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I have been scanning the political blogs in vain for an actual answer for this.

Yes, the argument against them is mostly being pushed by reactionary, partisan, often racist, creeps and hacks.  
Yes, the Obama administration and Democrats are for them.

But is there another example of the Federal government requiring people to buy a product from a private company?

The analogy for the individual mandate has typically been to make the comparison to the requirement to purchase automobile insurance.
But of course that is a requirement by States and State governments under their police power.

Yes, Romney is flip-flopping hypocrite who lies out of both sides of his mouth.  
But he is correct that there is an, at least arguable, difference between a State mandate and a Federal mandate.

Obviously as a single payer supporter, I am in favor of a single universal all-American insurance pool paid for by progressive taxation. That we know there are de facto and de jure examples of. Taxes from the citizenry and residents of the U.S. go to support many more or less universal programs which are carried out directly by the government or by the government contracting with private companies to do them.  But this is not the same as the Federal government requiring individual citizens to contract with private companies themselves.

Over the past several years some "respectable liberals" have tried to make the argument against single payer and for the Hacker-care mandate plan (originally with a moderate version of a public option), by saying that single payer was also a mandate because it required people to have and pay for coverage via taxation.  They chose to ignore the obvious distinction between a government supplied good and service (be it universal pool insurance coverage; social security; military security; unemployment benefits; roads, etc, etc.) paid for by taxes on the one hand, and the Federal government using the police power of the state to require you to buy from a third-party private company.

Now, I am not saying that it is unconstitutional.
I am not saying the 10th Amendment applies.
I am not saying the wingers supporting this are right in their arguments.

But ad hominem attacks against the reactionaries and partisans who are making the argument are not a sufficient answer to the underlying questions. Just because they are schmucks doing it for the wrong reason, is not a valid argument for the validity of the federally enforced individual mandates.

Therefore, I am really and truly asking the question, asking the lawyers and historians within the progressive community (and at dailyKos) to make the argument on its own terms:

  1. Is there another example of the Federal government requiring people to buy a product from a private company?
  1. What is the legal basis for the Federal government requiring people to buy a product from a private company?

Part of where I am coming from is the host of things that the Fedreal governement does NOT do in health care that is indeed left to the Staes. Medical licensure, practice acts, certificate of needs, etc. etc. Clearly in health care the longtime constitutional separation of state and federal powers has put many functions at the state level.

Originally posted to DrSteveB on Fri Apr 16, 2010 at 02:35 PM PDT.

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Comment Preferences

  •  I have no friggin' idea either, Steve, (2+ / 0-)
    Recommended by:
    cowgirl, blue armadillo

    but I'd love to find out.

    It's already been suggested that the mandate will be a case for the Supreme Court, when the time comes.

    Lack of preparation on your part does not constitute an emergency on mine.

    by Colorado is the Shiznit on Fri Apr 16, 2010 at 02:38:52 PM PDT

    •  That, of course, doesn't mean it's illegal, (0+ / 0-)

      any more than it was illegal for Al Gore to have a re-count in Florida.  There are two issues getting mixed together here:  (1) can congress require that people buy insurnace (probably), (2) can any rightwing crackpot legal argument, regardless of its lack of merit, get to the reactionary Supreme Court (probably).

    •  They would have to strike ALL private insurance.. (0+ / 0-)

      ...mandates down to strike this one down.

      For that reason, I think this would be an easy victory...if it even gets that far.

  •  No. I don't believe it's legal. Even if a (5+ / 0-)

    court were to find it was "legal," it's wrong. It sets horrible precedent for the future. What else can we be forced to buy by our government?

    "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

    by Battle4Seattle on Fri Apr 16, 2010 at 02:39:09 PM PDT

    •  You're not 'forced' to buy it. (14+ / 0-)

      You can do without and pay the resulting tax.

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Fri Apr 16, 2010 at 02:42:19 PM PDT

      [ Parent ]

    •  As a normative matter, maybe (1+ / 0-)
      Recommended by:
      it ouhgt not be constitutional, but as a descriptive one - given current tax and commerce clause jurisprudence - it certainly is constitutional.
    •  So if there were a public option (2+ / 0-)
      Recommended by:
      burrow owl, output

      would it now be legal? The government is still forcing you to buy something when you may not want it.

      See here in lies the problem if it is legal with a PO it legal with out it.

      In the choice between changing ones mind and proving there's no need to do so, most people get busy on the proof.

      by jsfox on Fri Apr 16, 2010 at 02:45:00 PM PDT

      [ Parent ]

    •  It's clearly legal. Here's why. (9+ / 0-)

      The only difference between the insurance "mandate" and a plain old tax credit is semantics.


      Consumers who purchase and install specific products, such as energy-efficient windows, insulation, doors, roofs, and heating and cooling equipment in existing homes can receive a tax credit for 30% of the cost, up to $1,500, for improvements "placed in service" starting January 1, 2009, through December 31, 2010.

      What this means is that if you spend $5,000 or more on solar gizmos, then you pay $1,500 less in taxes. In other words, if you don't buy a solar gizmo, then you pay $1,500 more in taxes.

      The healthcare "mandate" works the same way. If you buy health insurance, you pay less in taxes. If you buy no health insurance, then you pay more in taxes.

      The new insurance mandate assesses an excise tax of up to $2,085 per family in 2016 (smaller penalties in 2014 and 2015) for those who do not have "minimum essential" health insurance coverage. Low-income families, Native Americans, undocumented immigrants and some religious groups are exempt.

      The truth is, Congress could have achieved the same result by boosting income taxes by the penalty amount for everyone and then providing a tax credit for people with qualifying health insurance. But such an approach might not spur health coverage as much as the penalty will because people perceive tax credits and penalties differently. However, the tax credit approach is clearly constitutional.

      "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

      by HeyMikey on Fri Apr 16, 2010 at 02:51:30 PM PDT

      [ Parent ]

      •  Exactly! (1+ / 0-)
        Recommended by:

        The only difference is marketing and expectations.

      •  Then this is admittedly a tax increase! (4+ / 0-)
        Recommended by:
        tmo, Chi, cowgirl, output
      •  Wow. That gives new meaning ... (1+ / 0-)
        Recommended by:

        to the word illogic. Here's how the health insurance mandate really works: You either spend ten grand a year on a product from a private company or you pay the fine of seven hundred bucks. Perhaps I'm not much of an accountant, but seven hundred bucks seems cheaper than ten thousand, so what we have is an incentive for people to not buy insurance while the example you give is an incentive for people to buy solar gizmos.

        A tax cut for the wealthy is the opiate of the rightwing masses.

        by edg on Fri Apr 16, 2010 at 03:25:28 PM PDT

        [ Parent ]

        •  Just don't have a heart attack (0+ / 0-)

          or a stroke before you buy that insurance that the government is giving you a disincentive to buy.

          The only thing necessary for the triumph of evil is for Democrats to stay home in November.

          by ahumbleopinion on Fri Apr 16, 2010 at 05:21:17 PM PDT

          [ Parent ]

        •  Logic & incentives not = Constitutionality. (0+ / 0-)

          Suppose you are correct: because of the math, the mandate is actually an incentive to avoid health insurance. That has no bearing on whether the mandate is Constitutional.

