away.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 11:44:41 AM PST

                            [ Parent ]

                          •  You asked for a case... (0+ / 0-)

                            ...and got one. There are more, if we keep looking.

                            You still provide no example of a similar tax levied only on those who fail to buy something.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 12:03:34 PM PST

                            [ Parent ]

                          •  And I can find cases saying (1+ / 0-)
                            Recommended by:
                            andgarden

                            segregated schools are ok, but that doesn't mean that they're still good law.  Wickard (1942), and a number of cases before it, pretty much eviscerated any thought that Adair is still good law.

                            There isn't going to be a case directly on point, because if there were and the Court had specifically ruled, this diary wouldn't exist. But the reality is that the Court has set up fairly clear standards for what is a permissible tax and what is not, and when the government can tax, and when it can't, and what is an acceptable use of the commerce power and what is not.  Looking through the lens of those cases, the inescapable conclusion is that this was survive constitutional scrutiny.  

                            The fact is that there is a presumption in favor of an act of Congress being constitutional. The fact that this is a "different" type of tax doesn't change that presumption.  Thus far you have pointed to nothing which would indicate that the presumption could be overcome in this case.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 12:19:52 PM PST

                            [ Parent ]

                          •  Well, circles... (0+ / 0-)

                            ...is what we're going around in.

                            I think the case I found speaks pretty plainly to the question of whether the federal government can compel someone to buy a product. The SCOTUS said it can't.

                            The Wickard case had to do with production of wheat and taxation on produce. It had nothing to do with whether Mr Wickard bought or didn't buy anything.

                            You keep saying you can "look thru the lens of those cases," but you don't provide any examples that are close to the point under discussion.

                            So - here we are, two liberals on Daily Kos. Both likely voted for the same guy for president.

                            And you can't convince ME of your argument.

                            How on earth do you think Obama and the Dems will convince the country that this is fair?

                            The Wickard case was decided in 1942 by a bunch of judges appointed by FDR. 7 of the 8, right? They had just lived thru the Great Depression. You think todays court will decide in the same way?

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 12:56:20 PM PST

                            [ Parent ]

                          •  Adair is not good law (0+ / 0-)

                            The Supreme Court has made this clear:

                            In 1907 this Court in Adair v. United States, 208 U.S. 161, considered the federal law which prohibited discrimination against union workers. Adair, an agent of the Louisville & Nashville Railroad Company, had been indicted and convicted for having discharged Coppage, an employee of the railroad, because Coppage was a member of the Order of Locomotive Firemen. This Court there held, over the dissents of Justices McKenna and Holmes, that the railroad, because of the due process clause of the Fifth Amendment, had a constitutional right to discriminate  [*535]  against union members and could therefore do so through use of yellow dog contracts. The chief reliance for this holding was Lochner v. New York, 198 U.S. 45, which had invalidated a New York law prescribing maximum hours for work in bakeries. This Court had found support for its Lochner holding in what had been said in Allgeyer v. Louisiana, 165 U.S. 578, a case on which appellants here strongly rely. There were strong dissents in the Adair and Lochner cases.

                            In 1914 this Court reaffirmed the principles of the Adair case in Coppage v. Kansas, 236 U.S. 1, again over strong dissents, and held that a Kansas statute outlawing yellow dog contracts denied employers and employees a liberty to fix terms of employment. For this reason the law was held invalid under the due process clause.

                            The Allgeyer-Lochner-Adair-Coppage constitutional doctrine was for some years followed by this Court. It was used to strike down laws fixing minimum wages and maximum hours in employment, laws fixing prices, and laws regulating business activities. See cases cited in Olsen v. Nebraska, 313 U.S. 236, 244-246, and Osborn v. Ozlin, 310 U.S. 53, 66-67. And the same constitutional philosophy was faithfully adhered to in Adams v. Tanner, 244 U.S. 590, a case strongly pressed upon us by appellants. In Adams v. Tanner, this Court with four justices dissenting struck down a state law absolutely prohibiting maintenance of private employment agencies. The majority found that such businesses were highly beneficial to the public and upon this conclusion held that the state was without power to proscribe them. Our holding and opinion in Olsen v. Nebraska, supra, clearly undermined Adams v. Tanner.

                            Appellants also rely heavily on certain language used in this Court's opinion in  [**257]  Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522. In that case the  [*536]  Court invalidated a state law which in part provided a method for a state agency to fix wages and hours. 6 See Wolff Co. v. Industrial Court, 267 U.S. 552, 565. In invalidating this part of the state act, this Court construed the due process clause as forbidding legislation to fix hours and wages, or to fix prices of products. The Court also relied on a distinction between  [***221]  businesses according to whether they were or were not "clothed with a public interest." This latter distinction was rejected in Nebbia v. New York, 291 U.S. 502. That the due process clause does not ban legislative power to fix prices, wages and hours as was assumed in the Wolff case, was settled as to price fixing in the Nebbia and Olsen cases. That wages and hours can be fixed by law is no longer doubted since West Coast Hotel Co. v. Parrish, 300 U.S. 379; United States v. Darby, 312 U.S. 100, 125; Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 187.

                            FOOTNOTES

                            6 Other parts of the state statute related to matters other than wages, prices, and the making of contracts of employment. Considerations involved in the constitutional validity of those other parts of the statute are not relevant here.

                            This Court beginning at least as early as 1934, when the Nebbia case was decided, has steadily rejected the due process philosophy enunciated in the Adair-Coppage line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that HN6Go to the description of this Headnote.states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. See Nebbia v. New York, supra at 523-524, and West Coast Hotel Co. v. Parrish, supra at 392-395, and cases cited. Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and state legislatures are put in  [*537]  a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare.

                            LINCOLN FEDERAL LABOR UNION v. NORTHWESTERN IRON & METAL CO., 335 U.S. 525, 534(1949)

                            Plus, if you want to rely on Adair, you are going to run smack dab into the "law of unintended consequences."  Adair struck down a federal law that made it illegal to fire employees because of their participation in a union. If you want to go back to that, most of our labor laws go out the window.  Likewise, laws about child labor, minimum wage, etc. would also quickly fall.

                            And, I would note, that there is precedent for the Congress to force some to buy particular goods or services. For example, under the Clean Air Act, there are some regulations that require all those falling under the purview of the act to employ the best technology available or to face massive fines or other sanctions. That is directly analogous to the present situation.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 01:13:33 PM PST

                            [ Parent ]

                          •  Clean air act? Not analogous. (0+ / 0-)

                            Limiting pollution protects society at large, obviously.

                            Mandatory purchasing of (likely shoddy) healthcare insurance does not protect society at large. At best, you'd hope that it protects the covered individual.

                            Anyway, we're not gonna agree. I don't think your arguments for the constitutionality of this bill hold water.

                            But then, my opinion doesn't matter much, does it? The people whose opinions count are the judges who'll hear the inevitable case(s).

                            For my part, I'm disgusted with my party, that they've come to this.

                            "Yes, we can". What a load of bunk.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 07:01:27 PM PST

                            [ Parent ]

                          •  "Protects society at large" = not relevant (0+ / 0-)

                            Congress' power to regulate interstate commerce and to tax is plenary, meaning that it can do whatever it wants unless doing so violates another provision of the Constitution.

                            The fact that pollution controls "protect society at-large" is completely irrelevant to the reasons why the technology mandates are constitutionally permissible. If something falls within Congress' commerce power, it can do whatever it wants for whatever reason. If it wants to ban the transport of the Arctic Char fish in interstate commerce simply because "it tastes bad" or "Senator X had a bad experience with it," Congress would be perfectly free to do that.  In an instance where the Equal Protection Clause isn't implicated, the only thing the Court would examine is to see whether the action has enough of a significant nexus to interstate commerce so as to fall under the commerce clause. Because this is a direct regulation of economic activity, there is no way that the Court would use the Lopez or Morrison precedents to strike it down.

                            Similarly, the tax is obviously meant to raise revenue, and even if it has an ancillary purpose, that won't matter. Plus, the Court isn't going to look at whether the purpose is of a substantial enough benefit to justify the tax. That is a question that the Court is going to leave to the Legislative Branch.

                            But even if you were right, and the reason that the technology mandates were upheld was because it "protected society at-large," I think that the Congress can make a pretty good argument why the mandates are vital to achieving near-universal coverage and that is a benefit to society at-large.  The Court is going to defer to the Congress' findings on such a matter.

                            In the end, I return to the fact that there is a presumption that an act of Congress is constitutional, and the burden is on those opposing the act to prove that it is unconstitutional. Thus far, you have shown no case law that is still good law that would indicate that the Court would strike this down.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Fri Dec 18, 2009 at 09:51:55 AM PST

                            [ Parent ]

                          •  No case law that is still good law? (0+ / 0-)

                            "If something falls within Congress' commerce power, it can do whatever it wants for whatever reason. If it wants to ban the transport of the Arctic Char fish in interstate commerce simply because "it tastes bad" or "Senator X had a bad experience with it," Congress would be perfectly free to do that."

                            You're assuming that the courts would look at a law without any consideration for why it was passed, or what the prevailing public opinion was.

                            I think you're way off the mark in doing so.

                            You also still haven't provided a single example of the government taxing someone because of their failure to purchase a product. I don't think such a thing has ever happened, and I don't think it will.

                            I guess we'll have to see how it pans out, huh?

                            Hopefully it'll never be an issue. If things keep going the way they are, the Senate version may be killed outright.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Fri Dec 18, 2009 at 11:35:29 AM PST

                            [ Parent ]

                          •  The Courts generally don't look at "why" (0+ / 0-)

                            The SCOTUS has said countless times in its history that it is not a legislative body and it does not determine whether there is sufficient justification for a law that Congress passes.  The also, at least in theory, don't cave to public opinion, and thank god that's true, or Brown and Roe would have been decided the other way.

                            The only time that a Court looks to the "why" of a law is when it impacts a fundamental right or affects a protected group: e.g. a law that would be a prior restraint on speech or a law that targets a particular minority. In that instance, there is hightened scrutiny (usually strict scrutiny, but intermediate scrutiny when involving gender). If a case is given strict scrutiny, the Court looks to see if there is a compelling state interest and whether the policy is narrowly tailored to achieve that interest.  But, the issue of mandates wouldn't be looked at under strict scrutiny. Rather, it would be examined under the "rational basis" standard, meaning that if there is ANY theoretical basis why Congress would have done this, pretty much no matter how flimsy (and keep in mind the Court won't question the Congress' factual findings), the law will be upheld. In fact, the standard is so deferential to Congress that the Court has NEVER struck down a law on the grounds that it failed rational basis review.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Fri Dec 18, 2009 at 03:16:02 PM PST

                            [ Parent ]

                          •  The SCOTUS (0+ / 0-)

                            You keep discussing it as if it were a consistent body of people who always see things the same way.

                            It's not. I've been alive long enough to see that for myself. Further, the Court today is far more conservative than it was in 1942. The idea that it'll side with a Democratic Congress on such a contentious idea - when there's a shred of argument in the other direction - leads me to believe that your argument is over-simplified.

                            The current SCOTUS is further to the right than the one which gave us Shrub when he ran against Gore. I wouldn't count on them to be apolitical. To the contrary, they often wear their politics on their sleeves, and their opinions reflect them.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Fri Dec 18, 2009 at 06:30:21 PM PST

                            [ Parent ]

                          •  Actually interesting (0+ / 0-)

                            The dissents in that case are also fun to read. It hinged upon the right of an employer to fire an employee for joining a union.

                            Much of the verbiage in the majority and dissenting statements would apply to what we're discussing here today.

                            http://www.tourolaw.edu/...

                            http://www.tourolaw.edu/...

                            http://www.tourolaw.edu/...

                            The HCR law doesn't touch upon labor or unionization, per se - but it DOES get into the question of whether the government can compel a citizen to purchase a product from another citizen.

                            So, there's an argument to be made. Your statement, "Under existing precedent there is NO REASON to suspect that the Court would find this tax unconstitutional simply because it stems from the failure to purchase a product.  " seems to me to be incorrect.

                            There IS a reason to suspect the SCOTUS would find it unconstitutional.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 11:55:09 AM PST

                            [ Parent ]

                          •  If you want to reestablish Lochner (0+ / 0-)

                            And let me let you in one something: nobody does.

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 12:03:46 PM PST

                            [ Parent ]

                          •  Have you read those opinions? (0+ / 0-)

                            Do you disagree with this?

                            "While the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law, are subject to such reasonable restrictions as the common good or general welfare may require, it is not within the functions of government -- at least in the absence of contract -- to compel any person in the course of his business, and against his will, either to employ, or be employed by, another."

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 12:12:08 PM PST

                            [ Parent ]

                          •  Every law student reads those opinions (0+ / 0-)

                            Holmes had a response in his dissent:

                            General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

                            let me just ask you another question: how firm is your belief that the "right to contract" is fundamental? What if that right made the Civil Rights act unconstitutional?

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 12:28:22 PM PST

                            [ Parent ]

                          •  Holmes (0+ / 0-)

                            I agree with Homes as far as the labor law aspect goes. Holmes was spot on WRT the social consequences of the majority opinion.

                            I think that in this case, Holmes would side with those who OPPOSE this mandate. Partly because it is so unpopular - against the dominant opinion - and partly because it will infringe on a citizen's liberty.

                            If Congress decides to mandate that we must buy stock in Aetna - to protect the company, which is vitally important to our economy - would you go along with that, too?

                            I'm no lawyer, but it seems to me that these questions are never cut and dry - never one simple angle to them.

                            There's points to be made on both sides of this argument. You ask if the Civil Rights Act should be jettisoned in favor of right to contract? Of course not. I think that's a straw man argument. If you say I can't have both, then I say you're rigging the game.

                            And you didn't answer my question - do you disagree with the quote above?

                            My stance is that this mandate idea is so idiotic, and so crooked, and so un-popular, that it will fail. People are pissed about it.

                            Is it truly unconstitutional? I have no idea. But I am pretty sure that nobody on this website knows for sure, either.  We all have opinions, but none of us knows which way the courts would decide a case like this.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 12:44:22 PM PST

                            [ Parent ]

                          •  There are some embedded issues here (0+ / 0-)

                            First, The Court revisited the issue in West Coast Hotel:

                            The constitutional provision invoked is the due process clause of the Fourteenth Amendment governing the states, as the due process clause invoked in the Adkins Case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. [300 U.S. 379 , 392]   This essential limitation of liberty in general governs freedom of contract in particular. More than twenty-five years ago we set forth the applicable principle in these words, after referring to the cases where the liberty guaranteed by the Fourteenth Amendment had been broadly described. 1  

                            'But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.'

                            Second,  when Holmes writes about the dominant opinion, he means that which would be expressed in the legislature.

                            You will be happy to learn that the Court has developed a framework for how to evaluate claims that fundamental rights are being infringed on, so it's not totally arbitrary. This is really a fascinating topic, and deserves much more time and space than I can give it here. I will tell you that under modern jurisprudence, almost no economic right is considered fundamental. So when you bring a claim into Federal court that your right to enter into some kind of contract is being infringed upon, the court will determine whether there was any rational basis for the law. If so, you're out of luck.  Mostly what's at issue today is personal liberty (i.e., Roe v. Wade).

