Skip to main content

There is a diary currently sitting on the Rec List which claims that in 1798, President John Adams signed into law a requirement that sailors purchase private health insurance.  It is appropriately titled, "President John Adams signed a law mandating employed sailors to purchase healthcare insurance", and seeks to validate the constitutional basis of the recently enacted mandate provisions of the health care reform bill signed by the President last week.  

That diary is wholly misleading and false in its purported defense for the private health insurance mandate for two simple reasons: 1) the law referred to in that diary did not at all do what the diarist claims it did; and 2) there was no such thing as private health insurance in 1798.

So let's look at this law, shall we?

An Act for the Relief of Sick and Disabled Seamen
Section 1.  
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled - That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen, that shall have been employed on board such vessel since she was last entered at any port in the United States,-and shall pay to the said collector, at the rate of twenty cents per month for every seaman so employed; which sum he is hereby authorized to retain out of the wages of such seamen

OK.  So this section of the law requires a ship owner to pay to a "collector" a fee of $.20 per month, said payment which can be deducted out of the wages of a seaman.  Note what this is NOT.  It is NOT requiring seaman to purchase private health insurance or anything else like what the currently debated mandate requires.  "Well", you may be asking, "how do we know that the 'collector' wasn't a private company that was taking the money to pay to local hospitals, doctors, etc.?"  The answer is simple:  because the law tells us where the money went.  

Section 3
And be it further enacted, That it shall be the duty of several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the Secretary of the Treasury;  and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or disabled seamen

So this Section directs that the "collectors" remit their collected moneys to the U.S. Treasury, so that the President can determine how best to use the moneys towards the sailors' benefit.

So let's recap...this law:

  1. Requires ship owners to remit a fixed payment to a collector;
  1. Allows owners to deduct this payment from seaman's wages;
  1. Requires the collector to remit those funds to the U.S. Tresury;
  1. Allows the President discretion to direct those funds for the health benefits of sailors.

Replace the words "seaman" for "all workers"  in #2, and "sailors" for "senior citizens" in #4, and you have described, almost perfectly, today's Medicare system.  Now I don't know about you, but I would LOVE LOVE LOVE expanding the Medicare system to all.  This mandate to purchase private health insurance, however, is nowhere NEAR the same thing as Medicare.

And finally, this interesting tidbit from Wikipedia:

Accident insurance was first offered in the United States by the Franklin Health Assurance Company of Massachusetts. This firm, founded in 1850, offered insurance against injuries arising from railroad and steamboat accidents.
Wikipedia entry for "Health Insurance""

In other words, private health insurance did not even exist in 1798.

Originally posted to thegood thebad thedumb on Mon Mar 29, 2010 at 08:28 AM PDT.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Boffo response diary. T&R'd for truth in the... (9+ / 0-)

    ...face of that malarkey in the other diary.

    Learn more about second-class U.S. citizenship at

    by Larry Bailey on Mon Mar 29, 2010 at 08:30:48 AM PDT

    •  Facts are Stubborn Things (2+ / 0-)
      Recommended by:
      pHunbalanced, Larry Bailey

      not much more to say than what Adams has already said!

      "I want to keep them alive long enough that I can win them to Christ," - Rick Warren, Professional Greed Driven Scumbag

      by josephk on Mon Mar 29, 2010 at 08:43:09 AM PDT

      [ Parent ]

    •  Lauren's focus was the *mandate* requirement (7+ / 0-)

      to deduct funds from earnings and how that mandate was put to good use back in the day of founding fathers.

      The founding fathers understood the importance of community services like Adams provided for the sailors versus the conservatives' rallying cries of today for private enterprise mandates that suck our wallets and our treasury dry.

      <div style="color: #a00000;"> Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshal

      by bronte17 on Mon Mar 29, 2010 at 08:56:27 AM PDT

      [ Parent ]

      •  Your comment confuses me (1+ / 0-)
        Recommended by:
        Larry Bailey

        You say:

        "conservatives' rallying cries of today for private enterprise mandates that suck our wallets and our treasury dry"

        Aren't the Republicans the ones who are challenging the private enterprise mandates that this bill enacts?

        Of course, they are doing so for dubious, shallow, and strictly political reasons, but...

      •  She thinks the word "mandate" in the context of (0+ / 0-)

        HCR reform refers to the employer mandate.  She doesn't realize that to most, "mandate" means the mandate on individuals to purchase private health insurance.  

        She then muddies the water even further with her title that claims that the law mandated "employed sailors to purchase health insurance".

  •  It's a slow day on the Rec List (5+ / 0-)

    now that HCR is passed and people don't know what to do next

  •  Thanks for setting the record straight (4+ / 0-)
    Recommended by:
    pHunbalanced, jrooth, soms, eXtina

    Though the individual mandate is still constitutional...

  •  Please rec this diary, folks. (6+ / 0-)

    The other side of the story (aka--FACTS) really does need to be seen by DKos Readers.

    Thank you for your efforts, diarist.

    "Popularity contests" aimed at getting on the Wreck List only diminish what the Rec List was designed for.

    Propoganda was probably not what is was designed for.

    Looking forward to DK4.......

    One man alone can be pretty dumb sometimes, but for real bona fide stupidity nothing beats teamwork." - Mark Twain

    by ohmyheck on Mon Mar 29, 2010 at 08:32:51 AM PDT

  •  20 cents ... (10+ / 0-)
    ...came out of the sailors' checks, as that 20 cents went to possible future health care expenses.