          But of course, saving $700 is not the primary reason to buy health insurance. 100 million or so people have been buying it every year, even without a $700 incentive from the IRS.

          "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

          by HeyMikey on Mon Apr 19, 2010 at 07:39:38 AM PDT

          [ Parent ]

      •  The government is providing no service here. You (1+ / 0-)
        Recommended by:

        are fined for NOT buying a product from a private entity.

        "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

        by Battle4Seattle on Fri Apr 16, 2010 at 04:14:42 PM PDT

        [ Parent ]

    •  On what basis? (0+ / 0-)

      You can decide whether you think it's wrong or not, but what is the basis of your claim that it's unconstitutional.  If you're going to make a legal claim, make a legal argument.

      •  Read my other comments for the law bit. (0+ / 0-)

        But here's the basic reason:

        The insurance mandate isn’t a tax. Medicare and Social Security are taxes that we pay to the government. In return, we receive services from the government.

        It’s unprecedented for the federal government to force you to buy a product from the private market, to decide which product qualifies and to penalize you if you don’t buy that product. The government is neither collecting the money you would pay for insurance nor providing the insurance.

        If you don’t buy insurance, you would pay a fine. Even though the penalty would be collected by the Internal Revenue Service when you file a tax return, it’s still a fine for violating a law – not a tax.

        Reflexive rights: you have the right to speak, you have the right not to speak. You have the right to assemble, you have the right not to assemble.

        Until this law, we had the right to enage in commerce and the right not to. Now we are forced to enter into the stream of commerce or fined by our government. Dangerous precedent--what else can the govt force us to buy--cable? high speed internet? pharmaceuticals? etc., etc.

        "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

        by Battle4Seattle on Fri Apr 16, 2010 at 04:13:42 PM PDT

        [ Parent ]

        •  Taxes vs. Fees (0+ / 0-)

          The insurance mandate isn’t a tax. Medicare and Social Security are taxes that we pay to the government. In return, we receive services from the government.

          That doesn't seem to be dispositive.  I pay excise taxes on alcohol and don't receive any alcohol-related benefits.  They are taxes.  They go into the Federal coffers just like any other taxes.  Arguably, something for which we receive a direct benefit is a fee not a tax.  The income taxes we pay are not proportional to the benefit we receive.  As a child I paid no income tax and received a great benefit.  As an adult I pay much more in income taxes, but it's not as if my benefit is proportional to what I pay.

    •  That as much as anything else (2+ / 0-)
      Recommended by:
      Chi, Battle4Seattle

      is why I oppose the law and this aspect of it. This sort of thing sets a horrible precedent. In fact, read this below.

      Check out what candidate Senator Obama had to say about mandates on Feb 5, 2008 on CNN:

      "Here's the concern.  If you haven't made it affordable, how are you going to enforce a mandate.  I mean, if a mandate was the solution we can try that to solve homelessness by mandating everybody buy a house."

      Now granted, from what some are saying it's a weak mandate but who knows.

      From my point of view, mandating people to buy from private companies is fundementally wrong.

    •  precedent has already been set. (0+ / 0-)

      It's over 200 years old.

      "Biden's tears did more for the equality Of the sexes than Palin's presence" - Leah Renna

      by edgeways on Fri Apr 16, 2010 at 05:31:56 PM PDT

      [ Parent ]

      •  sorry, but enactment does not equal (0+ / 0-)

        precedent. precedent equals precedent. was the constitutionality of this law ever actually reviewed any court.

        "Absent hard regulation of the sort of the US has proven very bad at enforcing (see Crisis, Financial) a mandate is just a looting license" - Ian Welsh

        by output on Fri Apr 16, 2010 at 07:14:05 PM PDT

        [ Parent ]

  •  You sure you looked? (4+ / 0-)
    Recommended by:
    tmo, Adam B, Geekesque, pico
    There's a on of stuff out there.  I have two recommendations that will answer your bleg.  Jack Balkin has written defenses of the mandate (google balkin + mandate).  There's been a lot on all sides @ Volokh Conspiracy.
  •  It's structured as a tax. (14+ / 0-)

    Buy the insurance, you don't pay the tax.

    Don't buy the insurance, you do pay the tax.

    Ergo, it's constitutional.

    "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

    by Geekesque on Fri Apr 16, 2010 at 02:40:54 PM PDT

  •  Well Fannie and Freddie (1+ / 0-)
    Recommended by:

    are effectively federal agencies and homes purchased thru them are required to have insurance from private companies. So yeah, that seems to be a precedent. Also, you aren't required to pay a private company if your employer offers coverage. Where I work the company is self insured, we just have Blue Cross manage the paper work.

    Wal*Mart isn't the root of all evil but you can buy the plastic, cadmium-tainted, Chinese knock-off of it there for $4.27

    by ontheleftcoast on Fri Apr 16, 2010 at 02:41:34 PM PDT

    •  the Fannie & Freddie (2+ / 0-)
      Recommended by:
      Chi, ontheleftcoast

      example is sort of a similar example, although exactly how Federal they are is arguable.

      •  But the health care system won't be part (0+ / 0-)

        of the 3 branches of government. It'll be an agency like the IRS, Social Security, or the Federal Reserve. The government has long had such quasigovernmental agencies to do it's job. They operate on the behalf of the government without being part of it. The Paulbots and some others freak out about this but it has been ruled as constitutional.

        Wal*Mart isn't the root of all evil but you can buy the plastic, cadmium-tainted, Chinese knock-off of it there for $4.27

        by ontheleftcoast on Fri Apr 16, 2010 at 02:58:30 PM PDT

        [ Parent ]

        •  All agencies are part of the executive (0+ / 0-)

          which is one of the three branches of government. Their authority derives from laws passed by Congress, and the presidential power to enforce and administer the law.

          BTW, the Federal Reserve isn't a federal agency. It's actually owned by the banks. I've always believed that the Fed actually is illegal as they exist to regulate the money supply and that power was reserved to the federal government.

          However, the Supreme Court feels differently, and has allowed Congress to delegate that role to the Fed.

          "Except for the few...we take home to experiment."
          - Tom Lehrer, "Poisoning Pigeons in the Park"

          by davewill on Fri Apr 16, 2010 at 03:43:22 PM PDT

          [ Parent ]

          •  Hmm (0+ / 0-)

            The Federal Reserve was created by Federal statute.  It would be an extreme position on non-delegation if Congress could create an agency to exercise a power which it possesses.

            Do you think the USPS, FCC etc... are unconstitutional?

            •  It is and it isn't. (0+ / 0-)

              The Federal Reserve System is considered to be an independent central bank because its decisions do not have to be ratified by the President or anyone else in the executive branch of government. The System is, however, subject to oversight by the U.S. Congress. The Federal Reserve must work within the framework of the overall objectives of economic and financial policy established by the government; therefore, the description of the System as "independent within the government" is more accurate

              From The Federal Reserve System: Purposes and Functions

              It's a different beast. Somehow it administers itself, and as we've seen recently is VERY reluctant to answer even to Congress.