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 01:04:03 PM PST

                            [ Parent ]

                          •  You're right - it IS fascinating (0+ / 0-)

                            The opinions are fun to read when they get to the point of discussing the arguments in plain english.

                            Many of Holmes' opinions that I've read are like that - clear, lucid. Thanks for the excerpt.

                            -What have you got that a man could drink with just a minimum risk of blindness and death.

                            by Toadvine on Thu Dec 17, 2009 at 06:54:25 PM PST

                            [ Parent ]

                          •  Oh, and the issue of popularity (1+ / 0-)
                            Recommended by:
                            andgarden

                            is entirely separate from the issue of constitutionality.  I agree that it is going to be a political disaster to have mandates without having a public option or other strong mechanisms to control costs.  In fact, I will probably oppose the bill if the mandates are included unless a public option or some incredibly strong regulatory mechanisms are included along with the mandates.  But, I still think its perfectly constitutional.

                            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                            by TomK002 on Thu Dec 17, 2009 at 10:06:22 AM PST

                            [ Parent ]

                          •  I agree exactly (1+ / 0-)
                            Recommended by:
                            TomK002

                            Ok, so I read the polls.

                            by andgarden on Thu Dec 17, 2009 at 10:09:43 AM PST

                            [ Parent ]

                          •  The legal problem is it is clearly a capitation (0+ / 0-)

                            tax and capitation taxes are clearly forbidden in the Constitution, unless specific and clear steps are taken, which have not been done in this case.

                    •  But this form of tax is unconstitutional (0+ / 0-)

                      the way it is currently structured.

                      The federal government can charge income taxes.  This is clearly not an income tax.  Any direct taxes, such as this, and capitation tax, such as this, has to be apportioned to the States according to the census.  Which this is not.

                      It would be simple enough to change this tax to an income tax levy, and this problem goes away.  But they haven't.

                •  Do you have examples of gov't taxes on doing (0+ / 0-)

                  nothing?  I can't think of any offhand.  I think this is a whole new area of taxation, if a tax is what it is.

                  "I'm mean in the East, mean in the West. Mean to the people that I like best. ... I push folks down, and I cause train wrecks." Woody Guthrie

                  by Terra Mystica on Thu Dec 17, 2009 at 10:08:30 AM PST

                  [ Parent ]

                  •  There are analogous situations (1+ / 0-)
                    Recommended by:
                    andgarden

                    As I and a number of other commenters have noted, the government gives tax breaks now for buying certain products. In the absence of a purchase of that product, you pay more in taxes. So, you are essentially being taxed for doing nothing.  It's not a perfect analogy, but its close enough.

                    The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                    by TomK002 on Thu Dec 17, 2009 at 10:34:29 AM PST

                    [ Parent ]

                    •  Yes, but again, tax breaks are based on having (1+ / 0-)
                      Recommended by:
                      NYlawyer

                      income.  They are based on owing and paying taxes in the first place.  As I understand it, the penalty for not buying in in this scenario has no such predicate.  As a condition of existence, you buy or you pay or you go to jail.

                      I don't think the income tax examples are at all analogous.  As you said above, this will be heard.  But I'm not sure the outcome is as certain as you describe.

                      "I'm mean in the East, mean in the West. Mean to the people that I like best. ... I push folks down, and I cause train wrecks." Woody Guthrie

                      by Terra Mystica on Thu Dec 17, 2009 at 10:46:51 AM PST

                      [ Parent ]

                      •  Once, Just Once (0+ / 0-)

                        I'd love to hear someone that is commenting in this diary and who believes the mandates are unconstitutional would point to SPECIFIC Supreme Court precedent regarding Congress' power to levy taxes to support their position that there is a good chance SCOTUS would strike this down.

                        The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

                        by TomK002 on Thu Dec 17, 2009 at 10:52:27 AM PST

                        [ Parent ]

                        •  Well, once just once, I'd like to see examples of (0+ / 0-)

                          valid and/or salient precedents for this type of tax (again, if a tax is what it is) that would enable (or would have enabled) a SCOTUS/lower court decision on the specifics of this particular issue.

                          I see a lot of flawed analogy, and arguable (and maybe valid) advocacy, but no on-point precedents.

                          This is a new area.  But I strive to keep an open mind.

                          "I'm mean in the East, mean in the West. Mean to the people that I like best. ... I push folks down, and I cause train wrecks." Woody Guthrie

                          by Terra Mystica on Thu Dec 17, 2009 at 11:16:45 AM PST

                          [ Parent ]

                        •  I'll probably get an education on this, but here (0+ / 0-)

                          is one on takings:

                          DAVID H. LUCAS v. SOUTH CAROLINA COASTAL COUNCIL
                          505 U.S. 1003 (1992)
                          U.S. SUPREME COURT
                          Decided June 29, 1992

                          I hate to use Scalia, but...

                          We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.

                          If someone who is self-insured (i.e. not paying into a designated corporation) is deprived of the use of their financial assets (which may include real property) for a definition of the common good, and receive no reciprocal benefit, are they not entitled to compensation?  I would construe compensation in this case to mean some form of gov't insurance bene in the amount of the taking ($750).  Since in the current proposals that is not the case, and barring some form of compensation for the fine, this is an unconstitutional taking.

                          See, I can be creative.

                          Have at...  ;)

                          "I'm mean in the East, mean in the West. Mean to the people that I like best. ... I push folks down, and I cause train wrecks." Woody Guthrie

                          by Terra Mystica on Thu Dec 17, 2009 at 12:21:03 PM PST

                          [ Parent ]

                        •  There's this in the Constitution (0+ / 0-)

                          Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.

                          No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

                          I have not heard one person say how  a $750 per person capitation tax fits these requirements.

                          Capitation taxes are not income taxes.  A $750 flat fee is in no way related to your income.  The 16th Amendment had to be passed to expressly make taxation of income constitutional without being apportioned amongst the states.

              •  Lack of precedent (3+ / 0-)
                Recommended by:
                TomK002, shanikka, BachFan

                does not amount to a constitutional problem.

              •  Sure (3+ / 0-)
                Recommended by:
                TomK002, mmacdDE, BachFan

                I'm getting at tax credit for investments in certain energy improvements to my home. There can similarly be a tax credit for buying health insurance. No expenditure on the energy improvements, or the health insurance, and I don't get the tax credits for those.

                Of course, part of the formula is also to raise overall taxes enough to offset the average of the credits. A lot of the negotiation now is on where to place those additional taxes. But it's entirely within the norm for the government to offer tax credits for things perceived as socially good - charitable contributions, mortgage interest, whatever.

                •  It's subtle... (2+ / 0-)
                  Recommended by:
                  kyril, NYlawyer

                  But tax credits are not the same as fines.  I understand what you are saying - but the difference is between rewarding good behavior and punishing bad.  It's subtle enough.  I understand the diariest' argument - but I think there may be enough wiggle room in order to make a case out of it.

                  To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

                  by RichM on Thu Dec 17, 2009 at 09:21:58 AM PST

                  [ Parent ]

                •  I could definitely see that working (1+ / 0-)
                  Recommended by:
                  Planet B

                  give me a decent tax credit for getting insurance, and charge me a surtax if I don't. There's an incentive for getting it, and in some cases, the money to pay for it.

                  Give the company a tax credit if they provide it, and levy a surcharge if they don't.

                  Make that a refundable credit, like the EIC is, and even if you didn't make much you'd still get the money, which would let you cover the cost of insurance.

              •  They tax you for not having kids (1+ / 0-)
                Recommended by:
                importer

                People who don't have kids pay a higher tax rate...

                Unsure if that relates, but I've seen that argument made and it seemed pretty accurate.

                "Even if you are a minority of one, the truth is the truth." - Gandhi

                by mahakali overdrive on Thu Dec 17, 2009 at 09:34:24 AM PST

                [ Parent ]

              •  Don't have a mortgage (1+ / 0-)
                Recommended by:
                importer

                with interest payments, and you will pay higher taxes.

                The most important way to protect the environment is not to have more than one child.

                by nextstep on Thu Dec 17, 2009 at 09:35:40 AM PST

                [ Parent ]

            •  And what about the people (4+ / 0-)
              Recommended by:
              RichM, MD patriot, furiousxxgeorge, kyril

              with religious objections to insurance? The Amish have, and there's precedent for them NOT paying for insurance that's required by the govt - Social Security.

              Frankly, I don't mind if I'm required to have insurance IF the govt strictly regulates and oversees the companies that provide it.

              But I would much rather the govt levy a tax and provide the service, even if they contract with an outside company to provide it.

              Much, much cleaner that way.

            •  My anscesters (3+ / 0-)
              Recommended by:
              importer, furiousxxgeorge, kyril

              In the original Massachusetts colony were Quakers, but the Puritans required them to join their church or pay a tax.  The tax of course would force them to sell their property to pay it, leaving them peniless and with no way of earning a living.  

              They instead chose to move somewhere else before the tax could be levied.

              Not saying, just saying.  

              Democrats have the electrolytes we need!

              by Nada Lemming on Thu Dec 17, 2009 at 09:29:41 AM PST

              [ Parent ]

        •  are there enough JAILS for all of us (14+ / 0-)

          who WILL refuse to pay this TAX? as the bill in the Senate stands, I am going to be forced to either buy a private product or be penalized by the federal government, through a punitive tax, for refusing to be FORCED to buy a product I will not want from a PRIVATE concern...   I am told it is constitutional for the fedral goverment to FORCE me to buy a private product or TAX me as punishment and if I refuse to do either I will go to Jail...  so be it.  People in our nation have gone to jail to oppose many things...  it is the nature of our democracy to stand up to government and if need be GO TO JAIL...  so be it...  are there enough cells for all of us who will do that?  just wondering.

          "Republican 'truth' is undisturbed by actual Reality"

          by KnotIookin on Thu Dec 17, 2009 at 09:04:53 AM PST

          [ Parent ]

          •  Probably (1+ / 0-)
            Recommended by:
            BachFan

            If you don't want to follow a perfectly constitutional law and are willing to pay the penalty, that's your choice.  We live in a society where everyone is afforded the opportunity to petition the government for redress of grievances, and if you can convince them to change the policy, good for you. But if you can't, tough cookies.

            I don't like the mandate either (at least not without major cost containment provisions in the bill), but I won't say that its a law the government can't make. And if I were a judge, I would not hesitate for a nanosecond to send you to jail for tax evasion.

            Where do you draw the line?  There are a lot of nuts out there who think that the government has no power to levy income taxes either?  Do you stand in solidarity with them?

            The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

            by TomK002 on Thu Dec 17, 2009 at 09:10:04 AM PST

            [ Parent ]

            •  TOM at one time SEGREGATION was constitutional (2+ / 0-)
              Recommended by:
              Lady Libertine, TrahmalG

              it was a "perfectly constitutional law" and thank goodness there were people brave enough, in our nation, to be willing to go to jail and worse to oppose it...

              there are alot of other things that were 'perfectly constitutional' at one time in our nation and a long list of patriots who went to jail AND WORSE to oppose them...

              are you saying that if something is deemed constitutional NOW that we should accept it will always be constitutional and just not even try to change it?

              and YES, I pay my taxes but this would not BE a 'tax' it would be a FINE for refusing to be forced to buy some private insurers product.... constitutional for NOW but for always????  History teaches us that what is constitutional NOW may not always BE considered constitutional.

              "Republican 'truth' is undisturbed by actual Reality"

              by KnotIookin on Thu Dec 17, 2009 at 10:59:52 AM PST

              [ Parent ]

          •  Do you refuse to pay income taxes (4+ / 0-)

            that provide you with the U.S. military, schools, roads, and so forth?

            What's the damned difference?

            The diarist is correct that all the anti-mandate whining from Democrats is just like the teabaggers.

            •  Re (2+ / 0-)
              Recommended by:
              KnotIookin, kyril

              The difference is that those taxes go to a government body duly authorized to spend them, not to unaccountable private organizations.

            •  IMO, The difference... (2+ / 0-)
              Recommended by:
              Timaeus, kyril

              ...is that THIS piece of legislation is being created as we speak, and is really crummy.

              The talking points against it write themselves. It's a crap piece of law, if it becomes law, and Obama will come to regret signing it, if he does.

              In a perfect world the taxes we pay wouldn't go for things we disagree with. But we have to accept things that have already been ensconced as law. My tax $$ go to fund two wars I oppose - but that's the way it is.

              This current debate isn't like that - it's not a done deal. The anger currently being expressed (thank God) might force the legislation back into a better form.

              The anti-mandate whining from the progressives started the day the buy-in was dropped. The teabaggers have been moaning ever since the reform movement started. That's the difference.

              -What have you got that a man could drink with just a minimum risk of blindness and death.

              by Toadvine on Thu Dec 17, 2009 at 09:35:45 AM PST

              [ Parent ]

            •  Because income taxes are constitutional (0+ / 0-)

              see 16th amendment.

              Capitation taxes are forbidden by the constitution, unless apportioned to the States by population according to the census.

              That is a massively HUGE difference.

              This is why contributions to Social Security, Medicare etc. are all based on income, not a flat fee per person.

              If you think this is whining, then please explain how the $750 'tax' to enforce the mandate complies with the constitutional restriction on capitation and other direct taxes not covered by the 16th Amendment.

              •  Heavens! I'm sorry, but I'm not competent to (0+ / 0-)

                answer that.  I did take tax and constitutional law at a very good law school in 1980, but I'm not an expert on that now.

                However, I believe you are misinformed, because I think the health insurance is more like the income tax than it is like a capitation (or "poll") tax, because it will be variable and not a flat fee per person.

          •  Listen to Zappa (3+ / 0-)
            Recommended by:
            MD patriot, bigchin, kyril

            Joes' Garage.  The concept of Total Criminality is upon us and Frank predicted it 30 years ago.  

            Democrats have the electrolytes we need!

            by Nada Lemming on Thu Dec 17, 2009 at 09:31:17 AM PST

            [ Parent ]

            •  watch the Zappa video (2+ / 0-)
              Recommended by:
              kyril, Nada Lemming

              Medicare for All, that is the REAL public option that only needs 50 votes + Biden.

              by MD patriot on Thu Dec 17, 2009 at 09:34:35 AM PST

              [ Parent ]

              •  wiki on Frank Zappa (2+ / 0-)
                Recommended by:
                kyril, Nada Lemming

                Act I

                The opera begins with the Central Scrutinizer's introduction. He has no real character, but goes on to explain that his job is to enforce laws which will be passed in the forthcoming illegalization of music. The Scrutinizer offers a "special presentation to show what can happen to you if you choose a career in music," introducing the opera's protagonist, Joe, who used to be a "nice boy" and cut his neighbors' grass. When he discovered rock music, he would spend all his time playing loud music in his garage, where the neighbors would often call the cops on him. A "friendly counselor" at the police department gives him a donut and tells Joe he should "stick closer to church-oriented social activities." Joe finds a new girlfriend named Mary, with whom he would "hold hands and think pure thoughts." However, Mary, a Roman Catholic girl, abandons Joe in order to get a pass to see a band called "Toad-O" with whom she goes on the road—having sex with the band's roadies. Eventually, they abandon her in Miami when she is too tired to do anything. Mary enters a wet t-shirt contest to try to make enough money to get back home. Joe hears of her exploits, becomes depressed, falls in with a fast crowd, and has sex with a girl who works at the Jack-In-The-Box named Lucille, who gives him an "unpronounceable disease", although he claims it came from a toilet seat.