    I think the bottom line here is not what that 20 cents was or was not.

    The bottom line is 21st century Republicans would call this a "government tax" & they would fight it tooth & nail.

    I don't know about how you would label the 20 cents.  All I know is there is no way in hell today's Republicans would condone 20 cents being used in such a manner.

    Consequences have elections.

    by wyvern on Mon Mar 29, 2010 at 08:36:36 AM PDT

  •  Furthermore... (5+ / 0-)

    Adams wasn't President in 1789.

  •  The mandate does not need that precedent to (8+ / 0-)

    be constitutional.

    There are a tones of clauses and legal precedents that support health care mandate. The supremacy clause, the welfare clause, the power to tax, and so on and so forth.

    These law suits have no legal standing whatsoever.

    Don't give a damn a/t each & every politician currently alive in the US. Last time i voted for the top part of the ballot was 1972. Never missed SB election

    by Mutual Assured Destruction on Mon Mar 29, 2010 at 08:42:00 AM PDT

  •  It was a kind of mandate to purchase HI since (1+ / 0-)
    Recommended by:
    Eric Nelson

    the ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and forward those receipts to the service, which in turn provided injured sailors hospital care.

    The coverage was paid through the sailor's pay

    Republicans secret dream = the impeachment of Bo the Dog LOL

    by LaurenMonica on Mon Mar 29, 2010 at 08:44:39 AM PDT

    •  No, it wasn't like health insurance (2+ / 0-)
      Recommended by:
      pHunbalanced, Larry Bailey

      It was more like a requirement to pay into Medicare.  So perhaps you should write a diary in which you spell out how the existence of Medicare provides a constitutional basis for the health insurance mandate?

      •  In my sense every sailors had to be covered (2+ / 0-)
        Recommended by:
        pistolSO, Eric Nelson

        and any ship's owner had to deduct 20 cent from his sailor's monthly pay even if that sailor didn't end up sick. Which is kind of a mandate IMO.

        Republicans secret dream = the impeachment of Bo the Dog LOL

        by LaurenMonica on Mon Mar 29, 2010 at 09:00:25 AM PDT

        [ Parent ]

      •  Medicare is health insurance. (3+ / 0-)
        Recommended by:
        jfromga, LaurenMonica, pistolSO

        The concept that it's properly analogized to Medicare fails, since Medicare itself is properly analogized to insurance.  

        •  exactly (0+ / 0-)

          government run health insurance paid for by a tax on both the individual and the individual's employer.  Instead of insurance company negotiating rates paid to providers and charging what the market will bear, the government sets the tax and the rates paid to the providers.  

        •  Again, you or Lauren or anybody else (3+ / 0-)

          is free to write a diary in which you use the existence of Medicare as a basis to establish the constitutionality of the private health insurance mandate.

          I'd love to read such a diary, since I'm personally not convinced that such a constitutional nexus between the two concepts exists, as there are some more than significant distinctions between them.

          •  Well, Lauren did. (1+ / 0-)
            Recommended by:

            And then you have this one.  I don't need a third.  It's pretty straightforward:  the Massachusetts program shows that a state can do it.  Anything a state can do, the federal government can do, in the area of interstate commerce.  

            •  Sigh. (3+ / 0-)
              Recommended by:
              Larry Bailey, vacantlook, run around

              Lauren's diary did nothing of the sort!

              She took an old law and attempted to directly apply it to the constitutionality of the requirement to purchase health insurance.  Except my diary shows that the law is inapplicable because it did no such thing!

              You can SAY that Medicare is "just like private health insurance", but that doesn't make it so.  In fact, it isn't!  Medicare is a completely different model for health care delivery than private insurance.  

              Just one distinction off the top of my head?  Premiums for health insurance are strictly decided in a private market place ruled by supply and demand.  Medicare premiums are based according to a progressive income scale and have very little to no correlation to a private market.  Does Lauren's diary address this distinction?  

              Again, I'd love to read such a diary, but please don't be intellectually dishonest about what that other diary was, or what this diary is.

              •  Oh, it did "such thing". (0+ / 0-)

                Medicare is a completely different model for health care delivery than private insurance.

                Says who?  From an standpoint of an individual's rights...your perspective of looks exactly the same.  It's money being forced out of his pocket for insurance he doesn't want to buy.

                Premiums for health insurance are strictly decided in a private market place ruled by supply and demand.

                That an argument for a smarter policy.  It's not a constitutional argument.  It's not constitutionally required that we have smart, agile programs.  Those arguments are left to the legislature.

                •  It "DID" do such a thing? (0+ / 0-)

                  You realize that the other diarist doesn't even know what she means when she says "mandate", right?

                  Isn't a mandate to purchase a Healthcare Insurance when your employers is given the right to deduct a part of your pay ? I can be wrong tho.

                  So if you want to hold that diary up as a sterling rebuttal of constitutional challenges to the private health insurance mandate, go right ahead.

        •  Medicare is not insurance (1+ / 0-)
          Recommended by:

          not even close.

          •  Yes it is. (0+ / 0-)

            It functions exactly the same way as insurance does.  

            It seems that there's a lot of people who think that naming it is the way you win on the consitutional argument.  I don't. You can call it anything you want.  From an individual liberty standpoint, it's the same.

            •  insurance is a hedge, medicare is (1+ / 0-)
              Recommended by:


              With health insurance you pay based upon the likelyhood you will become sick or need care.  The older you are the more your gonna pay (or if your female, or if the group is older). With insurance if the company decides that the test is not covered...the patient is on the hook for the bill.