              "Except for the few...we take home to experiment."
              - Tom Lehrer, "Poisoning Pigeons in the Park"

              by davewill on Fri Apr 16, 2010 at 04:00:57 PM PDT

              [ Parent ]

      •  100% federal now! n/t (1+ / 0-)
        Recommended by:
        •  Not so much. (0+ / 0-)

          The federal government owns a shitload of preferred stock.

          But the GSEs are NOT federally owned...Just federally influenced...As any company would be by an entity that holds hundreds of millions in its preferred stock.

          you can go buy some FRE for $1.51/share. They are still publicly traded companies.

          in the case of FRE and FNM, it is a corporation insisting that you carry insurance as part of a contractual obligation defined in the mortgage note.

          It is curious to see the periodical disuse and perishing of means and machinery, which were introduced with loud laudation a few years or centuries before. -RWE

          by Gravedugger on Fri Apr 16, 2010 at 03:59:54 PM PDT

          [ Parent ]

    •  Who do you think supplies the employer coverage? (1+ / 0-)
      Recommended by:

      My employer sponsored insurance at my small company is unaffordable to me.

    •  Not analogous. All mortgage lenders (2+ / 0-)
      Recommended by:
      Chi, SteelerGrrl

      (and auto lenders as well) require borrowers to carry liability and casualty property insurance.  Plus Fannie and Freddy are GSAs and technically not  government lenders.    

      "Dulled conscience, irresponsibility, and ruthless self-interest already reappear. Such symptoms of prosperity may become portents of disaster!" FDR - 1937

      by Marie on Fri Apr 16, 2010 at 03:09:54 PM PDT

      [ Parent ]

    •  You don't pay a fine if you don't buy a home. n/t (1+ / 0-)
      Recommended by:

      A tax cut for the wealthy is the opiate of the rightwing masses.

      by edg on Fri Apr 16, 2010 at 03:27:53 PM PDT

      [ Parent ]

      •  yeah, but if your poor the government won't (0+ / 0-)

        make your payments on the house. They'll cover the cost of your health insurance though. And everyone needs a place to live, it really isn't "optional" just unfortunately hard for too many Americans to achieve.

        Wal*Mart isn't the root of all evil but you can buy the plastic, cadmium-tainted, Chinese knock-off of it there for $4.27

        by ontheleftcoast on Fri Apr 16, 2010 at 03:32:01 PM PDT

        [ Parent ]

        •  Only 65-70% of your covered costs will be covered (0+ / 0-)

          the uncovered costs will be 100% yours, and the covered costs will only be paid at around 2/3, which guarantees that sick people wont afford to stay insured, or go bare.

          Thats what happened in Massachusetts. Many people with chronic health issues have been forced to leave the state because they can't afford BOTH health insurance, and the "cost-sharing" they must pay to get care..

          Middle class people with health issues are finding they are falling further and further into debt.

          RomneyCare covers the hospitals costs, but it doesn't cover enough to make healthcare affordable when you get sick. People who get sick or who are already sick, who aren't rich, end up falling through the cracks.

          A lot of people were making it before, when the clinics were free, but now if you go to a clinic, you get signed up for insurance whether you can afford it or not.

          Obama really blew it by not coming out swinging for single payer.

          by Andiamo on Sat Apr 17, 2010 at 04:15:56 PM PDT

          [ Parent ]

  •  We're required to buy a lot of things (1+ / 0-)
    Recommended by:

    from private companies through our taxes.

    •  name some... (2+ / 0-)
      Recommended by:
      Chi, Marie

      by the Federal government?

      It is very much not the same as our tax dollars going to the federal government so that the military can buy a plane from Boeing.

      It is similar as a State telling a car owner they have to buy insurance from Aetna. But in this case it is the Federal government.

      •  What about houses? If you buy a house, (7+ / 0-)

        you don't pay tax on a part of your income. So you can think about this portion of the income tax as a tax that you have to pay for not buying a house. How is it different from HIR?

      •  Flood Insurance. (2+ / 0-)
        Recommended by:
        Adam B, zbbrox

        Or the 1792 Militia Act requiring men aged 16-60 to register for their militia and purchase guns, ammo, ammo boxes, swords, and bayonets.

        •  1792? (0+ / 0-)

          I buy flood insurance only if I buy a house in a flood-prone area.

          I can choose not to buy a house.

          I can choose not to live in a flood area.

          Heh...I guess when the insurance mandate hits, I can also choose not to live in the United States. At least in other industrialized countries I'm guaranteed health care, not shit insurance.

          ...And The 1792 Militia Act? That's a neat one. Repealed in 1903 by the Dick Act. Too bad it's not on the books anymore. That would be interesting.

          It is curious to see the periodical disuse and perishing of means and machinery, which were introduced with loud laudation a few years or centuries before. -RWE

          by Gravedugger on Fri Apr 16, 2010 at 04:06:40 PM PDT

          [ Parent ]

          •  point being (0+ / 0-)

            that a law passed in 1792 - arguably by the people who BEST knew what the Constitution meant - required people to buy products from private companies.  A "strict constructionist" (I put it in quotes because I don't believe such a thing really exists) should have to look no further.

            You could also make the connection that the militia act, like this act, was for the general welfare and common defense.

            The militia act also says:

            Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: [words added in 1795:] and be incapacitated from holding a commission in the militia, for a term not exceeding twelve months, at the discretion of the said court: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine.. Source

            So the penalty for not following orders is in effect, a fine/tax - $ to the government.  George Washington had no problem signing this law.

      •  How about... (0+ / 0-)

        ...all the roads and bridges and stuff we've bought from private companies with our tax dollars?

  •  Everybody doesn't have to buy (3+ / 0-)
    Recommended by:
    Chi, Marie, Battle4Seattle

    auto insurance - only those who want the state to issue them a driver's license.  If you don't want a driver's license, there is no requirement to purchase insurance.

    "Differences in political opinion are as unavoidable as, to a certain point, they may perhaps be necessary." George Washington

    by civil wingnut on Fri Apr 16, 2010 at 02:43:12 PM PDT

  •  There is no requirement to buy anything. (11+ / 0-)

    If you don't buy HCI then you pay an extra tax.
    You have a choice, HCI or a tax.
    You are not required to buy a house. You are not required to have children or get married, but the government gives you tax advantages if you do.

    For the tax on being uninsured you get the right to buy in HCI and have your preconditions covered. You also get the right to use public clinics to get medical care.

    So enough of this "required to purchase" crap.

    We shall overcome, someday. Yes we can.

    by Sam Wise Gingy on Fri Apr 16, 2010 at 02:45:07 PM PDT

  •  Reagan's Solicitor General seem to think so (0+ / 0-)


    Also, this.

  •  It depends (1+ / 0-)
    Recommended by:

    Okay, this is going to go round and round a bit. Bear with me.

    The federal government has the right to tell U.S. citizens, or anyone else for that matter, "You must buy health insurance." That's just words. The federal government can say pretty much whatever it wants.