                This is perfect- just make rock music illegal!  Then we'll all be criminals!

                Medicare for All, that is the REAL public option that only needs 50 votes + Biden.

                by MD patriot on Thu Dec 17, 2009 at 09:37:53 AM PST

                [ Parent ]

            •  Zappa knew of what he spoke...... (2+ / 0-)
              Recommended by:
              KnotIookin, Nada Lemming

              "The illusion of freedom will continue as long as it's profitable to continue the illusion. At the point where the illusion becomes too expensive to maintain, they will just take down the scenery, they will pull back the curtains, they will move the tables and chairs out of the way, and you will see the brick wall at the back of the theatre." - Frank Zappa

          •  Perhaps they will send us to Gitmo nt (1+ / 0-)
            Recommended by:
            kyril

            "We are tired of war," he said. "We don't want it anymore."

            by allenjo on Thu Dec 17, 2009 at 09:49:47 AM PST

            [ Parent ]

          •  A question... (0+ / 0-)

            What is the real difference between being forced to buy insurance from a private company versus being forced to buy insurance from the government?

            My broader point is that the public option that everyone supported was going to be open to a very limited segment of the population, and was going to use negotiated rates, therefore giving it similar premiums to private insurance. Assume that this option was still in the bill, but you were not one of those couple million able to access it. Would you still be railing against this bill and declaring those mandates unconstitutional?

            It makes little sense to me how dropping this one provision transmutes a progressive reform bill into a POS giveaway to insurance companies.

            "How poor are they that have not patience! What wound did ever heal but by degrees?"

            by Cure7802 on Thu Dec 17, 2009 at 11:59:42 AM PST

            [ Parent ]

    •  Um... (4+ / 0-)
      Recommended by:
      Sparhawk, mmacdDE, kyril, MPociask

      The IRS can throw in jail for non-payment of taxes.  If you don't pay for health insurance, then you are FINED.  What happens when you don't pay the fine.  Congress is not imposing a 'tax on everyone'.  They are forcing you to buy insurance and then proving that you have it.  Are you saying that the premiums will first go through the treasury?  Yikes.  That is just asking for abuse in the future.  I don't understand how you can consider a premium payment a 'tax' if it doesn't go through the treasury first.

      To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

      by RichM on Thu Dec 17, 2009 at 08:59:25 AM PST

      [ Parent ]

    •  Oh mr. william trial lawyer wrong on so (5+ / 0-)
      Recommended by:
      eugene, Planet B, mmacdDE, xaxado, NYlawyer

      MANY accounts.  congress can tax to go to the commons and support of the operations of governing.  It cannot mandate payment to private enterprise.  

      Sorry - can't do it - no matter what.  This will be the first challenged plain and simple.

      Takin it to the streets....Doobie Brothers

      by totallynext on Thu Dec 17, 2009 at 09:12:42 AM PST

      [ Parent ]

    •  That's funny (3+ / 0-)
      Recommended by:
      bigchin, kyril, h bridges

      When, months ago, I said that this was in effect a tax (but was probably constitutional on that basis), people here said that I was spouting right-wing talking points.

      Which talking point is the right-wing one: that it's unconstitutional or that it's a tax?  It probably has to be either one or the other.

      My current belief is that its constitutionality simply has not yet been determined.

      •  Agreed (4+ / 0-)
        Recommended by:
        bigchin, kyril, h bridges, MPociask

        The constitutionality is undetermined.

        However, the mandate is quite clearly NOT a tax, for two reasons:

        1. It is paid to a private company and not the government
        1. It is a purchase of a good or service, and not a levy made without regard of ability to pay.

        I'm not part of a redneck agenda - Green Day

        by eugene on Thu Dec 17, 2009 at 09:53:02 AM PST

        [ Parent ]

        •  not that the diarist said shit on it; however (0+ / 0-)

          the linked analyses seem to contemplate that the strongest argument for constitutionality is that the mandatory insurance scheme is a tax.

          But to get there, they suggest doing things like

          - destroying all state and local regulation of medical insurance, and

          - having an exemption for folks who have a firm religious belief that God requires them not to carry health insurance

          Constitutional law is batshit crazy if that's what it takes to make forced insurance constitutional.

          Maybe we should start the Keith Olbermann Is God religion.

        •  That's not the issue (0+ / 0-)

          the issue is the tax the Gov. imposes if you don't have insurance. Which is not used to purchase a good or service. It goes into the general fund.

    •  Thank God (2+ / 0-)
      Recommended by:
      elmo, sherijr

      for some rationality here.

      People are repeating Heritage/Federalist Society nonsense on a regular basis here.  It is unbelievable.

      And here is how you can tell they are full of it: they never cite a case in their arguments.  They make arguments completely divorced from the case law.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Thu Dec 17, 2009 at 09:35:20 AM PST

      [ Parent ]

      •  That just means (2+ / 0-)
        Recommended by:
        kyril, tr GW

        We need to find progressive arguments to assert the unconstitutionality of this.

        Instead of citing Tenthers, maybe we should make an argument about the Constitution not being a document intended to force people to give money to the private sector, as it is instead a compact between the people and their government.

        I'm not part of a redneck agenda - Green Day

        by eugene on Thu Dec 17, 2009 at 09:53:57 AM PST

        [ Parent ]

        •  eugene, you're just wrong (1+ / 0-)
          Recommended by:
          sherijr

          The mandate says that you either buy a certain kind of insurance, or pay a tax directly to Uncle Sam.

          Ok, so I read the polls.

          by andgarden on Thu Dec 17, 2009 at 09:55:24 AM PST

          [ Parent ]

          •  And I'm saying (2+ / 0-)
            Recommended by:
            kyril, tr GW

            That's an unprecedented situation, a new concept. Proponents need to show their reasoning as to why this is Constitutional, just as opponents need to explain why it is unconstitutional (should they choose to make a constitutional argument at all).

            I'm not part of a redneck agenda - Green Day

            by eugene on Thu Dec 17, 2009 at 09:56:44 AM PST

            [ Parent ]

            •  No, it isn't (4+ / 0-)

              It's almost exactly the same as the charitable deduction.

              And what do you mean "proponents need to show?" As a legal matter, legislation is presumed Constitutional.

              Ok, so I read the polls.

              by andgarden on Thu Dec 17, 2009 at 09:59:05 AM PST

              [ Parent ]

              •  No, it's not (2+ / 0-)
                Recommended by:
                eugene, furiousxxgeorge

                The charitable deduction is a deduction that reduces an established, Constitutionally-protected tax (the income tax) if the taxpayer freely engages in an optional transaction.

                This implements a new tax of a new sort - a flat, per-person head tax - with the intent to coerce people to enter into a specific sort of private contract.

                Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

                by kyril on Thu Dec 17, 2009 at 10:13:26 AM PST

                [ Parent ]

    •  Wickard v. Filburn (3+ / 0-)

      The Supreme Court in that case upheld the constitutionality of a law that told a farmer what he was permitted to grow on his farm.  While he was free to grow nothing at all, I still don't see how that's much less of a curtailment on individual freedom than the individual mandate.  I'm as opposed to the mandate as anyone, but I've never agreed with the constitutionality argument.  However, I do disagree with you on one point.  This would be even less an issue with the presence of a public option.  Then, this would fall more squarely under the taxing power, as we would simply be forced to pay the government for a social program.

      •  Lopez and Morrison (1+ / 0-)
        Recommended by:
        furiousxxgeorge

        Wickard dealt with Congress ability to regulate an intrastate economic activity that had a substantial affect on the interstate wheat market. Gonzales v. Raich dealt with the same situation.

        In Lopez and Morrison, the Court said that it would not aggregate the effects of non-economic activity. If you can't aggregate non-economic activity, you can't show a substantial affect on interstate commerce which is needed for Congress to regulate wholly intrastate activity.

        Simply living in the United States is not an economic activity. If that were the case, Congress could mandate individuals to buy anything and everything because by not buying something, the interstate market in that commodity is undermined.

        I doubt the individual mandate's constitutionality under the commerce clause. I'm sure that Congress could use their taxing and spending power though.

    •  Is it a poll tax? (0+ / 0-)

      Just kidding :)

      Life's little instruction book "Loosen up. Wear audacious underwear under the most solemn business attire.".

      by Luetta on Thu Dec 17, 2009 at 09:42:23 AM PST

      [ Parent ]

      •  Interesting angle (2+ / 0-)
        Recommended by:
        furiousxxgeorge, neroden

        Unfortunately I'm quite certain no court would buy this argument, but the fact is that if you don't pay this tax, in many states you could lose your right to vote. Given that it's a "flat" per-person tax conditioned only on being alive in the U.S., it sounds like a poll tax to me.

        Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

        by kyril on Thu Dec 17, 2009 at 10:17:29 AM PST

        [ Parent ]

        •  Doesn't that make it a non-income-tax too? (3+ / 0-)
          Recommended by:
          furiousxxgeorge, Catesby, kyril

          And as such a direct tax subject to the "proportional to state population" clause?

          Or is the penalty not actually flat, but a percentage of income?  I'm quite sure that would be constitutional.

          -5.63, -8.10. Learn about Duverger's Law.

          by neroden on Thu Dec 17, 2009 at 11:30:43 AM PST

          [ Parent ]

          •  I keep hearing the $750 figure (2+ / 0-)
            Recommended by:
            neroden, Catesby

            Somebody correct me if I'm wrong. I understand that you can be exempt by being too poor, but I haven't heard anything to imply it scales with income (which would be Constitutional, I agree).

            Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

            by kyril on Thu Dec 17, 2009 at 11:38:56 AM PST

            [ Parent ]

    •  Thank you for this diary (6+ / 0-)
      I hate the mandate with the white hot intensity of 100,000 fiery suns, but it's not unconstitutional.  I've been saying this ever since some on the left started to throw that around and it's nice to see someone who agrees.  

      Too many people--this used to be the exclusive province of the right, but now I'm seeing it on the left--use the word "unconstitutional" to describe "Wow this is a shitty idea and I hate it."

      "Raybin is not a lying maniac. I've found this person to be an extremely clever and devious lying conartist, but never a maniac."--RElland on Daily Kos

      by Raybin on Thu Dec 17, 2009 at 09:42:56 AM PST

      [ Parent ]

      •  That's true, but (3+ / 0-)
        Recommended by:
        Raybin, kyril, tr GW

        That doesn't necessarily mean this IS constitutional.

        We're entering uncharted waters here. I can't recall an example from history where people were forced to buy a product from the private sector. I'm pretty sure the Constitution doesn't offer clear guidance on this, so to me that means the proponents of a mandate are just as much under a burden to show where this is permitted as the opponents are under a burden to show where this is not permitted.

        I'm not part of a redneck agenda - Green Day

        by eugene on Thu Dec 17, 2009 at 09:55:40 AM PST

        [ Parent ]

        •  You raise a good point (1+ / 0-)
          Recommended by:
          elmo

          I have no doubt someone is going to take the mandate to court and that it'll eventually bubble its way up to the Supremos and they'll have to make a judgment call.  Should be interesting.

          I'm not a proponent of a mandate as you know, but I believe the interestate commerce and the necessary and proper clauses offer considerable room to maneuver and argue mandates are constitutional, even if they're a bad idea.

          "Raybin is not a lying maniac. I've found this person to be an extremely clever and devious lying conartist, but never a maniac."--RElland on Daily Kos

          by Raybin on Thu Dec 17, 2009 at 10:09:20 AM PST

          [ Parent ]

          •  But if this is Constitutional (3+ / 0-)
            Recommended by:
            eugene, furiousxxgeorge, neroden

            then it's also Constitutional to mandate that every citizen go buy a new American car each year (due to the compelling state interest in the survival of the auto industry, under the Commerce clause) and impose a punitive fine administered by the IRS for those who do not. It's Constitutional for the fine to be as big as Congress wants it to be, without regard for the taxpayer's income.

            And it's Constitutional for non-carbuyers who can't or won't pay the fine (which Constitutionally could be tens of thousands of dollars, if this sort of non-income-based tax is acceptable) to be bankrupted or go to prison, where they'll lose their right to vote, and can Constitutionally be compelled to work for pennies while being charged twice as much as they earn for their room and board by a private company, thus completing the spiral into indentured servitude.

            Is that the country you want to live in?

            Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

            by kyril on Thu Dec 17, 2009 at 10:24:22 AM PST

            [ Parent ]

            •  An interesting point you make, as always (4+ / 0-)
              Recommended by:
              Raybin, neroden, kyril, tr GW

              We should absolutely consider the precedent this sets.

              I'm not part of a redneck agenda - Green Day

              by eugene on Thu Dec 17, 2009 at 10:26:14 AM PST

              [ Parent ]

            •  Not at all a country I want to live in (2+ / 0-)
              Recommended by:
              kyril, MPociask

              But as of right now, the Constitution has not been interpreted to suggest any of those things are unconstitutional.

              I certainly HOPE mandates are found to be unconstitutional of course.  But as of right now?  Don't see how they can be considered that way.

              "Raybin is not a lying maniac. I've found this person to be an extremely clever and devious lying conartist, but never a maniac."--RElland on Daily Kos

              by Raybin on Thu Dec 17, 2009 at 10:33:24 AM PST

              [ Parent ]

              •  Hence my original comment (2+ / 0-)
                Recommended by:
                Raybin, furiousxxgeorge

                that if it's not unconstitutional, it ought to be (for which I got called a teabagger).

                Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

                by kyril on Thu Dec 17, 2009 at 10:36:10 AM PST

                [ Parent ]

              •  9th amendment folks. (1+ / 0-)
                Recommended by:
                VA Classical Liberal

                I think the 9th amendment rather prohibits forcing people to go out and buy cars.....

                But then I always thought it prohibited forcing people to fill out forms they were incapable of comprehending due to complexity.

                In many European countries the government computes your tax for you after you submit your income, unless you're running a serious business.

                -5.63, -8.10. Learn about Duverger's Law.

                by neroden on Thu Dec 17, 2009 at 11:32:37 AM PST

                [ Parent ]

                •  Why cars (0+ / 0-)

                  but not health insurance?

                  Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

                  by kyril on Thu Dec 17, 2009 at 11:52:39 AM PST

                  [ Parent ]

                  •  Eh, there's probably some argument about the (0+ / 0-)

                    public good being served.  I would probably agree that it should be unconstitutional but when you're dealing with the 9th amendment you have to appeal to tradition and so forth: the argument that health insurance is "special" and tradition doesn't apply works better than the argument that cars are "special".

                    I wonder if there were ever private fire departments which people were required to pay for.  It would be an interesting thing to look up in the history books.

                    -5.63, -8.10. Learn about Duverger's Law.

                    by neroden on Thu Dec 17, 2009 at 11:59:25 AM PST

                    [ Parent ]

                    •  But I already explained (1+ / 0-)
                      Recommended by:
                      neroden

                      that there's a compelling state interest in keeping the auto manufacturing industry afloat. It'd be a pretty strong case under the commerce clause - after all, the auto manufacturing business employs vast numbers of people in many states and is the focal point of a huge amount of related economic and manufacturing activity.