              Now with Medicare we all pay 2.9% of our income regardless of the chance we'll need care.  Some guy who is 300lbs overweight, smokes, does crack, and drinks a quart of Jack Daniels a day pays the same as I do if we have the same income (hell, he'll pay less if he makes less).  With medicare, if medicare decides that the test or procedure is unneeded...the hospital/physician/lab gets to take it as a loss..the are prohibited from trying to obtain payment from the patient if medicare denies payment.  Medicare sets it's payment schedule without much in the way of negotiations (what you see is what you get) whereas most insurance companies still negotiate payment schedules with physicians.

              And finally...I get to pay into medicare for 50 years before I get to use would you react to an insurance company with that policy?

    •  To be insurance (2+ / 0-)

      there'd have to be a mechanism for denial of claims, as well as deductibles and out of pocket copays. Not to mention disqualification for pre-existing conditions, and requirements for pre-approval of expensive tests and procedures. And of course all physicians would have to be members of the provider network.

      Absent those crucial characteristics, the program was more like Medicare than Blue Cross.

      "A lie is not the other side of a story; it's just a lie."

      by happy camper on Mon Mar 29, 2010 at 09:28:15 AM PDT

      [ Parent ]

  •  OK, nice rhetorical argument for single payer (0+ / 0-)

    but keep in mind that medicine back then meant a bottle of JD and a dirty saw.  Yes, it's a clever argument for single-payer, and yes, the GOP is full of shit, and the deeper you dig, the more shit you find.  

    But also remember that this is the modern world, and as a modern industrialized nation single payer is the fairest, most efficient, and cheapest system by far that our country could adopt.  In the end, most of what the GOP argues about the Founding Fathers may be answered with "We don't live in a history book, democracy is founded on the idea that government by the people shall adapt to the changing times."  

  •  just recced the other diary. (0+ / 0-)

    thanks for bringing it to my attention.

    Faby-o, downrec me again. You know I love it!

    by Cheez Whiz on Mon Mar 29, 2010 at 08:48:35 AM PDT

  •  I picture private health insurance in 1798 (5+ / 0-)

    working something like this:

    "I'm sorry sir, but leeches require a two chicken co-pay."

  •  Heh heh. (3+ / 0-)
    Recommended by:
    lockewasright, ohmyheck, FreeLancer

    You said seamen.

  •  Well, you think that's important. I don't. (1+ / 0-)
    Recommended by:

    The same consitutional power that allowed for taxation for that program allows for the current HCR.  The distinction between being "forced to buy government insurance" and "forced to buy private insurance" isn't constitutionally significant.

    •  So the federal government can constitutionally (2+ / 0-)
      Recommended by:
      Larry Bailey, vacantlook

      require me to directly purchase stocks in GM, AIG, or other failing companies on the stock market?  To enact a law that says...

      "Every household is hereby required to purchase 20 shares of GM stock at the current market price.  Failure to do so will result in a fine collected by the IRS."


      •  We already know the MA program is consitutional, (2+ / 0-)
        Recommended by:
        pHunbalanced, LaurenMonica

        Moreover, yes, I think that it would be constitutional...unless forbidden by the "takings" clause of the fifth amendment.  The commerce clause powers are unlimited by any concept of good sense.  It's consitutional to ban interstate and foreign commerce entirely, for example.   Or to make it so that you don't have a choice who to let stay in your hotel or eat at your lunch counter.

        How about this: You can only buy goods or products from American companies, and every time you don't, you have to pay a tax.  Unconstitutional?  Nope, it's an everyday tariff.  

        •  The constitutionality of the Massachusetts (0+ / 0-)

          health care mandate has never been decided in an appellate court of law.  Not even the Massachusetts Supreme Court has addressed the issue, much less the U.S. Supreme Court.

          As for your tariff example, it's inapplicable.  It doesn't require me to buy anything.  A more appropriate example would be that I am required to pay a tax because I DIDN'T buy a certain amount of goods.

          •  From the Wikipedia: (1+ / 0-)
            Recommended by:

            [edit] Legal challenges
            A legal challenge, Fountas v. Dormitzer (Docket No. 2008-121) was filed in Essex Superior Court contesting the fine imposed for a failure to get health insurance as well as the fine imposed for a failure to provide information on a tax return as to whether one has health insurance. Both fines are detailed within MGL CH 111M Section 2 [51] The plaintiff chose trial by jury as the means of dispute resolution.

            The method of collecting the fines was contested as a Bill of Attainder[52] as the fines are collected through the income tax return without any charges ever being filed and the law does not provide for a trial in a court of law to determine guilt. Bills of Attainder are prohibited to the states by Article 1 Section 10 of the US Constitution[53]

            The method of collection, though the income tax return, was also contested as a violation of separation of powers, as only the judicial branch has the power to determine guilt or innocence and the punishment for guilt. Separation of powers in enforced by Article 30 of the Massachusetts Bill of Rights [54]

            The fine for a failure to provide information was further contested as contrary to the right to remain silent as protected by the 5th Amendment and Article 14 of the Massachusetts Bill of Rights. The fine for a failure to provide information was listed as such a compelling. The 5th Amendment extends to proceeding involving "fines, penalties and forfeitures" [55] as such are "criminal proceedings" within the meaning of the 5th Amendment [56]. The right to remain silent as protected by the Massachusetts Bill of Rights does not include a limiting "incrimination" clause as does the 5th Amendment and extends to civil cases. Article 14 states "No subject shall .... be compelled to accuse, or furnish evidence against himself."