    But the federal government DOES NOT have the right to impose criminal penalties for NOT buying health insurance. In other words, the government can say "You must buy health insurance" all it wants to, but if it then says "If you don't, we'll try you for it in federal court and if convicted you will be subject to a fine and up to 1 year in prison," then the SCOTUS would be acting properly to strike that down. A state government could do this. The federal government cannot.

    BUT what is actually contemplated by the new health-care law is not criminal penalties, but rather a tax on those who do not buy health insurance. The federal government clearly DOES have the authority to lay and collect taxes -- says so right there in Article I, Section 8, clause 1 of the Constitution.

    AND, the government can prosecute people and punish them for wilful refusal to pay taxes, which means conceivably it could fine or imprison people for refusing either to buy health insurance or to pay the tax imposed as a penalty.

    BUT, it could be argued that this tax, if enforced, amounts to a back-door imposition of criminal penalties for something the federal government is not allowed to require as part of criminal law. The use of an ennumerated power as a back-door method of imposing a rule or regulation that the federal government is not empowered to impose was ruled unconstitutional by the Supreme Court in striking down the Agricultural Adjustment Act.

    WHICH may be why the new law does NOT impose any criminal penalties for refusing to pay the tax.

    The whole thing is a gray area and dubious and, as structured, the law is pretty much unenforceable, which might mean it would pass court scrutiny -- but so what?

    •  It's a fine. Just like if you smoke in a (0+ / 0-)

      restaurant, you and the owner can be fined. It's not a tax--a tax is something you pay to the government to get a service from the government.

      In this case, the government provides no service, unless you fall into the medicare/medicaid exception.

      "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

      by Battle4Seattle on Fri Apr 16, 2010 at 02:57:19 PM PDT

      [ Parent ]

      •  If it is a fine, then the issue becomes (1+ / 0-)
        Recommended by:

        whether Congress has the authority to regulate that conduct and impose that fine under its authority to regulate interstat commerce.  (the Commerce Clause.)  The SCOTUS may well hold that the power to regulate interstate commerce includes the power to force people to enter a certain type of interstate commerce or pay a fine.  It just has never done so to date.  

        •  But this is not about regulating interstate (0+ / 0-)

          commerce. Of course, they have the ability to regulate health insurers. This is about compelling American citizens to enter a contract with a private health insurer.

          "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

          by Battle4Seattle on Fri Apr 16, 2010 at 03:05:57 PM PDT

          [ Parent ]

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

            which is why it is an open question.  The bill itself says its authority comes from the Commerce Clause.  The legal question is whether the constitutional power to regulate instate commerce includes the power to penalize people who decide not to enter a particular kind of interstate commerce (health insurance).  

            •  I don't think it's such an open quesion. The 10th (0+ / 0-)

              Amendment reserved the right to enter inividual commerical contracts to the citizen.

              "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

              by Battle4Seattle on Fri Apr 16, 2010 at 03:50:17 PM PDT

              [ Parent ]

              •  US has arguably included insurance in their WTO (0+ / 0-)

                committments, "BattleforSeattle".

                Nobody here seems to get that.

                But that's silently controlling their actions on everything.

                Healthcare is subject to international trade commitments.

                Its not just a national trade issue, its potentially an international trade issue.

                Please read the PDF above, which despite the title, is actually about how that could play out, according to a Canadian think tank.

                Obama really blew it by not coming out swinging for single payer.

                by Andiamo on Sat Apr 17, 2010 at 05:05:33 PM PDT

                [ Parent ]

      •  The Govt Most Certainly Does (2+ / 0-)
        Recommended by:
        kareylou, ahumbleopinion

        provide a service if you don't buy health insurance.  It becomes (i.e., we the taxpayers become) the payor of last resort for uninsured/underinsured patients who have run out of assets and income to pay for their treatment.  A tax to cover a small portion of the actuarial risk to the government (us) of a person's lack of insurance seems to me to be a wise fiscal policy.

    •  If it is a tax, then it is probably (2+ / 0-)
      Recommended by:
      Catesby, Battle4Seattle

      a direct tax not apportioned among the states and therefore unconstitutional under Article I, section 9.  

      I really don't think it is a tax.  It seems to me pretty clearly a penalty, simply enforced through the tax mechanisms.  

    •  You should read the next section (1+ / 0-)
      Recommended by:

      of the Constitution - section 9.  It clearly says:

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

      That so restricted the ability of the Federal government to tax the population given in Article 8, they actually had to pass a Constitutional Amendment in order to collect income taxes.

      Part of the 'taxes' are clearly defined in this law as a flat tax on individuals - ie, a capitation or head tax.

      So either way you look at it, there is a problem.  I have no idea why they didn't make the whole fine/tax a percentage of income, as there would be no issue then.

    •  in other words (0+ / 0-)

      it depends.

      To keep our faces turned toward change, and behave as free spirits in the presence of fate, that is strength undefeatable--Helen Keller

      by kareylou on Fri Apr 16, 2010 at 07:27:20 PM PDT

      [ Parent ]

  •  Commerce Clause Jurisprudence (2+ / 0-)
    Recommended by:
    HeyMikey, kareylou

    To answer the question, you need to read up on Commerce Clause jurisprudence, including U.S. v. Lopez 514 U.S. 549 (1995).

    People seem to have this weird idea that they can answer questions of Constitutional Law by reading the Constitution and saying what they think it means.  That's just not the way that it works in our system.

    •  state vs. federal functions in health matters (1+ / 0-)
      Recommended by:

      Part of where I am coming from is the host of things that the Fedreal governement does NOT do in health care that is indeed left to the Staes. Medical licensure, practice acts, certificate of needs, etc. etc. Clearly in health care the longtime constitutional separation of state and federal powers has put many functions at the state level.

    •  Yes, and scholars differ on how these precedents (1+ / 0-)
      Recommended by:

      would apply:

      Q. Many Constitutional scholars, including all of those at a recent UW forum, contend this suit has no merit. How do you respond?

      A. There has been robust debate on this issue across the country. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown Law Center, is one of many law professors who agree with the states.

      He and others point to two recent cases where Constitutional law professors predicted the court would uphold laws banning handguns within 1,000 feet of a school (U.S. v. Lopez) and permitting women to sue rapists in federal court (U.S. v. Morrison) — yet the U.S. Supreme Court struck these laws down because they exceeded Congress’ power under the Commerce Clause.

      In a New York Times interview, Barnett says, "The individual mandate goes far beyond these previous acts. Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law. Telling someone how they must do something is one thing; commanding that they must do something is entirely different."

      "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

      by Battle4Seattle on Fri Apr 16, 2010 at 02:59:08 PM PDT

      [ Parent ]

      •  This may be wishful thinking on Barnett's part (1+ / 0-)
        Recommended by:

        He seems to be saying that the Court could surprise us.  Well, yes, they can always overrule Lopez, but that's seems highly unlikely given that that would overthrow all of Commerce Clause jurisprudence.  If the Court applies the test from Lopez, then this is certainly constitutional legislation.

        Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.