                      And people need their own cars, or they'll just freeload on tax-funded public transportation or other people's cars when they have an emergency, and besides, if they don't have cars they're not adequately funding the highway system they rely on to deliver their groceries and their mail. Oh, and they need new cars, because old cars don't meet our updated emissions and noise standards. And if everyone's buying cars, that'll reduce the cost for people who really need them, because of economies of scale.

                      Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

                      by kyril on Thu Dec 17, 2009 at 12:10:07 PM PST

                      [ Parent ]

                      •  It would be quite a fight... (1+ / 0-)
                        Recommended by:
                        kyril

                        So far the only 9th amendment cases to have been won with opinions actually citing the 9th amendment related to contraception and abortion -- the primary line from Griswold.  Other cases where it has been implied include right-to-travel cases (you cannot be tied to your land like a serf) and other horrific impositions on liberty.

                        9th amendment jurisprudence is enjoying a nice revival -- along with the natural rights concept much maligned by some courts -- and I would enjoy seeing 'refusal to engage in commerce with a particular private company' established along those lines.

                        But it would be quite a fight and we'd never get it through the intellectual descendants of "inkblot" Bork.

                        -5.63, -8.10. Learn about Duverger's Law.

                        by neroden on Thu Dec 17, 2009 at 12:22:11 PM PST

                        [ Parent ]

    •  Are we sure about this? (4+ / 0-)
      Recommended by:
      jlynne, bigchin, xaxado, kyril

      What is the Constitutional basis for making someone purchase a product from the private sector?

      Such a requirement does not exist anywhere else in this country. Single-payer isn't an accurate comparison, because nobody is buying anything - you pay your taxes as usual, and get access to a service, as usual.

      It's not at all a right-wing argument to ask "where in the Constitution is this permitted?"

      I'm not part of a redneck agenda - Green Day

      by eugene on Thu Dec 17, 2009 at 09:50:09 AM PST

      [ Parent ]

    •  Embarrassed by how stunningly wrong you are? (2+ / 0-)
      Recommended by:
      bigchin, NYlawyer

      You should be.

      I guess you went to law school, but that's not reflected in this "analysis".

      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 Thu Dec 17, 2009 at 09:51:12 AM PST

      [ Parent ]

    •  So, how many Federalist Judges on the SC (0+ / 0-)

      and at the Federal level? Quite a few.

      A bit hasty, I think, in saying it is or is not Constitutional. If it passes it will be challenged and eventually we will have an answer. This decision will have as much to do with the politics of the Justices sitting on the Court as it does any legal argument, in my view.

    •  This is very informative (2+ / 0-)
      Recommended by:
      elmo, sherijr

      and I thank you for the diary.

    •  Angry liberals agree with enraged conservatives (2+ / 0-)
      Recommended by:
      furiousxxgeorge, neroden

      There is another way to interpret such a situation: the bill must be pretty fucking bad, and electoral suicide.

      How about "Neo-Feudalism?"  Can I say that without being called a tea-bagger?  

      Or perhaps Emptywheel is now a tea-bagger.

      But none of these egregious instances of corporations dictating legislation included a tithe–the requirement that citizens pay corporations to provide their service, rather than allowing the government to contract the service.

      This is a fundamentally different relationship we’re talking about–one that gives corporations vast new powers. And the fact that–with one temper tantrum from Joe Lieberman–the corporations were able to dictate the terms of this new relationship deeply troubles me.

      When this passes, it will become clear that Congress is no longer the sovereign of this nation. Rather, the corporations dictating the laws will be.

      The pleasure of watching Rahm being hoisted by his own petard as Dems face a disaster at the ballot box will not be worth the pain of watching the country fall into conservative hands.

      FDR: I welcome their hatred. Obama: I welcome their advice.

      by geomoo on Thu Dec 17, 2009 at 10:40:19 AM PST

      [ Parent ]

    •  Thank you, wmtriallawyer. (3+ / 0-)
      Recommended by:
      wmtriallawyer, Deoliver47, sherijr

      I find it simultaneously frustrating and hilarious when people on the right, and sometimes the left, try to play lawyer, labeling this and that as unconstitutional.  Interpreting the Constitution requires reading and understanding 200+ years of Supreme Court opinions and related commentary.  Nearly every key word and phrase has been interpreted to mean something very specific, oftentimes much more than, or much different from, what you'll find in Webster's Dictionary.  Reading Article I, Section 8 and looking for the words "health care," like these morons do, couldn't be less relevant.

      If you don't like a proposed law, argue that it's a bad law that would have bad consequences.  That's constructive.  But don't think that every bad idea must be unconstitutional.  What's unconstitutional?  Not nearly as much as a layperson would think.

      •  Well, partly this is really the courts' fault. (0+ / 0-)

        The systematic, deliberate, and abusive misinterpretation of the 13th/14th/15th amendments during Reconstruction has been documented by others, and has made a mess of 14th amendment jurisprudence in particular.  

        This explains why things "were" unconstitutional under the 14th amendment and then later they "weren't" and then later they "were" again.  :-P  A Platonist would generally say they were always unconstitutional or constitutional and some of the courts were wrong.

        In contrast, a legal realist would say that government-sponsored torture is constitutional and so is government-run domestic spying without court supervision, and also government kidnapping and imprisonment of US citizens without trial -- because this has all happened with the courts' acquiescence.  The rest of us would say the courts are wrong.

        -5.63, -8.10. Learn about Duverger's Law.

        by neroden on Thu Dec 17, 2009 at 12:04:01 PM PST

        [ Parent ]

    •  Rrrm, what about the direct tax issue? (0+ / 0-)

      It's not clear to me that the tax being imposed qualifies as an income tax.  If it doesn't qualify, doesn't it have to be proportioned according to state populations?  :-/

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Dec 17, 2009 at 11:27:56 AM PST

      [ Parent ]

    •  wmtriallawyer, have ANY of the law profs answered (0+ / 0-)

      the question about whether this is a direct tax and as such required to be levied in proportion to state populations?

      It sure doesn't appear to be an income tax if it's a flat fee.

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Dec 17, 2009 at 11:42:27 AM PST

      [ Parent ]

  •  why argue Constitution when there are pragmatic (28+ / 0-)

    arguments?

    Like:
    Forcing people to buy crap is bad policy and bad politics.

    "The Universe is change; our life is what our thoughts make it." Marcus Aurelius

    by Mosquito Pilot on Thu Dec 17, 2009 at 08:40:14 AM PST

  •  we've definitely lost something (8+ / 0-)

    affordable health care.  But on the bright side, the Global War on Terror is now Underwriting Global Security, so that's a win.  Right?

  •  Yeah I've never understood that argument (5+ / 0-)

    Although I suppose there might be additional arguments that aren't based on the Commerce Clause.  Perhaps a Fifth Amendment argument? That I am having a difficult time envisioning?

  •  there's another court involved (7+ / 0-)

    the court of public opinion. For better or worse it usually trumps the other one.

  •  It's certainly constitutional. (14+ / 0-)

    That isn't my argument against it at least. My argument is that it is bad politics and bad policy.

    But is it constitutional? Certainly.

  •  stopped clock, etc (8+ / 0-)

    i'm not a constitutional scholar so i won't speak to that issue.

    but it is anti-capitalistic.  i'm a pretty liberal guy, but i believe in the power of consumers and a free (and fair) market.  for the government to tell me that i have to purchase a product that's already exempt from anti-trust laws gives insurance companies no incentive to improve their product and save lives.  it gives other companies every incentive to lobby for anti-trust exemptions, legislate their way into a mandate, and abandon capitalism.

    WARNING: THIS COMMENT MAY OR MAY NOT CONTAIN SARCASM.

    by the disinfector on Thu Dec 17, 2009 at 08:51:49 AM PST

  •  What a shame that this sane diary (10+ / 0-)

    has little chance of getting anywhere near the rec list today.  This is the week of Hyperbolic Outrage Fantasy Blogging.

  •  Mr. Healthy (3+ / 0-)
    Recommended by:
    Planet B, xaxado, CherryTheTart

    go pick something from Mr. Aetna or Mr. Cigna  or pay a tax.

    Mr. Black
    go pick some cotton from Mr. Aetna or Mr. Cigna plantations or pay a tax.

    Involuntary servitude is unconstitutional.

  •  is there a precedent ? (7+ / 0-)

    the requirement that a private citizen be REQUIRED irrepective of choices or position -- to purchase a Private Corporation's product?

    i'll read the paper You linked to ... but there is something in this that just doesn't seem to sit right to me?

    and extending the complicating factor of this -- is that My mandated purchase of that Private Corporation's product HAS to be profitable for that corporation?

    i just feel like i am seriously missing something here?

    "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

    by josephk on Thu Dec 17, 2009 at 08:56:10 AM PST

    •  Unprecedented Isn't the Same as (6+ / 0-)

      "Unconstitutional" either.

      You disagree with his conclusion that Obama is a boot licker...give examples where this can be shown to be false. -- Dumbest Poster in dKos History

      by TooFolkGR on Thu Dec 17, 2009 at 08:58:44 AM PST

      [ Parent ]

      •  fair point (8+ / 0-)

        but then claiming "it is NOT unconsitutional" when there has been no challenge is kind of an argument in the other direction as well then

        if there isn't case law on this -- and no challenge -- then stating it one way or another is equally bold -- at least, as far as i can see in this case ...

        "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

        by josephk on Thu Dec 17, 2009 at 09:01:26 AM PST

        [ Parent ]

        •  Good point... (3+ / 0-)
          Recommended by:
          TooFolkGR, xaxado, kyril

          The legal system is based on president.  Right now, all we have is interpretation.  At this point, we don't really know until it has been tested.  It isn't Constitutional or un-Constitutional until SCOTUS says it is.

          To the WH: "It's your job to f*ck-up power; it's Fox's job to f*ck-up truth.' - Jon Stewart

          by RichM on Thu Dec 17, 2009 at 09:05:59 AM PST

          [ Parent ]

        •  Not Really (4+ / 0-)

          A fundamental principle in constitutional law as it relates to legislative enactments is that they are presumed constitutional unless and until it is shown that they are not.  The Legislature is presumed not to have meant to undertake an act in derogation of the constitution and a court reviewing a legislative act must avoid a finding of unconstitutionality unless it truly cannot do so.

          So to say that somehow because a law hasn't been challenged that it is not constitutional is technically correct.

          If you don't stand for something, you will go for anything. Visit Maat's Feather

          by shanikka on Thu Dec 17, 2009 at 09:14:53 AM PST

          [ Parent ]

          •  i would agree as a general principle (1+ / 0-)
            Recommended by:
            kyril

            which is why i was a bit sneaky (presuming that Your argument would be presented as a counter)

            at least, as far as i can see in this case ...

            there seem to be issues involved here that look at first to be so outside of the normal legislative process ... if it Does pass -- i don't think anyone will be surprised at a constitutional challenge -- and i would be hard pressed to guess at what the outcome of the SCOTUS to be ...

            "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

            by josephk on Thu Dec 17, 2009 at 09:30:06 AM PST

            [ Parent ]

        •  Corportate Personhood. (3+ / 0-)
          Recommended by:
          josephk, kyril, sherijr

          Shanikka brings up the presumption of constitutionality argument, and the diarist makes the point of the commerce clause and taxation powers. Both are correct.

          But I rest its constitutionality on something that is also pretty concrete: corporate personhood.

          Under the law, corporations are currently mandated to do a lot of things, with non-compliance resulting in fines. Issues regarding personhood notwithstanding, if a "corporate" person can be mandated to do things under the law, it stands to reason human persons can as well.

          •  that is so incredibly disturbing (2+ / 0-)
            Recommended by:
            brooklynbadboy, kyril

            the whole "corporate personhood" - i grant You the logical support of Your argument ... but the implication of it just makes me want to vomit!

            "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

            by josephk on Thu Dec 17, 2009 at 09:49:38 AM PST

            [ Parent ]

  •  ahh, but . . . (7+ / 0-)

    Notice anything about what came up as links? If you were paying attention, you'll notice the Federalist Society, the Heritage Foundation, are other like-minded conservative organizations pushing the talking point that the mandate in the health care bill is somehow unconstitutional.

    Why do I bring this up

    -- well, our current SCOTUS is awfully friendly with the Federalist Society, the Heritage Foundation, and other like-minded conservative organizations.

    So even if the mandates are not unconstitutional, I'd be less than certain our current SCOTUS would rule accordingly.

  •  Thank you (7+ / 0-)

    The don't-worry-the-mandates-are-unconstitutional argument that was repeated around these parts was giving me gas and making me queasy. If the mandates were truly going to be unconstitutional, then they would not have been put in the bill in the first place because it would be low hanging fruit for progressives in the House and Senate.

    I hope this makes to the rec list (although it is amusing to see 10 diaries on the list slamming the Senate bill).  The bottom line is that there is nothing in the constitution that prohibits us to be sold into unregulated private insurance slavery. Thanks for the reality test.

    The uninsured keep dying. Death to AHIP!

    by DWG on Thu Dec 17, 2009 at 08:59:26 AM PST

  •  Oh Thank You (7+ / 0-)

    Thank you thank you thank you.

    Yesterday, I let myself get drawn into trying to argue on the legal merits with someone who claimed to have been writing legal briefs including at the Supreme Court level for 30 years who insisted that it was unconstitutional.  When he cited a case that clearly was in no way connected to the argument he tried to make, I looked up his profile.  Which turns out to be a wiki page, in which he alleges that he was an original member of Devo, and but has for some time been a "legal consultant."  (No mention of a law license to go with that claim.)

    Suffice it to say, that was the end of my time wasting.

    It's just as I tried to explain in the face of the cries that Stupak-Pitts was unconstitutional:  our constitution simply does not prohibit the things that most people think it does.  Or think it should.  Do I like it? Hell no, and I've been a lawyer a long time.  But it is what it is and wasting energy going down the primrose path of a constitutional attack is doomed to failure.

    If you don't stand for something, you will go for anything. Visit Maat's Feather

    by shanikka on Thu Dec 17, 2009 at 09:02:59 AM PST

    •  Did he also invent the piano tie? (1+ / 0-)
      Recommended by:
      shanikka

      That's so amazing...

      "Even if you are a minority of one, the truth is the truth." - Gandhi

      by mahakali overdrive on Thu Dec 17, 2009 at 09:46:04 AM PST

      [ Parent ]

    •  There is a better argument regarding Stupak-Pitts (1+ / 0-)
      Recommended by:
      kyril

      than there is the mandates. While I don't think that Stupak-Pitts would be unconstitutional, the argument there is that the test laid out by SCOTUS is the "undue burden" test, and it could at least be argued that the nature of the amendment, combined with the mandates, would create an undue burden.  Now, I don't think the argument holds much water, but at least there is an argument to be made because of the test the SCOTUS has previously set up.

      The responsibility of a great state is to serve and not to dominate the world--President Harry S. Truman (April 16, 1945)

      by TomK002 on Thu Dec 17, 2009 at 09:47:50 AM PST

      [ Parent ]

  •  You're absolutely 100% right (2+ / 0-)
    Recommended by:
    shanikka, Same As It Ever Was

    It is clearly not. unconstitutional.

    To argue that it is is to reassert some of the ugliest element of Lochner IMO.

    Without a public option, however, it is bad policy.