            Both fines for the 2007 tax year were the forfeiture of the personal tax exemption, worth about $220, and the fines for that year were contested as a breach of the Massachusetts Constitutional requirement for "proportional taxation". By taking the personal tax exemption away from some but not all taxpayers, the tax code becomes non-proportional. Massachusetts is a flat tax state, and a number of Constitutional amendments allowed a graduated income tax have been repeatedly rejected by Massachusetts voters.

            In addition, both fines were challenged by contesting the health insurance mandate as a "taking without compensation". The taking being of the "owners right to spend his money" resulting in the effective seizure of that money. If the government forces you, though the use of fines, to use your property (money) for a purpose you do not desire but which the government does, then the government has "for all practical purposes" taken your property and deprived you of the use of your money. The Massachusetts Constitution specifically states that money is property. [57]

            Both fines were further challenged as "cruel and unusual". One because it was a fine for the legal exercise of the Constitutionally protected "right to remain silent", and the other because it was a fine for "being frugal". Article 18 of the Massachusetts Bill of Rights[58] states that the constant adherence to the principle of "frugality" within the laws of the Commonwealth is "absolutely necessary to preserve the advantages of liberty, and to maintain a free government." The observance of a principle that is "absolutely necessary to preserve the advantages of liberty, and to maintain a free government" simply cannot be the subject of fines and any law that authorizes fines for such action is contrary to that principle. Article 18 further gives the inhabitants the "right to require" that this principle be observed in the laws of the Commonwealth. [59]

            Judge Kathe M. Tuttman dismissed the case upon a Motion filed by Assistant Attorney General Amy Spector. A petition for a Writ of Mandamus, Docket No SJ-2009-0098, to the Massachusetts Supreme Court, ordering Essex Superior Court to vacate this dismissal on procedural grounds, the failure to provide trail by jury in a dispute over property as requested by the plaintiff, was denied. An Appeal was then filed with the Massachusetts Appeal Court and was given Docket No. 2009-P-0526. A later petition for a Writ of Mandamus, Docket No. SJ-2009-0146, with the Massachusetts Supreme Court, ordering the Appeals Court to vacate the dismissal on procedural grounds, as above, and to return the case to Essex Superior Court for trial by jury, was also denied.[60]

            Every imaginable basis all the way up to the MA supreme court.

            •  Like I said, (0+ / 0-)

              no appellate court has ever addressed the issue.  In the case you decided, the Massachussetts Supreme Court refused to hear the issue.  Any law student can tell you that denial of certiorari to a case DOES NOT INDICATE the court's implicit approval of the previous result.

              Furthermore, the constitutionality of the Massachusetts law in that case was challenged on the basis of "property taking" and "cruel and unusual punishment" grounds.  Completely different constitutional grounds from those for which the national health insurance mandates will be challenged.

              Your example is inapplicable.

              •  Edit: replace "decided" with "cited". n/t (0+ / 0-)
              •  That's not what I'm pulling up: (0+ / 0-)


                Judgment: This matter came before the Court, Ireland, J., on a a petition seeking an order of the Appeals Court requiring that it vacate a dismissal in the Essex Superior matter cited above. Upon consideration thereof, it is ORDERED that the petition be, and the same hereby is, denied without hearing."

                Looks like a judgment on the merits to me.

                But fine: you think that there's been four years and nobody has challenged it because it's so obviously WEAK?  I don't.  I think it's because it's a no brainer for a state law.  

                •  Well you're wrong (0+ / 0-)

                  What was denied was the petition for the appellate court to hear the case.  Hence the phrase "denied, without hearing".  That is NOT a judgment on the merits.

                  Finally, it should be pointed out that states, whose police and welfare powers are broad and general have MORE power to implement something like a health insurance mandate than the federal government, whose powers are distinctly enumerated and limited.

                  So again, your example is inapplicable.

                  •  No, it starts "Judgement". (0+ / 0-)

                    I don't see anything about it being merely a refusal to hear the case.  I see it as a decision that the petition for a writ is denied.  Like it says.

                    Finally, it should be pointed out that states, whose police and welfare powers are broad and general have MORE power to implement something

                    Not when the "something" is interstate commerce.  

                    •  Exactly! It IS a decision for denying the writ (0+ / 0-)

                      But denial of a writ of certiorari by an appellate court is NOT EQUAL TO A JUDGMENT ON THE MERITS!

                      That is basic law school stuff!


                      Conversely, the Supreme Court's denial of a petition for a writ of certiorari is sometimes misunderstood to mean that the Supreme Court approves the decision of the lower court. Such a denial "imports no expression of opinion upon the merits of the case, as the bar has been told many times." Missouri v. Jenkins, 515 U.S. 70 (1995). In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and that the lower court's decision is treated as mandatory authority only within the region of jurisdiction of that court.
                      Wikipedia entry for "Certiorari"

        •  To Play Devil's Advocate...... (1+ / 0-)
          Recommended by:
          thegood thebad thedumb

          In all of the examples mentioned, there's economic activity involved. If I choose not to buy health insurance, how am I involved in economic activity, let alone interstate commerce?

          To use the Commerce Clause, you have to argue Congress has the power to regulate the doing of nothing at all among citizens ("inactivity"), because it has an effect on those that are engaged in economic activity. In Wickard, the court said growing your own wheat, for your own consumption effected interstate commerce in the aggregate. But the people who don't buy health insurance 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).