        •  The question is whether (1+ / 0-)
          Recommended by:

          economic inactivity -- deciding not to buy insurance -- will be treated the same as economic activity -- deciding to grow wheat or even an illegal commidity like marijuana.

          If this is upheld, it will stand for a new principal -- that economic inactivity also comes under the purview of the Commerce Clause.  

          •  Umm, no (0+ / 0-)

            The Court could find the PPACA constitutional without formulating any new principle whatsoever.  All they have to do is follow the Lopez test.

            •  It would be an expansion (1+ / 0-)
              Recommended by:

              The SCOTUS has held that engaging in commercial activity -- growing wheat or marijuana -- can subject you to Commerce Clause regulation even if you aren't selling it in interstate commerce.  That's where that language comes from -- engaging in commercial activity, i.e., doing something, can subject you to commerce clause regulation. That's the "economic activity" part of that quote.  The "economic acitivy" in those cases was DOING SOMETHING -- i.e., growing a commodity.  Congress could regulate your doing something -- the growing of a commodity.  The SCOTUS has never held that the decision NOT to engage in commercial activity subjects you to commerce clause regulation.  They may go there, of course.  It's just that they've not done so yet.  

              •  No it wouldn't (0+ / 0-)

                There no expansion unless the Court chooses to expand.  An opinion that says "We apply the principle from Lopez" would not expand anything.  You really need to distinguish between the holding in a case and the judgment.

                •  I am a lawyer, and (0+ / 0-)

                  I look at holdings. The decision itself --- and the reasoning of the majority -- is the precedent.  That's why, for example, the idea that "separate but equal" (Plessy) is unconstitutional (Brown) is the precedent.  The judgment in Brown said nothing about that -- the judgment just says Brown wins.  It is the decision that explains why -- and subsequent litigants have to live or die by the discussion and reasoning in the opinion.  It is the decision itself -- and the language in the majority opinion -- that is cited in precedent.  What is the "principle from Lopez"?  It is the language and holding of that decision.  

                  •  Well (0+ / 0-)

                    You seem to be saying that it would be a expansion of Lopez since it would be a new fact pattern.  That doesn't make any sense.  Courts apply an existing legal principle to a new fact-pattern all the time without altering the legal principle already established.

                    •  No, I'm saying it would be an expansion of the (0+ / 0-)

                      law either way. When the Court found commerce clause regulation triggered by non-interstate activity, it premised that holding on the fact that the individual regulated had engaged in commercial activity, and that the commercial activity is what gave rise to the commerce clause regualtion. If you read the cases, that is the lynchpin of the holding -- that the person engaged in commercial activity by growing a commodity that COULD BE sold (even if it wasn't sold by that person. (In the marijuana case, it was illegal commercial activity, but the Court said it was commercial activity nonetheless).

                      The Court has never held that choosing NOT to engage in commercial activity can trigger commerce clause regulation.

          •  Exactly and that is frightening. It's saying (0+ / 0-)

            Americans, in certain instances, must engage in commerce or they will be fined by the federal government. That's a true corporatocracy, imo.

            "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

            by Battle4Seattle on Fri Apr 16, 2010 at 03:45:15 PM PDT

            [ Parent ]

        •  But what was the economic activity in Lopez? (0+ / 0-)

          "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

          by Battle4Seattle on Fri Apr 16, 2010 at 03:44:00 PM PDT

          [ Parent ]

  •  There is no mandate (0+ / 0-)

    The Federal government is not going to force you to buy insurance. I know that everybody and his dog has bought into the idea that there is such a mandate, but there isn't. The administration dropped the ball in not addressing this myth.

    You don't have to live in a fantasy world to write science fiction, although it seems to work for Orson Scott Card.

    by mswaine on Fri Apr 16, 2010 at 02:51:51 PM PDT

    •  Its truethey wont deal with the problem sensibly (0+ / 0-)

      with single payer, and the problem can't be dealt with any other way at this point..

      SO they let the insurance companies write a bill and that will get the Dems kicked out of office next year.

      If by some miracle the bill survives four years, between the two of them they doomed it to inevitably go into the classic death spiral, so its doomed anyway.

      And this country is doomed, by this.

      I think the GOP will then proceed to waste as long as THEY can, and by then the economy will have kicked. Everyone who can, will have left for Aruba or Grand Cayman or wherever they go.

      Then there is a financial crisis money becomes worth much less, IMF comes in, says "pay your debts", no more social security, no more medicare,  and taxes go up.

      Obama really blew it by not coming out swinging for single payer.

      by Andiamo on Sat Apr 17, 2010 at 04:53:06 PM PDT

      [ Parent ]

  •  state vs. federal function in health matters (1+ / 0-)
    Recommended by:

    Part of where I am coming from is the host of things that the Fedreal governement does NOT do in health care that is indeed left to the Staes. Medical licensure, practice acts, certificate of needs, etc. etc. Clearly in health care the longtime constitutional separation of state and federal powers has put many functions at the state level.

    •  Medicare/ Medicaid/ VA/ FDA/ FSA/ HSA/ ERISA? (1+ / 0-)
      Recommended by:

      There is a huge chunk of health care that is done by the federal government already. There is nothing unprecedented about the federal government getting involved in health care.

      •  There is no question, I think (0+ / 0-)

        that health care is part of interstate commerce.  

        The question is whether Congress, under its power to "regulate" interstate commerce, can tell people that they have to enter a particular kind of interstate commerce or pay a fine.  

        The SCOTUS has never held that the power to regulate interstate commerce can extend to a decision NOT to engage in commercial activity. In every case thus far, a person or entity had to engage in some commercial activity before he/it could become subject to Congress' regulation under the Commerce Clause.  The SCOTUS may well hold that Congress can, but it has not done so yet, primarily because Congress has never passed such a law until now.  

        •  Yes. It really comes down to this: Does the (0+ / 0-)

          federal government have the power to compel Americans to enter into commerce? If an American fails to enter into the stream of commerce in a very specific way (enter a contract with a private health insurer), can the federal government fine this person for failing to enter into that contract?

          "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

          by Battle4Seattle on Fri Apr 16, 2010 at 03:41:32 PM PDT

          [ Parent ]

      •  True. But all the things you cited involve a (0+ / 0-)

        service the Federal government provides.

        "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

        by Battle4Seattle on Fri Apr 16, 2010 at 03:39:33 PM PDT

        [ Parent ]

        •  Not so. You are forced to pay for (1+ / 0-)
          Recommended by:

          Medicare and Medicaid. There is no choice in the matter neither, unlike the health insurance mandate. VA hospital i likewise supported by the general tax fund. ERISA mandates what employers can or cannot do.

          •  Yes, but medicare and medicaid are services the (0+ / 0-)

            government provides.

            "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

            by Battle4Seattle on Fri Apr 16, 2010 at 04:34:50 PM PDT

            [ Parent ]

            •  All drugs made by for-profit corp. (0+ / 0-)

              the Medicare drug benefits is exactly taking tax payer money and giving it to the drug companies.

              •  Yeah, and I believe that stinks, but most (0+ / 0-)

                government programs are imperfect.