    Ok, so I read the polls.

    by andgarden on Thu Dec 17, 2009 at 09:04:22 AM PST

  •  Nice to see logic make an appearance (5+ / 0-)

    What is baffling to me is that this bill was perfectly acceptable when it contained a weak public option that only a couple million people would be eligible for (and that likely would have had higher premiums than private insurance). Suddenly though, this same bill turns into a massive giveaway to the insurance companies when this option goes away? This makes little sense.

    Some folks could benefit from a deep breath, a long walk, and time away from the intertoobs.

    •  Thank you (1+ / 0-)
      Recommended by:
      TomK002

      The debate simply degenerated beyond the sum of the merits of its policy parts. Some Progressives really wanted an ideological victory on this legislation, and have realized it is shaping out to be a bitter sweet pill. I hope we can recover to get a handle on what Republicans would have been cheering had they managed to ge any of their signature policy agendas this far adn this close to passage, such us Repealing Roe v. Wade, or a Consitutional Amendment to ban Gay marriage, or Dismantle Social Security.

      I wonder, all our tax dollars go to purchase defense weapons systems from oprivate companies. I know it isn't exactly the same thing, but the argument that we'll be shelling our money to an obnoxious private industry, is strange since we already do that anyway.

      "What the cynics fail to understand is that the ground has shifted beneath them." -- Pres. Obama (1/20/2009)

      by zizi on Thu Dec 17, 2009 at 09:26:25 AM PST

      [ Parent ]

  •  Great. so Dems are raising taxes on EVERYONE!!! (3+ / 0-)
    Recommended by:
    ssgbryan, ManhattanMan, kyril

    That's the problem. Rethugs will call it a tax on everyone, and it's true. To use the IRS for compliance, one must raise taxes, and then provide a exemption for those with insurance.

    Just feeds the meme of "Tax and Spend" librul.

  •  It is unconstitutional. (0+ / 0-)

    It is a public taking without fair compensation and without dur process.

    The government cannot take anything away from you and give to another. If they take it for government purposes they have to give you fair compensation. Giving the mandated people an inadequate health insurance policy is not fair compensation.

    Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning.

    by hestal on Thu Dec 17, 2009 at 09:04:50 AM PST

  •  I <3 Wm eom (2+ / 0-)
    Recommended by:
    mahakali overdrive, Eclectablog

    If the demand is fulfill ideals to the letter now or stop having them, we divide the limits of reality & vision for tomorrow. Then politics becomes cynicism

    by pvlb on Thu Dec 17, 2009 at 09:05:25 AM PST

  •  Thanks... (3+ / 0-)
    Recommended by:
    Adam B, BachFan, IL JimP

    It seems within the powers of the federal govt. As for individuals rights based challenges --

    My understanding is that Flast is still good law re taxpayer standing on free exercise grounds and tht RFRA still applies to federal legislation?  So I assume there'll be an exemption for religious reasons in the Senate Bill.  Meaning there's not much of rights-based argument at that point, assuming the bill covers everyone, which it apparently does.

    Maybe a lot of people will become Amish if the mandates become law?

    y el canto de todos que es mi propio canto

    by gatorbot on Thu Dec 17, 2009 at 09:06:28 AM PST

  •  It's unconstitutional if (2+ / 0-)
    Recommended by:
    ManhattanMan, kyril

    the Supreme Court says it's unconstitutional.  Is the OP prepared to predict what this court will do?  Let's see that analysis.

  •  It's like the Left became the Right (6+ / 0-)

    I was so freaked out yesterday reading this talking point and actively arguing with it. Granted, the thing needs cost controls, and it should be a popular tax, otherwise it hurts people. But barring those two issues, in and of themselves, an actual mandate for a private service is like a tax, just like a tax.

    I admit I tune out a little when Democrats start calling a tax unconstitutional! Say this tax is an unpopular, overpriced, and bad tax. But don't say it's against our constitution. It's such a right-wing idea.

    There are tons of private things we pay for that we are effectively "mandated" to buy -- food, shelter, clothing, property tax... that are not like auto insurance.

    Taxes at the end of the year themselves, for citizenship in this country.

    So thanks for this diary, wmtriallawyer.

    I absolutely feel that this health care bill is flawed, as it stands. And I oppose these unpopular and uncontained mandates (specific to this bill). But there is nothing unconstitutional or even ethically wrong about taxation of a service for a general fund that then is reallocated for social services: belief in this is part of what defines Democrats, really.

    "Even if you are a minority of one, the truth is the truth." - Gandhi

    by mahakali overdrive on Thu Dec 17, 2009 at 09:10:06 AM PST

    •  asdf (0+ / 0-)

      If the demand is fulfill ideals to the letter now or stop having them, we divide the limits of reality & vision for tomorrow. Then politics becomes cynicism

      by pvlb on Thu Dec 17, 2009 at 10:13:25 AM PST

      [ Parent ]

    •  Really? (1+ / 0-)
      Recommended by:
      NYlawyer

      Dude - look at what you are saying. Look closely, and then tell me if you are at all qualified to make or understand a legal argument:

      ...an actual mandate for a private service is like a tax, just like a tax.

      "Like a tax" is not the same as "a tax." Are we discussing public policy, or figures of speech?

      There are tons of private things we pay for that we are effectively "mandated" to buy -- food, shelter, clothing, property tax...

      This "argument" is, to put it bluntly, rather stupid. The government doesn't force you to buy food or clothing as a condition of citizenship. Nor does it prevent you from saying "Fuck it," and moving out into the woods, Unabomber-style, and living in a shack while growing your own food.

      Not being a property owner, I have never paid a cent in property taxes - and I don't know how one would "buy" a property tax, in any event. Where did that nugget come from?

      Say this tax is an unpopular, overpriced, and bad tax. But don't say it's against our constitution. It's such a right-wing idea.

      Again, saying that this bullshit mandate is "like a tax" is very different from saying that it is a tax. You don't seem to know whether this mandate would be a tax, or something else that is merely "like" one.

      But the main question is when did it become "right-wing" to question the constitutionality of or otherwise oppose the government forcing citizens, as a consequence of citizenship and nothing else, to buy a product from a for-profit, non-governmental entity? These are "right-wing" positions?

      The fact of the matter is that the constitutionality of the mandate is unknown at present; wmtriallawyer hardly makes any case that it would indeed be constitutional and, in any event, s/he will not be the one deciding such a matter. Let him make a case before going along with his characterization of opponents of it as right-wing shills.

      "I like stories". - Homer

      by pinhead on Thu Dec 17, 2009 at 11:00:48 AM PST

      [ Parent ]

  •  Commerce (0+ / 0-)

    "the interchange of goods or commodities, esp. on a large scale between different countries (foreign commerce) or between different parts of the same country (domestic or internal commerce); trade; business"

    The American College Dictionary, 1967

    1. health care is not a good or commodity, it is a service.

    Commerce - > merchandise
    Commerce -> common

    I can't resell my mandated coverage.

    I can resell silver, copper, gold, wood, ships, barrels, etc.

  •  Sometimes conservatives are right (8+ / 0-)

    Using the government to force people to pay money to a corporation is fascist, plain and simple.  Progressives can and should agree with those conservatives who are true capitalists and thus decry the mandate.

    I realize that many on the right who decry the mandate now would be praising it if there were a Republican president, but thats their problem, not mine.

  •  Thanks for this. (5+ / 0-)

    I've gotten into this debate here recently and its frustrating.  I'm sure the "you must not be a very good lawyer because you disagree with my faulty and untrained view of constitutional law" crowd will be along any moment.

  •  Agree (4+ / 0-)

    I don't believe it is unconstitutional.  I just think, in the absence of some sort of public option, it is bad policy.

    "And the biggest self of self is, indeed, self." Mark Sanford

    by Paleo on Thu Dec 17, 2009 at 09:12:00 AM PST

  •  I tried to be supportive (4+ / 0-)

    of this bill, but I cannot and will not support a bill that has a mandate without a public option or a some type of forced price control on the insurance companies. I have called my senators (Leahy and Sanders), and I hope everyone else who feels like I do does the same. This really is a gift to the insurance companies. Shame on the senate and President Obama. This is why I consider myself an Independent, not a Democrat.

    •  Right, this is about cost containments (0+ / 0-)

      Otherwise it would be pretty good. It would probably look a lot like the Swiss system. It could possibly also resemble, in some ways, the Dutch system. But both have strong cost controls.

      "Even if you are a minority of one, the truth is the truth." - Gandhi

      by mahakali overdrive on Thu Dec 17, 2009 at 09:17:00 AM PST

      [ Parent ]

  •  Adair vs. U.S. (1908) (5+ / 0-)
    Recommended by:
    Sparhawk, burrow owl, mmacdDE, IvanR, Magster

    It is not within the functions of government...to compel any person in the course of his business and against his will, to accept or retain the personal services of another.

    Justice John Marshall Harlan
    209 U.S. 161

    The Great Quotations page 444

  •  If constitutional in theory, (4+ / 0-)
    Recommended by:
    Sparhawk, JuliaAnn, ManhattanMan, kyril

    is it still fair and just and nondiscriminatory, given that the results for different individuals would vary so widely? For instance, while paying normal taxes, we expect and get more or less equal treatment in our usage of schools, roads, etc. But in this health care reform package, the potential for widely differing results would seem to present different circumstances, in terms of resulting treatments, caps, premiums, etc., not to mention the broad array of possible loopholes to be exploited by the insurance companies, including setting their premiums.

    Are private companies constitutionally permitted to set tax rates for citizens?

    Just asking. Thanks.

  •  Sorry but,.. (4+ / 0-)
    Recommended by:
    Sparhawk, IvanR, kyril, Nada Lemming

    ...argument from association does not work.

    I don't care who else is saying it.  That's completely irrelevant.

    The fact of the matter is that it IS not OK for Congress to require me to buy a product from a private, for-profit company.

  •  OK, it just sucks (4+ / 0-)
    Recommended by:
    ManhattanMan, burlydee, kyril, washunate

    As the plan stands, left & right will unite to decry it as big gov't grabbing your money and handing it over to private corporations by force. And they'll be right.

    Reelect New York's Marriage Equality heroes. Give thanks here.

    by Scott Wooledge on Thu Dec 17, 2009 at 09:19:14 AM PST

  •  Okay. No mandate, because it's a POS. Happy now? (3+ / 0-)

    When an old man dies, a library burns down. --African proverb

    by Wom Bat on Thu Dec 17, 2009 at 09:23:23 AM PST

  •  Only STATES can require insurance (1+ / 0-)
    Recommended by:
    neroden

    That is quite clear, and THIS Supreme Court will not find the Interstate Commerce Clause sufficient enough power for Congress to impose the mandate.

    I'll be joining the ACLU or any other group seeking to block the mandates.

  •  Commerce Clause is Super-Elastic Bubble Plastic (3+ / 0-)

    The Commerce Clause has been stretch, munged and twisted so much over the years, that just about anything can fit under it and pass SCOTUS muster.

    Look at Article 1 Section 8 and show me an enumerated power that allows Congress to mandate purchase of anything.  Is it under their power to maintain a Navy?  Deal with Indians?  Build post roads?

    Results count for more than intentions do.

    by VA Classical Liberal on Thu Dec 17, 2009 at 09:25:31 AM PST

  •  Paul v. Virginia (0+ / 0-)

    75 U.S. 7 Wall. 168 (1869)

    Issuing a policy of insurance is not a transaction of commerce.

    http://supreme.justia.com/...

  •  Been There, Done That (1+ / 0-)
    Recommended by:
    IL JimP

    My local government requires every household to get trash service from a particular trash company. Nobody can opt opt. Nobody can choose their trash provider. The trash company is a private company. The city nor any private citizen gets to see their books or find out how much profit they are making, including how much they take in from redeeming recycleables.

    Additionally, the city contract with the trash company increases every yr based on the cost of living plus additional amounts if their fuel costs increase or some other cost (e.g.landfill tipping fees) increase. The city could choose a new exclusive provider after the contract runs out, but have chosen never to rebid the contract. And like other cities with this arrangement, few competitors exist after the contract has been in place for a while.

    Yeah they have the right to do this, but it still sucks.

    •  Your local government (2+ / 0-)
      Recommended by:
      neroden, MGross

      is a subdivision of a state.

      States have basically all power except that denied to them by the federal Constitution or their own constitution.

      •  State v Fed (2+ / 0-)
        Recommended by:
        neroden, kyril

        I am not a constitutional lawyer with expertise on this matter. I find the constitutional argument interesting.

        But I do know that it just seems wrong to mandate that everyone buy something from a particular private company. What makes it even suckier is that the private trash company got the exclusive  contract after they gave illegal campaign donations to the city council members who voted for the contract. Sure, the FPPC fined them. But that's just a civil fine and it is just the cost of doing business. The DA declined a criminal prosecution even though the FPPC investigators recommended it. It just seems to have a lot of parallels with where the health care bill is going.

        I do understand that there may be a difference between what is constitutionally allowed to the federal govt and to state and local govts.

    •  That's the action of your state, not Congress (4+ / 0-)
      Recommended by:
      neroden, bigchin, kyril, Tzimisce

      There is, I promise you, no federal law regarding whom you must pay to collect your trash.  By the way, it's probably construed as a local government tax or fee.

      •  each customer is billed except the city (1+ / 0-)
        Recommended by:
        kyril

        We are each sent an individual bill to pay.
        They do add a tax to the bill though.

        As part of the contract with the city to be the exclusive trash hauler, the trash company agreed to collect the city's trash for free, so all the rest of us are now paying for the city's trash as part of our mandated trash bill. That used to be a general fund expense paid by general fund revenue (property tax, sales tax, assorted fees, etc) but now it has been off-loaded to ratepayers. Vey unprogressive!

    •  You don't have to live there (1+ / 0-)
      Recommended by:
      bajadudes

      there's technically nothing compelling you to have a fixed address at all, much less one in your particular local community. You don't have the right to live anywhere in particular, except that as a citizen you have a right to live in the U.S. and probably in the state of which you're a resident (but don't, as the law currently stands, have the right to housing).

      Mandates based on exercise of a privilege (driving a car, living in a particular place, owning a home, renting a home, working, earning income, owning property) are different from mandates based on exercise of a right (being alive in the U.S., voting, refusing to incriminate oneself).

      Every horror committed by man begins with the lie that some man is not a man. - Jyrinx

      by kyril on Thu Dec 17, 2009 at 10:50:51 AM PST

      [ Parent ]

  •  All this serves to substantiate... (2+ / 0-)
    Recommended by:
    bigchin, kyril

    Is that people don't like it unless it is balanced with an equalizing force. Simple logic dictates as much.

    Slap happy is a platform.

    by averageyoungman on Thu Dec 17, 2009 at 09:27:40 AM PST

  •  I don't give a crap (5+ / 0-)

    if it's constitutional or not.  As an uninsured 53 year old with diabetes I am not going to be forced to buy a junk policy at inflated cost from a private scumbag insurance company that is then going to do it's darnedest to not pay for shit when the time comes.  Insurance companies are going to pull out every trick in the book to run endgame's around the noble but poorly implemented attempts at reform this current senate bill spells out.  Like I really have the fucking time or money to hire lawyers to fight their frivolous denials or bogus claims of fraud because I might have had a freaking pimple on my ass lanced 10 years ago.

    Screw them I will go to freaking jail if I have to.

    Strong public option or kill this monstrosity.