          •  It's not "choose not to buy insurance." (1+ / 0-)
            Recommended by:

            It's the choice to have medical care.  It's a regulation of the medical care industry and the manner of paying for medical care, not the individual's decision to buy insurance.

            The fact is that everyone has received and is expected to have a bill for medical care in the future.  Everyone who faints on the street gets an EMT.  Everyone who gets a contagious disease is treated.  Then they get billed. Interstate commerce.

            That's why the argument won't go anywhere.  It's premised on a hypothetical, and the law can't be struck down on a hypothetical person that doesn't exist in fact.

            •  What if I want to pay for my own medical care? (1+ / 0-)
              Recommended by:

              Why should I have to buy a private product that I have no intent on using?

              •  What about it? (0+ / 0-)

                What if someone taxes me to support a school district that I have no intention of using?

                •  Stop using "tax" and "mandate" interchangeably (0+ / 0-)

                  Just stop.  They are NOT the same thing.

                  There is a world of difference between the government:

                  1. Requiring individuals to purchase X dollars worth of private corporate stock on the private stock market so as to rescue that company from financial difficulty; and
                  1. using taxpayer money to fund a government bailout of those same companies.

                  #1 is of dubious constitutionality.  #2 is not.

                  •  But they are the same thing. (1+ / 0-)
                    Recommended by:

                    How are they not the same thing to the US constitution?  Where is there a right to be taxed for a school but not taxed for this health care reform scheme?

                    From the individual's standpoint, in both cases he's being taxed for a reason he thinks is bad policy.  But thinking it bad policy and unfair and awful isn't a consitutional flaw for either one of them.  

                    •  Well first of all, (1+ / 0-)
                      Recommended by:

                      I don't pay a tax for schools where I live because I rent, I don't own.

                      You see, a tax is a levy placed upon an economic event.  Somebody buys something, there is a tax.  Somebody earns something, there is a tax.  There is a transfer of moneys, there is a tax.

                      Requiring somebody to purchase something is not a tax, because it imposes a requirement WHERE THERE IS NO ECONOMIC ACTIVITY.  It CREATES an economic activity.

                      •  you are still paying a tax, just indirectly (0+ / 0-)

                        The people you rent from pay property taxes, which come out of your rent, so indirectly, yes, you are paying for it still.

                      •  A property tax isn't a tax on "an event". (0+ / 0-)

                        And even if it was, it's constitutionally permissable to have a poll tax.  

                        Seriously, where are you coming up with this stuff?  I'm really sorry that you feel that because you think something's bad policy, it's got to be against the constitution.  Or because it's never been done before, it's unconsitutional.  That's teaparty level stuff.

                        •  Kindly take your bullshit elsewhere. (0+ / 0-)

                          Teaparty level stuff is your fact-free garbage.

                          Poll taxes are UNCONSTITUTIONAL by the 24th Amendment!

                          Where do YOU come up with this stuff?

                          •  But it had to be made so by an amendment (0+ / 0-)

                            But the poll tax itself, originally, was ruled constitutional, so clearly it is constitutional to have a tax not based on an "economic activity"

                          •  through granted (0+ / 0-)

                            those were state taxes, but I think you could make the argument that, if a state can constitutionally tax a certain way, the federal government probably can too unless explicitly disallowed.

                            On top of this, you also have the argument that the tax is essentially a payroll tax for health insurance costs, which is waived if you either earn under a certain income (and are on Medicaid) or purchase health insurance.

                          •  errr (0+ / 0-)

                            a payroll tax on heath care costs, pardon me

                          •  Actually, no. As I responded to Inland (0+ / 0-)

                            the federal governments powers are narrowly defined and enumerated in the constitution.  State powers are more general and wide ranging.  So no, the two are not comparable.

                            Second, when was the poll tax ever subjected to a federal court challenge?  Do you have a Supreme Court citation for this?

                          •  Breedlove v. Suttles (0+ / 0-)


                            The payment of poll taxes as a prerequisite to voting is a familiar and reasonable regulation long enforced in many states and for more than a century in Georgia.  That measure reasonably may be deemed essential to that form of levy. Imposition without enforcement would be futile. Power to levy and power to collect are equally necessary. And, by the exaction of payment before registration, the right to vote is neither denied nor abridged on account of sex. It is fanciful to suggest that the Georgia law is a mere disguise under which to deny or abridge the right of men to vote on account of their sex. The challenged enactment is not repugnant to the Nineteenth Amendment.


                          •  Nice try. The challenge on that Georgia (0+ / 0-)

                            poll tax was based on the 14th amendment.  The plaintiffs claimed that a poll tax that was cheaper for females than males was unconstitutional. The court's ruling was that there was no violation of the 14th amendment.  Your case is inapplicable.

                            A Georgia statute exempts all persons under 21 or over 60 years of age, and all females who do not register for voting, from a poll tax of $1.00 per year, which is levied generally upon all inhabitants, and which, under the state constitution, must be paid by the person liable, together with arrears, before he can be registered for voting. Held that males who are not within the exemption are not denied the equal protection of the laws guaranteed by the Fourteenth Amendment.

                          •  The federal government has the power to (0+ / 0-)

                            The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises

                            There were two limitations put on this, suggesting that any and all other taxes are constitutional - collecting direct taxes, which was repealed by the 16th Amendment, and taxing "articles exported from any state."