                Nevertheless, medicare/medicaid are far different than this mandate as it applies to those who will be forced to buy a traditional medicine policy from a private (not to mention corrupt) industry. Government providing no service, just acting as a broker/collection agency for private companies.

                "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

                by Battle4Seattle on Fri Apr 16, 2010 at 04:58:47 PM PDT

                [ Parent ]

  •  If you really want a discussion of both sides (11+ / 0-)

    this is the best discussion I've seen.  It's a debate between respected legal minds for and against -- and yes, there are respected legal minds who think that the constitutionality is at least an issue.  

    Congress does not have plenary power to do what it wants.  Its powers are listed in Article I, Section 8.  The bill itself purports to be under the Commerce Clause, that provision that allows Congress to regulate interstate commerce.  While that clause was considered pretty broad since at least the years of FDR, there has been a movement, especially among conservatives, to have the SCOTUS recognize that there are limits to what Congress can do under the Commerce Clause.  If the mandate is considered constitutional under the Commerce Clause, it would be an expansion, as the SCOTUS has never held that Congress' power to regulate interstate commerce includes the power to effectively force people to enter interstate commerce (buy private insurance) or pay a fine.  They may hold that, but it would be an extension past existing law.  

    The alternative argument is that it is a tax.  However, Congress' power is limited there, as well.  Congress cannot impose a "direct tax" without apportioning it among the states. (A VAT tax, or a national sales tax, is probably not a direct tax, for example).  That is why there is a 16th Amendment allowing Congress specifically to impose a "tax on incomes" without apportioning it among the states.  Since this (if it is a tax, and not regulation) would pretty clearly be a direct tax, it would have to be an income tax to be constitutional.  Frankly, I don't buy that argument.  A tax both has to be triggered by a taxable event and then measured by something.  For an income tax, the taxable event is money coming to you -- "income."  Then the tax code defines how to measure how much tax you pay.  In this case, this is a tax on a failure to take action -- not buying insurance.  (It seems more of a penalty to me, with the penalty measured by how much income you have.)  At any rate, if it is a tax, I kind of doubt it would be considered an income tax.  

    Anyway, read that debate I linked to and see what you think. While the Supreme Court, in the interest of upholding a major piece of legislation, may well hold that the mandate is constitutional, the arguments that it is not constitutional are by no means frivolous, as some would have you believe.  

    •  thanks (3+ / 0-)
      Recommended by:
      claude, Chi, Battle4Seattle

      the major policial blogs have been remiss in their coverage of this. just pointing out the partisan hackery is not sufficient.

    •  Where does the Constitution state that (0+ / 0-)

      a tax on income must be triggered by a 'taxable event?'

      "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

      by Geekesque on Fri Apr 16, 2010 at 03:17:21 PM PDT

      [ Parent ]

      •  That's just the nature of a tax (3+ / 0-)
        Recommended by:
        Chi, VClib, Battle4Seattle

        a tax is triggered by doing something.  You buy something, you own property, you die, you earn money, something.  You have to know ahead of time that IF you do something, you will be subject to tax on that action, as well as how much.  There's case after case that says that.  

        An income tax is just what it says -- a tax on money that comes to you as income.  If, for example, Congress tried to say that, in 2012, I had to pay tax on money I had saved over the years (not on the interest, but on the principal that was income years ago) that would not be an income tax and would likely be unconstitutional.  

        I frankly have a hard time seeing a court buy the argument that this is an income tax, as the general understanding of an income tax -- and certainly the understanding behind the 16th Amendment -- is that the tax is triggered by money coming in -- income -- and that, without income, there is no tax.

        In this case, let's say I got a million dollars in 2008 and just stashed it in my house -- no further income since then.  I've just  been pulling a little out here and there to pay some bills.  So, 2014 comes around -- I've got no income, but I have to pay this tax for not buying health insurance.  How can that possbily be an income tax?  I'm taxed even though I have no income.  

        •  A flat tax would be constittional, no? (0+ / 0-)

          There's no constitutional requirement that income tax be proportional to income.

          "[R]ather high-minded, if not a bit self-referential"--The Washington Post.

          by Geekesque on Fri Apr 16, 2010 at 03:26:55 PM PDT

          [ Parent ]

          •  Yes, if it is a "tax on incomes" under (1+ / 0-)
            Recommended by:

            the 16th Amendment.  

            As far as I can tell, this is not a tax on incomes. It is pretty clear what was meant by a "tax on incomes" when the 16th Amendment was passed and ratified (there had already been as SCOTUS case holding an income tax unconstitutional, and the 16th Amendment was a response to that case) and frankly I don't think this comes within that.   I can be worth a bunch of money, but have no income.  I owe no income tax, but I still think I'd pay a penalty -- or a "tax" -- if I decided not to buy health insurance.  

  •  Supreme Court is a political body.... (1+ / 0-)
    Recommended by:

    that happens to couch their personal political values in the argot of selective choices of precedence.  If there were definitive answers of close questions, we would not have the abundance of 5-4 decisions, that usually reflect said political values.

    Each member of the court has access to the same facts, the same relevant precedents and statutes.  They choose to decide how much weight to give, what strand of thinking to use, based on the outcome that they desire.

    Since mandates do not go into effect until 2014, no case can be brought based on a law itself, but only on actual harm which must be shown by the law.  By that time much will have happened predicated on the entire law taking effect.

    The court is not oblivious to this, so for them to overrule this law at that time would be putting their own institution, the court, at risk.  This was done when the court overruled much of the New deal in the early 1930s, causing an attempt to change the number of justices that was unsuccessful.

    The court has mostly restricted the catch all commerce clause on relatively trivial cases, such as a federal law that restricted guns near schools.  Even Scalia when asked whether he considers himself an originalist responded wryly, "No, we lost that battle decades ago."  

    •  I doubt that the courts will wait (0+ / 0-)

      until 2014 to take a look at this. There are plenty of good arguments that people are suffering actual harms today as they prepare for what will happen then under this law. Plus, other elements of the bill itself go into effect immediately, which brings the whole thing into play. Then there are the 10th Amendment arguments, which certainly are triggered immediately, etc., etc. . .

  •  Does the federal government require (2+ / 0-)
    Recommended by:
    Lost and Found, aarons55540

    aircraft owners to buy insurance?
    Does it require nuclear power operators to buy insurance and to provide evacuation plans?

    •  Everyone in those scenarios (1+ / 0-)
      Recommended by:

      still have a choice.

      The Feds don't require everyone to buy aircraft insurance or provide nuclear plant evacuation plans.  Only if you want to partake in certain activities.  For example, you only need insurance meeting Federal requirements if you fly interstate or overseas.  However, the States certainly make you buy insurance just to take off.

      I think that makes it considerably different.

    •  What does this have to do with every individual (0+ / 0-)

      being compelled by the federal government to buy health insurance?

      Are the examples you cited under Federal law? Second, you can choose not to have an aircraft. The second example is an private entity not an individual, and again, they can choose not to operate a power plant.

      You can't choose not to have a body.