  •  The mandate backlash will bury the Democratic (9+ / 0-)

    Party so deep it'll never climb out. Anyone not in a coma can see the Repugs can't wait for this to pass, on straight party-line vote. Plus, licensing insurance companies to pick every American's pocket is lousy policy. The WH crew must all have become idiots, including the president.

    The diarist is right. Other than something like that, what needs to be said?

    When an old man dies, a library burns down. --African proverb

    by Wom Bat on Thu Dec 17, 2009 at 09:31:23 AM PST

  •  The only diary ... (1+ / 0-)
    Recommended by:
    kyril

    ... I recall here that featured that theme was one that acknowledged that it's an unsettled question, but the diarist was concerned at the challenges likely to come.

  •  Is there precedent for mandating private sector.. (2+ / 0-)
    Recommended by:
    burlydee, kyril

    ...contracts?  There are regulations and restrictions on the parameters of a contract, of course, but making a private citizen sign the dotted line on a contract is a new level.

    The only thing I can think of is car insurance mandates, but that is justified by accepting a government privilege to drive.

    You don't need a license to get sick.  I question its constitutionality.

    No snowflake in an avalanche ever feels responsible.

    by Magster on Thu Dec 17, 2009 at 09:38:54 AM PST

  •  I don't know if it's Constitutional or not (3+ / 0-)
    Recommended by:
    bajadudes, bigchin, kyril

    I just know it's wrong. I know it's a naked giveaway to  insurance companies from a bought-off Congress, and I will oppose it. And I also don't care for demonizing Conservatives since that distracts from the real enemy - our bought-off Congresspeople on both sides of the aisle. It ceased to become us versus them a while ago for those who have been paying attention.

  •  I'm not so quick to reject 'conservative' (2+ / 0-)
    Recommended by:
    kyril, agito

    constitutional interpretations.

    I agree in this particular case, taxing people who don't own health insurance isn't unconstitutional.

    But I'm uncomfortable with the broader brush. There is much excellent cooperation between 'left' and 'right' on some Constitutional issues because the 'left/right' continuum is largely a corporate invention to keep people from working together across traditional partisan lines. In fact, many of our core Constitutional questions, from drugs to wars to international treaties, don't fit neatly into liberal and conservative perspectives.

    And separate from that, I believe it's valuable having multiple perspectives on philosophical issues like the power of government to impose taxes. Is there any kind of tax that is not explicitly prohibited that is unconstitutional? I think that's an interesting question.

    •  Well, no there isn't but some are prohibited (1+ / 0-)
      Recommended by:
      washunate

      Is there any kind of tax that is not explicitly prohibited that is unconstitutional? I think that's an interesting question.

      As far as I can tell, no.  Any tax not explicitly prohibited seems to be  Constitutional as long as it doesn't violate the Bill of Rights or the 13th/14th/15th amendments.

      But some taxes are explicitly prohibited:

      "[n]o capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

      This is altered by the Income Tax Amendment:

      The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

      I don't see how a flat fee is a tax on income.

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Dec 17, 2009 at 12:14:14 PM PST

      [ Parent ]

      •  I concur (0+ / 0-)

        As far as I can tell, no.  Any tax not explicitly prohibited seems to be  Constitutional

        I just think it's interesting looking at it from the other perspective. I can see how people would think that's an overly oppressive reading. It means we could tax people for not exercising or not owning a home or for wearing glasses or owning a TV or anything.

        And it suggests to me that the same people pushing things like the mandate should be at the forefront of other kinds of taxation, too. After all, we have a Constitutional amendment specifically authorizing income taxes. Yet, we act like taxation is such a taboo subject that we can't expect legislators to support meaningful taxation.

        Well, HCR is a great counter-example. A special, unusual tax is at the heart of the plan. Increasing marginal income tax rates, a rather mundane act with decades worth of data backing it up, should be a piece of cake in comparison.

  •  For a lawyer (8+ / 0-)

    Your analysis is surprisingly, um, wrong.

    This is just not true:

    It's that simple.  Congress will impose a tax on everyone vis a vis health insurance.  You fill out your tax form.  If you have employer provided health insurance, or purchased health insurance through the exchange, you are exempt from the tax.  If not...you're not.

    That's not how it works. Have you read the bill? If it were written this way, AS A TAX, of course it would be constitutional. But it's not. You are required to buy private health insurance. It's a private transaction between you and a corporation.  The government only gets involved if you fail to buy it...and in that case, they can fine you.

    This is not regulating commerce. It's requiring you to engage in it.

    You're so stunningly wrong on this I can't believe you even wrote the diary.

    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 Thu Dec 17, 2009 at 09:39:48 AM PST

    •  thank you (1+ / 0-)
      Recommended by:
      NYlawyer

      This diary is clearly flawed.

    •  Uh... (2+ / 0-)
      Recommended by:
      shanikka, andgarden

      if the government only gets involved if you fail to buy it, then how are you required to buy the insurance?

      The only enforcement mechanism in the whole bill, is, in fact, a tax. Either 2.5% in of your AGI in the House bill, or $750 penalty in the Senate bill.

      Don't tell me I'm wrong or haven't read the bill when it is clear you don't know where the legal analysis is coming from.  

      You have a choice: buy the insurance, or pay the fine, which is levied as a tax.  That simple.

      When you get too big a majority, you're immediately in trouble. -- Sam Rayburn

      by wmtriallawyer on Thu Dec 17, 2009 at 12:34:09 PM PST

      [ Parent ]

      •  Taxing you for failure to purchase... (0+ / 0-)

        ...is compelling you to buy.

        Or, put another way, the Federal Government is using its power, including the Internal Revenue Service, to compel you to engage in commerce with a private entity.  And why? Simply for living here.

        The commerce clause empowers the Federal Government to regulate commerce; it cannot force you to engage in it, and a punitive tax in this instance would do just that.

        Any analysis which concludes this in constitutional, whether by you or anyone else, is wrong.

        You'll see.

        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 Thu Dec 17, 2009 at 02:59:16 PM PST

        [ Parent ]

  •  I don't agree with the constitutional argument (1+ / 0-)
    Recommended by:
    kyril

    The best way to put it is that it's a broken social contract.  In return for mandating that a person buys something, they expect that something to have reliable features.  In this case, the expectation is that mandated health care insurance will be affordable and of sufficient quality.  If that's not true the social contract is broken.

    The shortest distance between two points is never a straight line.

    by noofsh on Thu Dec 17, 2009 at 09:40:05 AM PST

  •  Interesting, but unrelated to real crux of issue (1+ / 0-)
    Recommended by:
    kyril

    Which is.. what does Antonin Scalia think?

    They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. - Benjamin Franklin, Feb 17, 1755.

    by Wayward Son on Thu Dec 17, 2009 at 09:40:14 AM PST

  •  WM you don't get it (2+ / 0-)
    Recommended by:
    otto, The Navigator

    When people on Dkos disagree with a POLICY issue they resort to conservative tactics, saying it is unconstitutional, saying you are brainwashed or an Obamabot for agreeing with it, you know things that someone with their head up their own asses would say. We can debate the MERITS of whether we should have a mandate or not(each day I lean more towards it being nixed) but the bomb throwing bullshit grows really old.

    "I don't want a line in the Sand lines can be moved. They can be blown away. I want a six foot trench carved into granite."

    by theone718 on Thu Dec 17, 2009 at 09:44:22 AM PST

  •  The Apfel "regulatory taking" case (1+ / 0-)
    Recommended by:
    kyril

    was simply trying to directly and fairly right a wrong.

    The care would also have be owed by workers comp and in states like Florida by the state constitutional principle that wrongs can redressed in court.

  •  The Orentlicher quote seems to only say trust (4+ / 0-)
    Recommended by:
    bigchin, kyril, agito, CMYK

    me I'm right.  

    The example he points to as a cause for constitutional concern is exactly what is happening with mandates in this case.  We are specifically being told, under threat of fine or imprisonment, to buy the products of a selected group of corporations, in a no-exceptions scenario.  Our property is to be taken from us coercively, and given to another private entity.  

    This is an eminent domain case, imho, not a taxation case.

    If there was some form of government option, that context would change completely.  But there isn't.

    "I'm mean in the East, mean in the West. Mean to the people that I like best. ... I push folks down, and I cause train wrecks." Woody Guthrie

    by Terra Mystica on Thu Dec 17, 2009 at 09:47:07 AM PST

  •  revolting (3+ / 0-)
    Recommended by:
    kyril, breakingsong, CMYK

    A Constitution that fails to protect humans from predatory actions by 'artificial persons' is fundamentally flawed and needs to be replaced.  The most basic obligation of government is to reduce risk -- to be the insurer of the commons, the public trust.  If government is so corroded by corruption that it shirks this basic foundation of its authority, it needs to be replaced too.

    Unbearable taxation of those least equipped to pay has always led to revolt, which sometimes evolves into revolution.  Our Constitution was founded on such a social movement, please keep that in mind.

    The Shock Doctrine by Naomi Klein -- best book ever, I nominate for a Nobel Prize!

    by xaxado on Thu Dec 17, 2009 at 09:49:53 AM PST

  •  "You must own a car, or pay $2000/year taxes" (3+ / 0-)
    Recommended by:
    Rumi68, bigchin, kyril

    So you're saying that this law would be ok?

    "Each adult citizen must pay $2000 in additional taxes every year. Citizens who can prove ownership of an automobile are exempt from this tax."

    I'm not a constitutional scholar, but this troubles me deeply regardless of whether or not it squeaks by within the letter of the law.

  •  Is a mandate on a corporation unconstitutional? (0+ / 0-)

    Of course not. Under the law, a corporation is a person. They exist under all sorts of mandates on what they must do with their money or face taxation.

    •  Ah, but corporations are not persons (0+ / 0-)

      And for many purposes the law treats them as not persons.

      It only treats them as persons when it's convenient to pro-corporate courts.

      It's as bad as the question of whether Indian nations are sovereign -- short answer, yes if it hurts them, no if that hurts them.

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Dec 17, 2009 at 11:38:37 AM PST

      [ Parent ]

  •  Okay, I couldn't agree more with your point: (0+ / 0-)

    The mandate aspect in this bill just in plain simple language, "sucks".

    Yes?

    Good; we all now are in agreement on this point.

    "Try not to become a man of success, but rather to become a man of value." ~ Albert Einstein

    by LamontCranston on Thu Dec 17, 2009 at 09:54:05 AM PST

  •  So, a tax on the poor. We're now defending this? (4+ / 0-)
    Recommended by:
    kyril, Lady Libertine, MGross, CMYK

    Because that's really the argument I'm seeing here.

    The government is now going to be subsidizing the insurance industry by forcing one and all to buy their shitty, vastly overpriced health insurance, and those who can't afford it will be hit with what amounts to a poor tax.

    Wow, this deal just keeps getting better and better, doesn't it?

  •  I hate the mandates, but you're right (2+ / 0-)
    Recommended by:
    mahakali overdrive, IL JimP

    Saying it's unconstitutional is a cop-out.  The issue is not constitutional, it's political.  I can believe it is political suicide to force mandates through with no clear path to cost savings, without believing that it's not allowed by the Constitution.

    Ancora Impara--Michelangelo

    by aravir on Thu Dec 17, 2009 at 09:54:35 AM PST

  •  blah blah blah blah blah....n/t (0+ / 0-)

    "History is a tragedy, not a melodrama." - I.F.Stone

    by bigchin on Thu Dec 17, 2009 at 09:55:05 AM PST

  •  Related issue: Can we refuse to pay, in protest. (0+ / 0-)

    Suppose a man and wife (or spouse and spouse in states that allow it) work for two different employers.  Currently one signs up for health care (whichever has the best plan) and the other tells their employer, No thanks I'm covered by my spouses' plan.

    So what's to keep us from lying?  Both can say, "We gave at my spouses' office."

    Naturally I ask as pure speculation.  No one would contemplate refusing to obey any law which congress in it's infinite wisdom may pass.  And if HRC requires us to buy from private insurers,  while making no requirements on them,  then surely this would be just as it should be.

    But,  just as an abstract consideration....

    The faster we go, the rounder we get.

    by RedBlueNoMore on Thu Dec 17, 2009 at 09:57:03 AM PST

  •  Incorrect (2+ / 0-)
    Recommended by:
    kyril, CMYK

    The law would not be a tax in any normal sense without cost controls. It's strange that the Federal government would ask people to buy into private, state-based insurance monopolies free to "tax" some arbitrary amount. What you describe would actually be like this: The government taxes me $500(arbitrary health care amount), returns that money to me in the form of a waiver, which I then use to purchase health care. In this way, I'm taxed a set amount that must go into the helath care system, or be lost.

    What is actually happening is that I'm being made to do business with a company, regardless of what they're charging or the quality of the product. This would be a different matter if I were being made to purchase a shoddy government product (say roads filled with potholes), but that's not the case.

    Yes, governments can of course require people to purchase certain things under certain conditions. Usually, though, this has everything to do with the damage you might cause to others -- car insurance, property repair, etc. With health care, though, it's much harder to justify.

  •  It goes against MY constitution. (4+ / 0-)
    Recommended by:
    bajadudes, burlydee, kyril, CMYK

    And that's all there is to it. Our nation's insurance cartels are murderers for profit and I will not be forced into giving them one single dime.

    I think that's plain enough to understand.

    -8.00, -8.26 "Fascism is capitalism plus murder." - Upton Sinclair

    by djMikulec on Thu Dec 17, 2009 at 10:02:23 AM PST

  •  First Obama was agains the mandate now he is for (1+ / 0-)
    Recommended by:
    CMYK

    the mandate?  He is channeling every toad of a hypocritical pol we ever knew.  This shibai don't get it!

  •  Don't give a rats (4+ / 0-)
    Recommended by:
    bajadudes, burlydee, kyril, CMYK

    ass if its constitutional or not.   I'm not paying it,  and I'm not alone.

  •  Thanks for posting this diary. (1+ / 0-)
    Recommended by:
    IL JimP

    It was long overdue.

    We are the ones we've been waiting for. We are the change that we seek.

    by Simian on Thu Dec 17, 2009 at 10:21:25 AM PST

  •  it depends on how it is implemented (2+ / 0-)
    Recommended by:
    neroden, kyril

    and I haven't read the bill

    but if Congress treats it as an across the board tax and then gives some kind of tax credit to those who have purchased private health insurance,  it's probably constitutionally sound.

    on the other hand, if Congress treats it as a special tax levied only on those who don't purchase private health insurance, it is, imo, unconstitutional.

    "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

    by jlynne on Thu Dec 17, 2009 at 10:22:05 AM PST

  •  I agree. There is plenty to hate about the (0+ / 0-)

    mandate without calling it unconstitutional.  Just because a measure like this has never been enacted before (and no auto insurance is not a good analogy), this doesn't mean that a mandate would be unconstitutional.

  •  I see your Lopez and Morrison, and raise you (3+ / 0-)
    Recommended by:
    lysias, neroden, kyril

    United States v. Butler.

    This strikes to Orentlicher's lone bill argument:

    To be sure, if Congress passed a law whose only provision entailed a mandate for individuals to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise.

    The SCOTUS said:

    The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. They are but means to an unconstitutional end.

    The Court went on to say, in reference to General Welfare and Commerce:

    The clause confers a power separate and distinct from those later enumerated [,] is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. ... It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

    Without the public option aspect, it becomes a private purpose, and I will see you in court.