                          •  Thanks for bringing up the 16th amendment (0+ / 0-)

                            For it affirms the fact that capitations, or "head taxes" are illegal.  (Article I, Section 9 of the Constitution)

                            No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

                            In order for the income tax to be legal, the government had to ratify the 16th amendment, which made a specific exception from Article I, Section 9 for income taxes.  

                            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.

                          •  and...soo (0+ / 0-)

                            from what I understand, it's levied as an income tax, which is clearly constitutional

                          •  Oh, for fuck's sake. (0+ / 0-)

                            It made conditioning the vote on payment of a poll tax illegal.  

                            The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

                            You can still have a poll tax, just not connected to the vote. JUST LIKE IT FUCKING SAYS IN PLAIN ENGLISH.

                            I'm going to stop throwing pearls before swine now.

                          •  I see, you mean "poll tax" as "head tax" (0+ / 0-)

                            Per wikipedia:

                            A poll tax is a discrimination-based tax that is a pre-condition of the exercise of the ability to vote.

                            Perhaps you mean to say a "head tax", or capitation?

                            Because that one's easy:

                            Article 1, section 9 of the U.S. Constitution provides:


                            No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

                          •  Okay, I fucking give up. (0+ / 0-)

                            Since when did Article I define state power?

                            I guess the same day that "poll tax" stopped being a "capitation tax".  

                          •  But we're talking about a purported federal power (0+ / 0-)

                            The mandate to purchase health insurance in the current health care bill is a federal mandate, not a state one.

                          •  No, we weren't. (0+ / 0-)

                            We were talking about THERE'S NEVER BEEN NOTHING EVER LIKE THIS BEFORE IN TEH FOREBBER.

                            You know, maybe you should just figure this one out on your own from here on.

                          •  Can you name another instance (0+ / 0-)

                            where the federal government has required ALL individuals to participate in the purchase of a product in a private market at market rates?

                            Just one.

                            YOU are the one who is claiming that this is "like a tax".  Which, a) it isn't; and b) if it were, would be a "head tax" or capitation, which is unconstitutional.

                            I know that these threads can be hard to follow, but come ON!!

                          •  Oh, jesus, please stop, it's starting to depress. (0+ / 0-)

                            The idea that "it's never been done before" could be proof of unconstitutionality makes me ill, particularly when you get to change the "it" to whatever name you think is a winner.  You aren't making an argument against health care reform.  You're arguing against the New Deal, labor laws, environmental regs, Food and Drug Act, and everything else that some doofus can say was never imagined by Thomas Jefferson.

                            It's as dumb as Beck's show but you won't let me turn you off.  

                          •  Of course, I never pointed to the unprecedented (0+ / 0-)

                            nature of this mandate as proof of its unconstitutionality.  So that's a strawman.

                            YOU are the one who is proclaiming the "OBVIOUS" constitutionality of this law as though it were so self-evident. And YOU are the person implying that "THIS THING IS LEGAL BECAUSE IT'S JUST LIKE A POLL TAX"

                            I'm merely pointing out that it isn't an "obviously" Constitutional because 1) it is unprecedented, so no court has ever ruled on this specific issue; and 2) head taxes are not constitutional, except for the specific exception made for the income tax via the 16th Amendment.

                            Perhaps your frustration stems from your own confusion about what we are discussing?

                          •  Um. No. (0+ / 0-)

                            I really don't care if you asked me questions you NOW say are irrelevant.  Nor do I care to meet the burden of showing it to be "obvious".

                            I'll leave you trying to carry the burden of proving an act of congress to be unconsitutional.  Come up with something besides "it's new and I don't like it" and we'll talk.

                          •  You keep beating that strawman to death. (0+ / 0-)

                            Give it a few more good whackings for good measure.

                            Let's compare statements made in this thread, yes?


                            I haven't been able to come to a definitive "yes" or "no" on the issue of constitutionality for the mandate.  On the one hand, the expansion of the Commerce Clause over the last 30 years has become almost a "rubber-stamp" to anything that Congress does.  On the other hand, requiring individual participation in a private market just doesn't "feel" Constitutional.  It is certainly unprecedented.  


                            It's pretty straightforward:  the Massachusetts program shows that a state can do it.  Anything a state can do, the federal government can do, in the area of interstate commerce.  

                            So, according to you, not only is it my responsibility to prove an assertion that I'm not making (again, I have not claimed that the mandate is unconstitutional), but the burden is also on me to disprove your self-assured, unsupported claims?

                            You fail at debate and discussion.


                          •  Which just shows you're doing it wrong. (0+ / 0-)

                            You were wrong from the very start of predetermining that this wasn't a run of the mill tax but a MANDATE of a sort never before seen.  When brought up that it's no different from any of the other taxes that people don't want to pay, you just got hung up on the term and trying to pretend it was like being forced to buy GM stock or a poll tax or something.  

                            The original diary was more on point that your ruminations, which are just the same old shit we get from the teapartiers:  "It's new and I don't like it".

                          •  You mean the original diary in which the (0+ / 0-)

                            diarist didn't even realize that she was confusing "health insurance mandate" with "employer mandate"?

                            LOL.  OK.

                            As for your other points:

                            1. YOU, not I claimed that it was like a poll tax;

                            A property tax isn't a tax on "an event". (0+ / 0-)

                            And even if it was, it's constitutionally permissable to have a poll tax.  