      "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

      by Battle4Seattle on Fri Apr 16, 2010 at 03:29:04 PM PDT

      [ Parent ]

  •  I used to have similar concerns. (0+ / 0-)

    I should note that my ConLaw II professor was the attorney who argued the last major Commerce Clause case before the court (and lost), so I was introduced to the right-libertarian school of analysis, and I was unconvinced by early defenses of HCR as an exercise of Commerce Clause power.

    But when I saw that this is being structured as a tax credit that the non-insured won't be eligible for, it made much more sense, and seemed eminently constitutional.

    While I agree the issue would be murkier if this were simply a Commerce Clause/Necessary & Proper Clause case and not a tax powers one, I think the argument for extending the Commerce Clause to mandate individuals make certain purchases is actually fairly solid.  The best counter-argument that I know of is a 9th Amendment claim that the freedom to choose not to enter into a private contract is a natural right, but the 9th is...well, it's the 9th, you know?

    "When those windmills start to chop people up, tilting at them may not only be rational, but may become a necessity." -arodb

    by JR on Fri Apr 16, 2010 at 03:34:26 PM PDT

  •  Here's my AG on the subject. He's a Republican, (1+ / 0-)
    Recommended by:

    but I voted for him and am very glad I did. He's been an excellent AG. I agree with all the statements I've heard him make about this subject.

    The video.

    "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

    by Battle4Seattle on Fri Apr 16, 2010 at 03:36:10 PM PDT

  •  It may have to be addressed by the Supremes (0+ / 0-)

    I would have to believe there is a substantive argument that the Reform Law will be found constitutional under any one of three theories:

    1.  The Supremacy Clause
    1.  The Interstate Commerce Clause
    1.  The General Welfare Clause

    I have looked but have not found where this issue has ever been addressed by the Courts.  As I understand the new Law, it mandates every person to purchase health insurance if they are not currently covered.  However, those who are not currently covered have an OPTION to purchase insurance or to pay an annual TAX (fine).  The General Welfare Clause gives Congress, almost, unfettered authority to tax for the general welfare.  In my opinion, the Court should focus on the option to purchase insurance or to pay a tax (fine) issue.  The Court should find that the mandate in the new Law is not a true mandate but rather an option and therefore the new Law is not forcing anyone to buy insurance.  Even though the language of the new Law may not call the "fine" is a tax, the Court would probably treat the "fine" as a tax anyway. And because Congress has extensive powers to tax for the general welfare, the new Law should be found constitutional.  I am a lawyer but not a constitutional lawyer, so this is just an opinion based on a superficial reading of constitutional case law.  Sorry, I know this doesn't help much, but until the Supreme Court interprets the new Law all anyone can give you is just an opinion.    

    •  But this is a tax for NOT engaging in an economic (1+ / 0-)
      Recommended by:

      activity, defined by the federal government. The federal government provides no service, yet punishes the individual for NOT entering a contract (the terms of which are defined by the federal government and the insurance company). The individual has little to no bargainning power and the terms are pretty much non-negotiable. You're right, it's unchartered territory.

      I hope the court sides with individual liberty or, seriously, welcome to corporatocracy in a major way. If the government can force you to buy this, it likely can force you to buy almost anything.

      "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

      by Battle4Seattle on Fri Apr 16, 2010 at 04:31:01 PM PDT

      [ Parent ]

      •  Govenment forces you to go to school (0+ / 0-)

        And all text books are published by for-profit publishers.

      •  Would you rather (0+ / 0-)

        pay the medical expenses for the person who chooses not to purchase an insurance policy to cover the cost of their medical care?  You certainly have that option, if you care to.  Or, those who choose not to pay for an insurance policy can be turned away from medical services, or they can be required to pay up front before medical services are provided.  Frankly, all of these options sound very unattractive.  What the Gov't is doing is keeping you from mandating that I pay your medical expenses by requiring you to be responsible.  It's keeping you from stomping all over MY individual liberties.  This fact is often lost in the discussion.  If you don't have insurance and can't pay for your medical care, I have to.  Where's the liberty in that?  And whether the tax is for engaging or not engaging in an economic activity is of no moment,  Congress still has the power to tax it if you take that option.

  •  My understanding, you're not required (1+ / 0-)
    Recommended by:

    to buy insurance.  You're just required to pay a tax if you don't.  (Or you get a tax waiver if you buy insurance.  Something like that.  On theory that, if you're uninsured, you're costing everyone else.)

  •  Constitutional rule: "first time for everything" (0+ / 0-)

    Is there another example of the Federal government requiring people to buy a product from a private company?

    Maybe.  So?  

    You're confusing "this is never been done before" with precedent.  

    Precedent controls.  But "never been done before" isn't legal precedent; it simply means that because Congress has never passed a law requiring a purchase from a private company, there is no precedent.

    Everything had a first time.

    Legal basis: Power to levy taxes, regulate interstate commerce, and the additional power to do all that is necessary and reasonable to exercise those powers.

  •  Are you all not aware of Part D? (2+ / 0-)
    Recommended by:
    Chrisfs, ahumbleopinion

    I am constantly amazed that no one seems to know that the Republican Part D of Medicare works the same way.  I sold it for a private company...not proudly. I was to emphasize the penalty if they chose not to take it. Because of course you must get everyone on for it to work.

    We seriously thought it would never be collected but it is. There is a cumulative percentage for every year you were not on Part D.  So ex: 10 years 10% more premium forever.

    If pro and con are opposites, wouldn't the opposite of progress be congress? Unknown

    by leighkidd on Fri Apr 16, 2010 at 04:46:21 PM PDT

  •  Yes. The militia act of 1792 is one (0+ / 0-)

    and John Adams REQUIRED all seamen to purchase health insurance.  PLUS, Medicare and Social Security are MANDATORY insurance premiums.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White

    by zenbassoon on Fri Apr 16, 2010 at 04:47:04 PM PDT

  •  My guess is yes (0+ / 0-)

    Congress can levy taxes. Taxes go to the government. Government can outsource many of its functions. Why not just skip the governmental middle man and force taxpayers to pay their 'medical insurance tax' directly to the outsourcing companies?

    I don't know, I'm not a lawyer.

    "As God is my witness, I thought turkeys could fly."- Arthur Carlson

    by bobinson on Fri Apr 16, 2010 at 04:53:32 PM PDT

  •  Auto insurance mandates are only for liability (0+ / 0-)
    and not comprehensive coverage, and that's the key distinction to note, which I think is a more germane distinction than whether the mandate is federal or state imposed.

    The idea being that, if something you do might, at random happenstance, cause damage to other people, then it is fair to ask you, to the extent you can afford, to pay and get insurance to cover those potential damages to other people, which in the case of auto insurance is liability coverage.

    What is the equivalent of liability auto insurance for healthcare coverage? Evidently that would be catastrophic and emergency room coverage. For example, if you get hit by a bus and fall unconscious, you will be rushed to the ER and treated to try and save your life, and that costs some money. On the other hand, if you get cancer and don't wish to get it treated, you are not harming anyone else but yourself, and hence the government cannot impose a mandate upon you to pay insurance to get your cancer treated (whether the insurance companies would honestly and cost-effectively deliver the care you need after taking your money is another story.)