  •  It's not without basis. (1+ / 0-)
    Recommended by:
    kyril

    I can't say I agree that it is unconstitutional, but there are some plausible arguments that it is in fact, such.

    Randy Barnett makes the argument over at Volokh Conspiracy

    It's an important thing to debate as no one is well served by passing a law that's struck down.

      •  I don't know this guy but I did read (2+ / 0-)
        Recommended by:
        Catesby, MGross

        the bio about him being a Federalist.  Okay let's break down this logic a little.  Is he right/wrong?  I don't know nor do I care, but whether or not he is right or wrong does not hinge on WHO he is, but on the whether or not the idea is wrong/right.

        So for example, witness sees something that will exonerate a defendant.  For argument's sake we will say that what the witness sees is 100% the truth.  However the witness has a checkered past, including perjury.  Just because that witness has a history as a liar, does not mean they are currently lying, but it is something you can do to raise doubt about the testimony.

        The problem I have with this conservative "invasion" theory is that it is attacking the underlying idea because of who said it, not because of the contents of the idea.  Should it raise doubt that a federalist made an argument? Yes.  Does it mean it is automatically wrong? No.

        We all went to heaven in a little rowboat, and there was nothing to fear and nothing to doubt. --Radiohead

        by Tzimisce on Thu Dec 17, 2009 at 12:54:29 PM PST

        [ Parent ]

        •  well, he's not exactly in the mainstream (0+ / 0-)

          of legal thinking, to put it politely. Not the person I'd cite if I was trying to predict what the Supreme Court (the one that exists in the real world) might do.

  •  I can't afford it. PERIOD. (5+ / 0-)
    Recommended by:
    burlydee, kyril, Banzai77, peregrinus, CMYK

    It'd be great if I could be in favor of saving other folks at the risk of putting me and my four kids on the street...and breaking a law (which potentially could affect my licensure)...but I can't in good conscience do this to my kids.

    Here's the deal. My husband is a union electrician about to lose his job. I am self employed. When he loses his job, we lose our insurance. This is a new business started 5 months ago. I don't make enough to support us much less take on an 800 dollar a month health insurance payment. Can't do it. I checked prices in january as of last year when I lost my job, and my husband went back to work. This is the cost.

    I have a predatory lender...am in chapter 13 bankruptcy intended to save my home. I have made all payments for the last 5 years. This is the last year of the bankruptcy and I will be out of protection. I cannot miss a payment or I lose my home. If you were me, (and there are MANY like me) what would you do??

    Sorry this bill is a travesty to middle income folks who are struggling with high unemployment, high insurance prices AND don't forget the predatory finance practices.

    It's not unconstitutional but it's wrong...and I will not vote for Obama if he puts this through. And really am wondering why I voted for him in the first place. My problems are as big as ever...and he will lose many votes if he doesn't start solving some of them.

    The greatest gift you can contribute to the goal of world peace is to heal.

    by wavpeac on Thu Dec 17, 2009 at 10:40:20 AM PST

  •  I refuse to pay their blood money (5+ / 0-)

    Send me to jail. I won't pay the $750.

    In the U.S., owning a gun is a right but having a bullet removed from your abdomen is a privelege.

    by Walt starr on Thu Dec 17, 2009 at 10:40:42 AM PST

  •  According To The Commerce Clause...... (6+ / 0-)
    Recommended by:
    lysias, neroden, BalanceSeeker, khereva, kyril, CMYK

    Congress has the power to:

    The Congress shall have power... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

    So what class of activity is Congress claiming to regulate? In this instance, Congress is attempting to regulate inactivity. To use the commerce clause, you have to make the argument that Congress has the power to regulate the doing of nothing at all among citizens. They are not engaged in "the production, distribution, and consumption of commodities." (the Webster’s Third New International Dictionary definition of "economic activity" used by the Court in Gonzales v. Raich)

    Cite an instance where the Commerce Clause has been used to compel people who were doing "nothing" to start engaging in economic activity, and enter into contracts with private companies.

    I think Congress has better legs to stand on with their various powers to tax, but I find the Commerce Clause argument very shaky.

    •  Commerce Clause FAIL. (0+ / 0-)

      Health Insurance isn't interstate, wherefore diarist's entire point collapses.

      neca politicos omnes; deus suos agnoscet.

      by khereva on Thu Dec 17, 2009 at 12:22:22 PM PST

      [ Parent ]

      •  hah. Thanks Justice Thomas. (0+ / 0-)

        Ok, so I read the polls.

        by andgarden on Thu Dec 17, 2009 at 12:41:45 PM PST

        [ Parent ]

      •  The scope of the CC (0+ / 0-)

        is really staggering, even items that have no risk of entering into the stream of commerce can still be under the CC.  That said, yes health insurance is purchased state by state, but the overall effect of uninsured has a national scope (increased costs all around including medicare) but also people move, so while the policy you have is in state X you might be injured or require care in state Y.

        We all went to heaven in a little rowboat, and there was nothing to fear and nothing to doubt. --Radiohead

        by Tzimisce on Thu Dec 17, 2009 at 12:43:09 PM PST

        [ Parent ]

  •  I want to puke. (2+ / 0-)
    Recommended by:
    kyril, CMYK

    People who can't afford it will pay a hefty tax, which will be used to subsidize the insurance of people who can afford it.

    "Would you like dinner tonight or junk insurance? Oh, don't worry, we decided for you!" -MinistryOfTruth

    by Banzai77 on Thu Dec 17, 2009 at 10:43:38 AM PST

  •  There is a related issue (1+ / 0-)
    Recommended by:
    kyril

    of medical technology patent or drug coverage constitutionality.

    "To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries."

    If Mr. Pharma is given the exclusive rights to drug X, Mr. Insured can't also be granted a future federal right to drug X under the Constitution.

    The federal government can do either, but not both.

  •  Can a state government (0+ / 0-)

    ratify a constitutional amendment that would insure that straight people get paid at $20/hour and gay people at $10/hour?

    What if an amendment passed in 1913 got so abused?

  •  Fiddling while Rome burns (4+ / 0-)
    Recommended by:
    burlydee, kyril, Tzimisce, CMYK

    I mean really...Who the hell cares? We're about to be handed the biggest shaft in a century and you worry about people signing on to a right wing meme.

    I'm sorry, but even a broken clock is right twice a day. This bill in it's current watered down form will do nothing more than bankrupt even more Americans as they are forced to buy worthless insurance they can't afford. Maybe the right has it wrong on style, but not on substance. Without the public option this bill does more harm than good and should be scrapped.

    I can't speak for others, but I am a lot less worried about whether I "sound like a teabagger" than whether I'll be able to feed my family after shelling out a fortune for junk insurance.

    "crush in it's birth the aristocracy of our monied corporations which dare already to challenge our government" -Thomas Jefferson

    by Phil In Denver on Thu Dec 17, 2009 at 10:57:18 AM PST

    •  Did you not get the memo? (0+ / 0-)

      if a right wing loon said it, it will always be wrong, no matter what.  Hell in fact instead of actually attacking the underpinnings of the substantive argument all you have to do is say "you sound like a wing nut."

      Some really fucking lazy minds around here.

      We all went to heaven in a little rowboat, and there was nothing to fear and nothing to doubt. --Radiohead

      by Tzimisce on Thu Dec 17, 2009 at 01:27:42 PM PST

      [ Parent ]

  •  I don't care (1+ / 0-)
    Recommended by:
    CMYK

    WHATEVER kill the ILLEGAL mandate is fine by me.

    I will NOT have the government forcing me to underwrite CEO bonuses, shareholder dividends, denied coverage, and dropped coverage for the sake of ANYONE'S bottom line.

    I will LIE on my tax forms if need be.  Hell, I'd become one of the tax protesters who don't pay taxes at all rather than give in to the jackboot of fascism that this mandate IS.  It is all profit for the insurance companies with government backing to ensure their profits are tidy indeed.  That. Is. Fascism.

    I wont play and I don't care what argument is used to kill it.  This argument WILL work to kill the bill and/or the careers of any and all politicians that vote for it.  That is all I want.

    There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

    by praedor on Thu Dec 17, 2009 at 11:05:07 AM PST

  •  Where is freedom of contract in this discussion? (3+ / 0-)
    Recommended by:
    lysias, neroden, CMYK

    Just because I have to buy health insurance does it mean I have to accept their crappy product?  

    If this mandate goes through without a P.O. we will begin to see a rise in very bad, very predatory health insurance companies (even worse than the ones we have now)

    In states that mandate auto insurance, poor people can survive by paying just for liability coverage with extremely high deductibles.  In essence, I can insure you are okay and take my chances, thereby reducing my premiums greatly.  

    But no health insurance company is going to provide me with "catastrophic coverage" where I can pay a low premium in exchange for them covering me only when I'm really sick.  The economics of the situation are totally backwards.  What will happen is people will start signing up for health insurance, which is health insurance in name only.  I pay $100 a month and my health insurance company covers me for one emergency room visit a year, but nothing else.  This is one of the unintended consequences of this bill.  The problems this bill will create will outweigh any benefits.  

  •  Heh (1+ / 0-)
    Recommended by:
    otto

    If you were paying attention, you'll notice the Federalist Society, the Heritage Foundation, are other like-minded conservative organizations pushing the talking point that the mandate in the health care bill is somehow unconstitutional

    Color me NOT surprised.. that is not the only talking point being pushed around here by the likes of the conservative orgs.  This place gets redder every day.

    Because our individual salvation depends on our collective salvation.. Barack Obama, 5-25-08

    by sherijr on Thu Dec 17, 2009 at 11:11:43 AM PST

  •  the law (0+ / 0-)

    What started out as a thoughtful, terse analysis as to why a proposed statutory mandate is constitutional under the commerce clause has been literally beaten to death by individuals dragging in every complaint under God's green (but overheating) earth-pleaz try to stay on topic-whether Dick Cheney get's prosecuted, knighted for exceptional service, or burned at the stake has zip to do with the constitutionality of a health insurance mandate- perhaps all the critics of our system should consider one observation which I came to several years ago-our legal system is a mirror of us as a people and us as individuals-it has all of our nobility, our stupidity and yes our hypocrisy-all rolled into one great big bowl of guacamole-think about that for just one minute before you climb on your high horse of moral superiority

  •  While I respect your knowledge of ... (2+ / 0-)
    Recommended by:
    lysias, neroden
    ... Constitutional Law, and its prevailing precedents, this does not change the inherent founding universal principles of freedom upon which this Republic was founded, whether or not the consitution has, over time, mistakenly codified certain articles that were flawed, and as such, left open for abuse members of the public, and therefore, must be amended. In plain terms, if the Constitution does not protect this freedom from abusive exploitational mandate, then a new amendment must be added to do so, because, as far as I am concerned, if this mandate is not currently unconstitutional, it should be, lest the very nature of this document's spirit and intent is no more real and binding to our human nature than a piece of toilet paper.

    Now, if the progressive's argument against this mandate starts to sound rather identical to that of the Republican fanatics, maybe it is because they were were fatefully ironically correct, as much as we all here might be loathe to admit it. Yeah, sorry, my dear Constitutional Law expert, but, put aside your constitutional debate, because, lest you forget, before there even was a constitution, there was a spirit and intent that bore that very constitution to life, and that spirit and intent was embodied in one single phrase ...

    * NO TAXATION WITHOUT REPRESENTATION *

    Sound familiar?

    I am sorry, but a MANDATE was pointedly and explicitly NOT in Obama's platform, it was in Hillary's, and we all know who lost that election.

    Yeah, this is gonna get ugly, if they pass this abomination, and we might just find ourselves with some rather strange bedfellows!

    Respectfully ...

    ~we study the old to understand the new~from one thing know ten thousand~to see things truly one must see what is in the light and what lies hidden in shadow~

    by ArthurPoet on Thu Dec 17, 2009 at 11:18:11 AM PST

  •  IANAL (1+ / 0-)
    Recommended by:
    Lady Libertine

    While admittedly, I am not a lawyer, the whole "interstate commerce" thing has been abused beyond belief in this country. Whether or not the mandate is constitutional or not is not interesting to me. I think we can all agree that it is not fair, and not morally right, to be fining people who are already not getting by for not buying shitty, overpriced insurance.

    At some point we need to stand up to injustice on principle.

  •  Agree: Some people here sound like teabaggers. (1+ / 0-)
    Recommended by:
    beauchapeau
  •  Prof. Hall does NOT address "DIRECT TAX" clause! (2+ / 0-)
    Recommended by:
    lysias, khereva

    Sorry, the tax as structured (flat fee) is unconstitutional as a "direct tax" not proportional to state population!

    Nothing to do with the commerce clause or the Bill of Rights!

    Amazingly, Professor Hall does not address this AT ALL in his paper -- he seems not to have noticed that clause.

    Little wonder, it's come up so rarely.

    The tax must be structured as an income tax to be Constitutional.

    -5.63, -8.10. Learn about Duverger's Law.

    by neroden on Thu Dec 17, 2009 at 11:46:20 AM PST

    •  Here's a wikipedia reference: (1+ / 0-)
      Recommended by:
      lysias

      http://en.wikipedia.org/...

      This is the first ever per-head direct tax since the 18th Century, so the 'direct taxation' clause hasn't been used much.  It can't be considered a tax on an event or transaction because not buying insurance isn't an event or transaction.  It's not an income tax because it's not anything to do with income, is it?

      If the tax were, say, "1% of income between the first $5000 and the first $10,000 in income", with a refund if you bought insurance, it would be Constitutional under the Income Tax Amendment.

      But as a flat fee, I suspect it's actually unconstitutional.  Sorry, diarist, I'm not an idiot, I did look this up.

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Dec 17, 2009 at 11:51:50 AM PST

      [ Parent ]

      •  Oh, & if it's a fine rather than a tax (2+ / 0-)
        Recommended by:
        lysias, khereva

        Perhaps it's legal to criminalize not buying health insurance, but that means we each get our day in court before it's assessed -- due process dontcha know.....

        So that doesn't really apply to the attempted penalty either.

        It's just sloppy.  They could have structured it as an income tax no problem but they didn't.

        -5.63, -8.10. Learn about Duverger's Law.

        by neroden on Thu Dec 17, 2009 at 11:56:54 AM PST

        [ Parent ]

  •  OK, Not Unconstitutional, But a "First?" (1+ / 0-)
    Recommended by:
    neroden
    Would it not be a first for the government to mandate purchase from a private company?
    I look at it like I look at another governmental "first" a few years back, writing a law to benefit a single person, Terry Schiavo.  Constitutional? Maybe.  Dispicable? Certainly.

    You can't support the GOP and the Constitution at the same time!

    by Arsenic on Thu Dec 17, 2009 at 11:50:09 AM PST

  •  You don't address the argument that it is (3+ / 0-)
    Recommended by:
    shanikka, elmo, Bush Bites

    unconstitutional due to the president's kenyan birth.  Please update your diary.

    Subsidies without cost controls, regulatory reform means that citizens get a little more awful insurance at a huge cost to taxpayers. Like Part D but worse.

    by Inland on Thu Dec 17, 2009 at 11:51:50 AM PST

  •  It is unconstitutional... (2+ / 0-)
    Recommended by:
    Bush Bites, khereva

    ... if Alito says it is unconstitutional.  The judge who thinks Creation Science should be taught in public schools decides what he wants and then makes up preposterous, incoherent opinions to support his decisions.  Four other Supreme Court justices buy into this legal postmodernism.