                            Nevermind the fact that Article I, Section 9 of the constitution specifically makes a "capitation" or "head tax" by the Federal government unconstitutional.  Again, you fail to recognize that states can, theoretically, do MORE THINGS than the federal government.  The government's powers are ENUMERATED.  Do you even know what this means?  This means that the federal government has no power EXCEPT in the specific way that the Constitution says it can act.  The states don't have this limitation.  They have GENERAL POWERS.  

                            1. YOU, not I claimed that this health insurance mandate is permissible under the Commerce Clause.  and that is why I said basically, "How do you know?  It's never been done before."

                            I'm not saying that the fact that this is unprecedented makes it de facto unconstitutional.

                            Again, more slowly.

                            I am not saying that the fact that this is unprecedented makes it de facto unconstitutional.  

                            I AM REBUTTING YOUR STUPID, BRASH, SELF-ASSURED ASSERTION that this is clearly constitutional, because, "OMG!  COMMERCE CLAUSE!!!!1"

                          •  Yes, I mentioned the commerce clause. (0+ / 0-)

                            Fact is, your analysis was crap simply because you didn't start with the commerce clause.  It certainly didn't get any better after that.

                            You're welcome.

                          •  You mean my "non-analysis" (0+ / 0-)

                            I never took up the issue of whether or not the mandate was constitutional in my diary.  That was not the point of my diary.  

                            My diary was a simple rebuttal to a confused diarist who thought that the case she cited conclusively proved the constitutionality of the health insurance mandate.  Only later, in her update, did we realize that she thought "mandate" meant "employer mandate", not "individual health insurance mandate":

                            Isn't a mandate to purchase a Healthcare Insurance when your employers is given the right to deduct a part of your pay ? I can be wrong tho.

                            Then again, after your display of logic in this diary, it doesn't surprise me that you think her diary the better reasoned.  LOL.

                          •  No. (0+ / 0-)

                            You asserted there was a constitutionally relevant distinction to be made.  There isn't.

                          •  No. I asserted that the case was inapplicable (0+ / 0-)

                            to the individual mandate, because the system described in the case is something completely different than requiring individuals to engage in an economic transaction with a private entity.  It is a large distinction.  And it may be constitutionally significant, depending on how far the SCOTUS wants to extend the breadth of the Commerce Clause.

  •  The majority of insurance in the 1700's was (2+ / 0-)
    Recommended by:
    pHunbalanced, Larry Bailey

    to hedge against sailing expeditions.

    It was risky to own and operate a ship. The insurance typically protected the investors and financiers of these ships.

    You are correct. Health insurance did not exist in 1798.

    Baby's on fire And all the laughing boys are bitching, Waiting for photos, Oh the plot is so bewitching-- Brian Eno

    by jethrock on Mon Mar 29, 2010 at 09:08:54 AM PDT

  •  It may not be illegal - but it is immoral (4+ / 0-)

    I'm opposed to the mandate because it requires U.S. citizens to buy a product of a private corporation - I'm not arguing that the government can't do that, just that they shouldn't.

    If the product was something everyone wanted, everyone would buy it, and a mandate would be unnecessary. Many don't want it, for their own reasons, and whatever we think of a person's reasoning, we should tend to respect their autonomy.

    I understand and appreciate the argument that it is a 'necessary evil' to prevent the health insurance companies from going bankrupt when they are no longer able to preclude people with pre-existing conditions - but formally that is a 'the ends justify the means' argument.

    It is the same moral framework as the claim that torturing terrorists is OK to prevent civilian deaths from possible terror attacks... or, if one believed that fetuses are human beings, than it is the same type of claim as saying that bombing family planning clinics 'saves more lives than it ends'.

    There were alternatives; mandating people to buy the products of private corporations isn't essential. It was an easy road to a moral conclusion. And it was and is immoral, as with many easy choices.

    "Any plan I sign must include an insurance exchange ... including a public option" President Obama, 7.18.09

    by efraker on Mon Mar 29, 2010 at 09:23:36 AM PDT

    •  Try to own a car (0+ / 0-)

      in almost all states without purchasing insurance.

      Yes you technically can "own" the car, but you can't drive it on public roads.

      So states are way ahead of the curve on this.

      •  I use socialist public transportation (4+ / 0-)

        Or my bicycle. And I don't live in some hyper-urban blue enclave. I live in Ohio, and I get along just fine.

        Its possible to live without a car. Its a false analogy to compare mandatory car insurance with this law.

        "Any plan I sign must include an insurance exchange ... including a public option" President Obama, 7.18.09

        by efraker on Mon Mar 29, 2010 at 09:37:57 AM PDT

        [ Parent ]

        •  There are many places (0+ / 0-)

          Where you can't depend on public transportation.

          Go about 100 miles north of here, where my sister-in-law lives where the nearest bus stop is seven miles away.  I'll repeat that- in NY state, less than 100 miles north of NYC, the nearest bus stop is seven miles away.

          This is not a unique situation.  Far too many people talk about public transportation without literally knowing what in the world they are talking about.

          Try to live without a car, when the nearest bus is seven miles away, the nearest store 4, the nearest doctor 8.

          •  Even so, the car insurance example is still (1+ / 0-)
            Recommended by:

            not analogous.

            First of all, car insurance laws require me to cover the losses that I may impose UPON OTHERS for my potential negligence.  They do not require me to, for example, purchase collision insurance to cover the cost of repairs for my own car, or even cover my own medical expenses.