    Based on this, I think only that "liability healthcare coverage" can be mandated, and not what we have as passed.

    The "it's not a mandate, it's a tax" argument is poor, and the arguments trying morph the mandate into an alleged "subsidy for the insured" are specious.

  •  I think it's really good question (0+ / 0-)

    The Commerce Clause has been given an increasingly expansive reading by the Supreme Court over the past 80 years or so. If this mandate is upheld, it would be a further expansion, but not one out of line with the trajectory.

  •  It's legal because it's a tax, examples (0+ / 0-)

    It's legal because it's a tax not an actual mandate. If you don't have insurance, you pay a tax.
    If you're poor enough, you don't even pay a tax.

    As far as examples, after a few moments of thought,
    I have some, however they are on the whimsical side.
    you are required to buy a car with seatbelts. Seatbelts are mandated in every car, so if you buy a can you are 'forced' to buy seatbelts.
    Indecent exposure laws require you to buy clothes if you want to go outside.

    You must buy a pen or a computer or buy computer time to fill out an income tax form. The library may have internet access, but it may not.

  •  got a good discussion going, DrSteve (3+ / 0-)
    Recommended by:
    zett, DrSteveB, Battle4Seattle

    I haven't seen much of you lately.  Did you ever collate all that info you gathered in various demographic polls you ran here a while ago? Did I miss a summary or report on that?

    The notion that I must buy something, by law, from a private for-profit entity, most especially because it leaves me no cooperative alternative, galls me on general principle, whatever the legal arguments pro and con. The discussion you sparked made it clear that the law is NOT clear, and that this is a legitimate topic of discussion.

    don't always believe what you think...

    by claude on Fri Apr 16, 2010 at 06:22:38 PM PDT

  •  I really wish some reporter would ask President (1+ / 0-)
    Recommended by:

    Obama why he disagrees with candidate Obama:

    "[K]now that your people will judge you on what you can build, not what you destroy." -Barack Obama

    by Battle4Seattle on Fri Apr 16, 2010 at 06:44:30 PM PDT

  •  I am an apostite on this subject (1+ / 0-)
    Recommended by:

    because I've been opposed to mandates from the start (as before Obama ran for POTUS. I've been pro single-payer for many years.

    I'll not shed a tear if it is found unconstitutional. I guess the question is would that negate the whole bill or not.

    According to some that makes me a "Hard" lefty. So be it. I can accept that label. But, I'd rather be a Hard Lefty than a Limp Demy any day.

    New improved bipartisanship! Now comes in a convenient suppository!!! -unbozo

    by Unbozo on Fri Apr 16, 2010 at 07:00:25 PM PDT

  •  What do you make of this? (0+ / 0-)

    Some aspects of health reform, such as public plans, limitations on premium hikes or means tested subsidies may violate free trade agreements or trigger unanticipated, dramatic changes or penalties.

    This is from The General Agreement on Trade in Services (GATS): Implications for regulation of financial services in the United States (MS Word .doc format)  (2002)

    .....cut here.....

    "Health Care Reform

    US commitments under GATS to liberalize trade in insurance services, including health insurance, may interfere with future federal and state initiatives to improve access to health care services for vast numbers of uninsured and underinsured citizens. Health care reform could be affected in several ways.

    • *GATS could undermine future attempts to enact single payer national health care because it effectively prohibits the grant of new monopoly rights.6
    • *Second, any attempt to expand the existing Medicare program to cover children or new services such as prescription drugs might face a challenge under GATS. Since Medicare is a monopoly provider of health insurance for the aged, it may be subject to the US commitments on financial services under GATS. These include a commitment to endeavor to eliminate or reduce the scope of existing monopoly rights.7 A recent analysis of the Canadian health insurance program indicates that expansion of Canada’s Medicare program could be vulnerable to challenge under Nafta and/or GATS.8 Any such challenge to the Canadian health insurance program could have serious repercussions for the US Medicare program.
    • *Third, GATS may create barriers to state and federal initiatives to improve access to health care through HMO and health insurance regulation. The insurance industry’s position on liberalization of trade in insurance services advocates "pro-competitive" regulatory reform. This means limiting consumer protection regulation to financial solvency and disclosure issues, with no restrictions on pricing and no limits on the types of insurance products allowed on the market.9 From this perspective, consumer protections and initiatives to improve access to health care, such as mandatory coverage requirements or rate controls, would be seen as anti-competitive barriers to trade.10"

    GATS, Article VIII (4).  Note: GATS commitments in financial
    services apply to services purchased by public entities
    (Understanding on Commitments in Financial Services, paragraph

    The Understanding on Commitments in Financial Service, B(1)
    states: "(e)ach Member shall list in its schedule pertaining to
    financial services existing monopoly rights and shall endeavor to
    eliminate them or reduce their scope".  The provision applies to
    services provided in the exercise of governmental authority (except
    for statutory social security and public retirement plans).
    Medicare could arguable be affected by this provision.  The issue of
    whether the Medicare program is protected may hinge on a technical
    ruling as to whether Medicare is a form of social security,
    protected by the social security exemption.

    The Commission on the Future of Health Care in Canada, summary
    report on Globalization and Health, Putting Health First:
    Canadian Health Care Reform, Trade Treaties and Foreign Policy
    (prepared by the Canadian Centre for Policy Alternatives),
    October 2002.

    International Chamber of Commerce, Policy statement on the
    liberalization of trade in insurance services,
    Commission on
    Financial Services and Insurance, 25 May 2000.  Also see "U.S.,
    European Union Agree on World Trade Negotiation Objectives", Best
    , July 14, 1999; Snyder, David, "Pro-competitive
    Regulation on Global Basis – The Prospect of Unprecedented
    Benefits, Insurance Advocate, November 11, 2000; and
    Brostoff, Steven, "U.S., Euro Insurers Unite on Free Trade",
    National Underwriter, August 2, 1999.  

    10  In current GATS negotiations, the US opposes requirements for prior
    product approval (form or rate) requirements for insurance products
    supplied to consumers in the business community (US negotiating
    proposal on financial service, available at


    Obama really blew it by not coming out swinging for single payer.

    by Andiamo on Sat Apr 17, 2010 at 04:10:21 PM PDT

  •  Hypothetical tax on parents of children (0+ / 0-)

    How would people feel about that? A tax on parents because they have children, which cost money to educate would be accused of being there solely to prevent parents from sending their children to school. A tax on older people to "reduce their utilization of healthcare" is exactly the same thing.

    And guess what, it doesn't reduce their utilization of healthcare, study after study shows that increasing prices so people cannot afford it ends up making healthcare cost FAR MORE in the long run.

    Because they end up being much sicker when they DO seek care.

    (Or dead)

    ALL the evidence seems to point to this administration NOT trying to lower healthcare costs, instead they are trying to increase them!

    Obama really blew it by not coming out swinging for single payer.

    by Andiamo on Sat Apr 17, 2010 at 04:24:13 PM PDT

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