    Until Obama can replace at least one of the dark lord justices, no amount or quality of constitutional reasoning will make any difference whatsoever.

    This Supreme Court could easily nullify any legislation coming out of this Congress.  

    •  That's pretty much true. (1+ / 0-)
      Recommended by:
      khereva

      A wingnut lawyer just has to appeal up to them and they'd be glad to kill it.

    •  Don't look to Obama for anything (1+ / 0-)
      Recommended by:
      lysias

      remotely "constitutional".  He threw out "constitutional" the instant he took the "oath" to "just a piece of paper."

      Let's see:  domestic spying sans warrant?  Unconstitutional yet protected and defended by Obama.

      Let's see:  it is federal law that torturers MUST be tried and punished if convicted.  This law grows from the CONSTITUTION that makes not only the Geneva Accords the Supreme Law of the Land (thank you Article 6) but ALSO make the Conventions Against Torture the Supreme Law of the Land (thanks again Article 6).  Obama ignores both in spite of the fact that he swore an oath to uphold and defend the Constitution.

      Obama the "constitutional law expert" (my ASS) is spinning like crazy to aid and abet the numerous federal crimes committed against the Constitution and the law by Bush and Cheney and the CIA and the Pentagon.  Don't even dare to say Obama's name in the same sentence with the word "constitutional" or the Constitution.

      He is divorced from both.

      There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

      by praedor on Thu Dec 17, 2009 at 12:28:04 PM PST

      [ Parent ]

  •  It's not unconstitutional, it's only immoral. (1+ / 0-)
    Recommended by:
    neroden
  •  Agreed that it's not unconstitutional. (1+ / 0-)
    Recommended by:
    Tzimisce

    But the diarists on this site need to stop equating these sorts of arguments with teabaggers and FedSoc.  Clearly, not everyone is coming from the same place and it's disingenuous, inflammatory and distracting to imply that they are.

    •  Even if they were (1+ / 0-)
      Recommended by:
      IPLawyer

      as a lawyer I would think that they would see that sort of thinking is illogical.  Yes, if there is something coming from the right it will damage its credibility, but it does not mean that it is automatically wrong.  The argument is essentially you are wrong because you heard that from X instead of Y, but it does not actually attack the basic underpinnings of the original statement, "this is unconstitutional."  If it is wrong, it's not wrong because the right-wing came up with the idea, but wrong on its own merits.

      We all went to heaven in a little rowboat, and there was nothing to fear and nothing to doubt. --Radiohead

      by Tzimisce on Thu Dec 17, 2009 at 12:34:27 PM PST

      [ Parent ]

  •  I'm not buying this (2+ / 0-)
    Recommended by:
    lysias, khereva

    From the Orentlicher article:

    Critics of an individual mandate cite recent Supreme Court cases in which the Court has limited the commerce clause power. But those cases (Lopez and Morrison) involved regulation of non-economic activity. The individual mandate regulates the relationship between sellers and buyers of health care insurance.

    The mandate doesn't just regulate the relationship between insurance sellers and buyers, it also mandates the creation of a relationship where one does not exist.  That goes beyond just regulation.  Saying that the government has the authority to force people to buy insurance just because it has the authority to regulate commerce, is like saying that it has the authority to force people to get married just because it has the authority to regulate the institution of marriage.

    From your diary:

    Keep in mind, however, that the "mandate is unconstitutional" argument has nothing to do with whether you contract with an insurance company or not.  It has EVERYTHING to do with whether you should buy ANY insurance AT ALL...and that includes a government run public option.

    Except that if a public option isn't included, your only option to avoid being slapped with tax penalties is to contract with an insurance company.  So yes, in that case you are in fact being forced to do so.

    The simple fact is that the power of Congress to impose an individual mandate rests first in the Commerce Clause and second in the authority of Congress to tax and spend.  With respect to the Commerce Clause, the point is simple: health insurance and health care certainly fall within the economic activity that Congress can regulate under the Commerce Clause.

    Please cite specific legal precedent supporting the assertion that the federal government can use punitive taxation to compel citizens to do business with private companies under the Commerce Clause, its tax authority, or any other part of the Constitution.

    -7.12, -7.54 / "Health care reform will never take place until Rahm Emanuel is strangled with the entrails of Frank Luntz." - Diderot

    by Big Tex on Thu Dec 17, 2009 at 12:13:54 PM PST

    •  Not to mention (0+ / 0-)

      that this does entangle into "takings" which comes later in the Constitution, and well as odd as that is, generally provisions that come later preempt/limit, provisions found earlier in the Constitution.  Commerce Clause is found in Art 1 and takings is in the 5th (applied to the fed) and 14th amendments (takings applied to states).

      We all went to heaven in a little rowboat, and there was nothing to fear and nothing to doubt. --Radiohead

      by Tzimisce on Thu Dec 17, 2009 at 12:30:32 PM PST

      [ Parent ]

  •  Whoa, I'm hearing a lot about "direct taxes" (0+ / 0-)

    clause today ... more than I've ever heard, at any time, anywhere. Did a talk radio host just blast that talking point out into the atmosphere? Thom Hartmann? GLENN BECK?

    •  A couple of us looked up 'poll tax' on Wikipedia (1+ / 0-)
      Recommended by:
      Catesby

      That's where it's coming from.

      The thing is, a federal capitation tax hasn't been imposed since the 18th century, and the last direct tax cases were before the income tax amendment passed (and about income tax) -- I think frankly most people have forgotten about the clause.

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Dec 17, 2009 at 12:29:00 PM PST

      [ Parent ]

      •  It's *stupid* and easy to fix, too. (1+ / 0-)
        Recommended by:
        Catesby

        I'm actually annoyed because Congress simply ought to have altered the penalty to be a percentage of income (between some limits) -- because then it falls under the income tax amendment.  Trivial, doesn't change the politics one bit, just a little bit of work.

        But I think they never read the Constitution over there on Capitol Hill.

        -5.63, -8.10. Learn about Duverger's Law.

        by neroden on Thu Dec 17, 2009 at 12:40:08 PM PST

        [ Parent ]

      •  The federal govt avoided imposing taxes that (2+ / 0-)
        Recommended by:
        neroden, Catesby

        required apportionment among the states according to the census figures because such apportionment would have made administration of any such tax extremely difficult, if not impossible.

        They only did it with the Civil War and post-Civil War federal income taxes because they thought they had a good argument that an income tax was not a direct tax.  When the Supreme Court disagreed and struck down the income tax for not being apportioned, the federal government held off reenacting an income tax until the 16th Amendment allowed them to do it without apportionment.

        The influence of the [executive] has increased, is increasing, and ought to be diminished.

        by lysias on Thu Dec 17, 2009 at 12:40:53 PM PST

        [ Parent ]

      •  And I knew about SCOTUS' decision striking down (0+ / 0-)

        the 1894 income tax, Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), aff'd on reh'g, 158 U.S. 601 (1895), from tax courses I took in law school.

        The influence of the [executive] has increased, is increasing, and ought to be diminished.

        by lysias on Thu Dec 17, 2009 at 01:17:00 PM PST

        [ Parent ]

  •  Here's the stone cold facts (2+ / 0-)
    Recommended by:
    lysias, neroden

    This is THE SAME AS:

    Fighting hunger by FORCING poor hungry people to buy food.

    Fighting homelessness by FORCING the homeless to buy homes.

    It is unacceptable and is a career ender for the politicians that push it.

    Here's the deal.  You have a starving child.  You GIVE that child food!  You do NOT first negotiate with Kargill, Monsanto, etc, over price structures and regulations and THEN make that child BUY food.

    That is what this "health care" bill is all about.  It was first Obama going behind closed doors with Big Pharma to work out how they would get their pound of flesh from captive prisoners (that would be you and me) THEN they wrote a bill around it, brought in the insurance companies behind closed doors in congress and determined how they would "earn" THEIR pound of flesh on the captive prisoners (that would be you and me).  Ta-da!  Here's the "health care reform" bill folks?  Ain't it grand!?  

    We got everything WE (senators on payola AND Obama on payola) wanted...and YOU get to pay for OUR profits.  Or eat a tax penalty, or lose your home and your freedom if you refuse.

    Ta-da!  Reform.

    Civil War folks.  That is the answer to THEIR answer.

    There is a special place in Hell reserved for the creator of the Bluetooth ear-f*cking-bud.

    by praedor on Thu Dec 17, 2009 at 12:21:52 PM PST

  •  If you tax income to fund a government health (2+ / 0-)
    Recommended by:
    neroden, Catesby

    program, that's as clearly constitutional as Social Security is.

    If you compel people to buy health insurance from private outfits and impose a (flat) penalty if they don't, that's a very different kettle of fish, and raises several constitutional problems.  Can the mandated purchase be a tax if it's paid to a private outfit?  If it and the penalty are a tax, why are they not a direct tax requiring apportionment among the states in accordance with census figures?  If they're not a tax, why are they not a taking requiring just compensation (presumably identical remuneration) under the 5th Amendment, thus making the mandate meaningless?  (The Supreme Court's IOLTA case Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) makes it clear that a taking of money remains a taking, requiring just compensation.  Taxation doesn't require compensation, but that would just raise the different problems involving taxation.)

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Dec 17, 2009 at 12:22:02 PM PST

    •  And the public option, by offering an alternative (1+ / 0-)
      Recommended by:
      neroden

      to having to buy private insurance, eliminated most of these problems.  People in that case would no longer be obliged by law to enter into a contract with and pay money to a private party.

      The influence of the [executive] has increased, is increasing, and ought to be diminished.

      by lysias on Thu Dec 17, 2009 at 12:25:04 PM PST

      [ Parent ]

  •  Two Points (2+ / 0-)
    Recommended by:
    lysias, neroden

    First, just because an argument comes from the right does not automatically make it wrong; that's just illogical.  It does mean that as a community you should take that argument with a grain of salt and examine more in depth before using it.  You will hear a lot of bitching from the right about Kelo, but hey I think they're right.

    Second, while Kelo did deal with real property, there is still a line of cases with regards to the legality of a federal income tax, the 16th amendment preempts that line, but this is not necessarily a tax, so much a mandate to purchase something.  If the premiums were taken out in taxes I think this argument would be moot, but its at least a plausible way to argue.

    It seems to me this will be Kelo redux, but with personal property instead of real and with a Court that has swapped out one third of its membership.  As case law stands now, yes I can see this being constitutional, but you and others seem to make this into a slam dunk, which I'm not sure it really is.

    We all went to heaven in a little rowboat, and there was nothing to fear and nothing to doubt. --Radiohead

    by Tzimisce on Thu Dec 17, 2009 at 12:25:09 PM PST

  •  If there's so much else that would fall if this (1+ / 0-)
    Recommended by:
    neroden

    mandate is found unconstitutional, why is it that nobody can come up with any examples of the federal government ever before mandating purchases from private businesses?

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Dec 17, 2009 at 12:37:31 PM PST

  •  So if what you say is true then Congress can (2+ / 0-)
    Recommended by:
    lysias, Catesby

    Mandate that all Americans must buy Cars and Trucks from US Companies,All US Citizens must buy 10 pounds of Beef each week,They must buy 5 Gallons of Milk,They must Buy a New House to be built and buy American Made Bicycles,Toys,Clothing,ETC.ETC. once the Government can Mandate the American People to buy a Private Product/Service then it's "the Skies the Limit" rule cause everyone of those examples has strong and good "Reasons" to be Mandated they save Farming,Construction,Industry and Mining they create Jobs for Americans they increase the Tax Base they do whatever the reason Government says they do to force a Mandate to buy Private Non-Government Products and Services.In Fact this line of reasoning could be taking to the Point where just writing what could be Mandated would sound insane to write.So if as you says it is Constitutional to have a Mandate that forces Americans to buy Insurance from Private Companies then truly the "Sky is the Limit" for all of The Corporations and their Lobbyist.

  •  Not the same as the Fed Soc version... (0+ / 0-)

    I think the version of it made here is more reasonable than the FedSoc version, which is probably why they've cited to it.  WMTL states:

    Even if the public option were included in the bill passed by Congress, it wouldn't change the "mandate is unconstitutional" meme one iota.

    That's not an accurate reflection of the argument that's been made here.  The lynchpin of the argument here was that the combination of 1) the mandate, as a severe restriction of an individuals' freedom of contract/association, and 2) (this is the crucial part) the anti-trust exemption for the health care industry could be enough to remove this from congress' powers to regulate interstate commerce.  At a minimum this seems sufficient to raise a pretty novel and thorny constitutional question.  The basic concept is that Congress' dominion over the economy does not extend to the power to force individuals to contract with one of five companies that control a particular industry.  It's a pretty direct conflict between the first amendment rights of all U.S. citizens with the commerce clause powers of Congress, in service of corporate campaign contributors.  

    Now WMTL is right that the evolution of commerce clause jurisprudence--combined with (again, the curcial part) the corporatist bent of at least 2 of the 5 conservatives on the SCOTUS--will mean that the mandate is left standing.  But I anticipate a scathing, dishonest Scalia dissent detailing all the horrors perpetrated on people forced to buy shitty insurance by this bill, as if he ever gave a damn.

  •  Whatever. So call me a right wing stoolie (0+ / 0-)

    Unconstitutional or not, a mandate is not the answer. It's not a healthy compromise. You can't tell me to buy something from a company because I am alive.

    I don't care how it gets spun. This is the wrong road. The wrong path. It is the Democrats lemming jump and I for one say have a nice fall dumb asses.

    ...Fuck the High Priests...

    by Tirge Caps on Thu Dec 17, 2009 at 03:02:44 PM PST

  •  The arguments in the linked articles appear to me (0+ / 0-)

    to be pure sophistry.  That doesn't make them wrong, the court has often had recourse to pure sophistry itself.  However, I'd like some competent legal types to address three problems I have with that reasoning.

    1. An assertion of the form "Transactions involving x are commerce, hence the failure to engage in such transactions is also commerce" seems necessary in order to invoke the commerce clause. Such logic brings any and all economic inactivity within the ambit of "commerce" and seems to be an abuse of the English language.  The fact that insurance transactions are "commerce" doesn't automatically render the failure to have such transactions "commerce", or else there is nothing whatsoever which isn't "commerce".
    1. Failing to buy insurance, or even buying it, doesn't generate income.  This can't be a tax on income.  There is no way to make it fit within the normal definition of an excise, either.  How then do they avoid the requirement for a capitation to be proportional?
    1. The arguments put forth apply almost without any conceivable limitation or restriction.  They can, pursuant to the logic argued, require everyone to own a car, airplane, sailboat, diamond ring, piano, guitar, or almost anything else.  They can also require everybody to obtain the srvices of an accountant or attorney on retainer, or to pay big Vinnie protection money (maybe that would have to be less specific, such as to buy personal safety insurance from any person providing it.)  The big argument is the lack of a specific right not to have insurance, or a car, or an airplane, or whatever.  Such an expansive reading of the applicable provisions seems untenable.

    "Fascism should more properly be called corporatism because it is the merger of state and corporate power." -- Benito Mussolini

    by enhydra lutris on Sun Dec 20, 2009 at 02:44:45 PM PST

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