            Secondly, driving is considered a privilege, not a right.  My driver's license can be pulled for a whole host of reasons:  failure to pass a test, poor driving record, failure to pay child support, etc.  Having insurance to cover harm I cause to other motorists is simply one of those requirements.

            Finally, state powers to police and provide for general welfare are far broader than the federal government's specific, enumerated powers.  So the fact that a state can do it does not automatically mean that the federal government can do it.  (Though admittedly, the Commerce Clause has been VERY expansive over the past 30 years.)

            •  But you haven't addressed (0+ / 0-)

              anything that I said.

              Which goes to show, that the internet is a place where people care about getting their opinions heard, and don't listen to a thing anyone else says!

              There are areas in this nation, where a car is a necessity.  Try to live in one of those, and then talk.

      •  umm...not quite (3+ / 0-)
        Recommended by:
        Samulayo, Kickemout, efraker

        you can self insure if you have a $100k bond and own the car outright.

        •  Not in every state. (0+ / 0-)

          And how many people are willing or able to post a bond like that?  More to the point, who is stupid enough (when they have that kind of money) to risk it when insurance will cost less than the interest they'd earn on a CD for 100K?

          •  As a small business owner (0+ / 0-)

            I self insured my company vehicle...I'm pretty sure you can do it in any state. Although I only know for sure in California, Missouri, and Colorado

            General Electric self insures it's entire fleet.

            An interesting thought though...I wonder if those who can afford to self insure for medical care are going to try and fight this mandate.

            •  Company car different than private. (0+ / 0-)

              Although the risks might be higher for you should something go terribly wrong.

              People often willingly take insurance just for the risk elimination.  For auto insurance, the risks aren't nearly as high as they are for medical. Unless you hit a bus load of kids...

    •  It's about people, not insurance companies (0+ / 0-)

      The supporters of the mandate don't give a crap about the insurance companies, for the most part (especially since all the former supporters of the mandate on the Republican side of the aisle are now decrying their own idea since it's been passed by Democrats).

      The point is that if you have no mandate, but guaranteed issue, all insurance suffers a death spiral. There's an overwhelmingly powerful financial incentive to game the system: basically, you'd have to be a complete drooling moron to buy insurance when healthy, if you're guaranteed to be able to buy it after you get sick.

      But the consequence of having no healthy people, or only stupid healthy people, in the insurance pool is that the cost of insurance premiums equals the cost of care, plus the insurer's take. In other words, you destroy the entire concept of insurance, and end up with individuals footing the entire bill for their care. That's disastrous for most people.

      The only alternatives to mandating private insurance were providing a public option, which clearly this Congress was not willing to do, single payer, which was never on the table, or allowing pre-existing condition exclusions to provide some punishment for opting out of coverage. So the alternatives are either outcomes that were impossible with our current crop of politicians, or a choice to punish the sick for the benefit of the healthy, which I firmly believe is more immoral than the mandate.

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Mon Mar 29, 2010 at 09:46:17 AM PDT

      [ Parent ]

    •  Oh, and have a donut (0+ / 0-)

      for comparing the mandate to torture.


      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Mon Mar 29, 2010 at 09:47:15 AM PDT

      [ Parent ]

      •  apologies for offending you (0+ / 0-)

        Thank you for taking the time to respond, sullivanst. I did explain the analogies:

        ...formally that is a 'the ends justify the means' argument.

        I thought they were good examples of why we shouldn't support 'ends-justify-the-means' ethics.

        I'm sorry that they offended you, but I disagree that they're 'obscene' speech. Yet, that is your individual decision to make, and I respect it.

        "Any plan I sign must include an insurance exchange ... including a public option" President Obama, 7.18.09

        by efraker on Mon Mar 29, 2010 at 10:04:57 AM PDT

        [ Parent ]

        •  It's really not the same though (1+ / 0-)
          Recommended by:

          because the mandate actually benefits the people that are supposedly "harmed" by the mandate. This is extremely unlike torture. I'll take back the donut though since you are at least able to talk rationally about it.

          In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

          by sullivanst on Mon Mar 29, 2010 at 11:03:11 AM PDT

          [ Parent ]

          •  don't take back the donut (0+ / 0-)

            I stand by the point, and don't think its obscene speech - obscene speech being speech that it is appropriate to censor (I'm not sure there is such a thing) - but its demonstrably offensive, judging by the number of people offended by it - ergo, its poor judgment on my part, and should be HR'd.

            That said, I'm not tied to the analogies; they were just convenient examples of the sort of things that ends-justify-the-means ethical reasoning leads to. If you have a clear and inoffensive example of the negative results of the process, I'd be happy to use that instead, and ask for the uprates to be removed, and more HRs added, so that I don't offend anyone else.

            "Any plan I sign must include an insurance exchange ... including a public option" President Obama, 7.18.09

            by efraker on Mon Mar 29, 2010 at 11:27:19 AM PDT

            [ Parent ]

    •  uprated for HR abuse (3+ / 0-)

      Although I do find your comparison to torture and clinic bombing to be offensive.

    •  Why was this HRed, sullivanst? n/t (0+ / 0-)
  •  employer mandate vs. individual mandate (0+ / 0-)
    There was a $100 fee that the captain owed if they didn't pay the $.20/month, which was meant to encourage payment of the headcount.  
  •  Isn't Section 3 just saying (1+ / 0-)
    Recommended by:

    that whoever receives the funds merely has to tell the Secretary of the Treasury about it.  I don't think it's saying that the SoT is the one actually getting the funds.

    The fact that it references "several collectors" would also seem to support this position.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site