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Ever since Judge Vinson ruled that HCR must be thrown out in its entirety the argument presented for doing so has not struck me as legally sound (and I am no lawyer) even though the White House and the press have been dancing around it as though it might possibly have some legal merit. I think I have figured out where the problem is so follow me below the fold.

From  Yahoo News"

At issue was whether the government is reaching beyond its constitutional power to regulate interstate commerce by requiring citizens to purchase health insurance or face tax penalties.

Vinson, who was appointed to federal bench by Ronald Reagan in 1983, said it is, writing in his 78-page ruling that if the government can require people to buy health insurance, it could also regulate food the same way.

"Or, as discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals," he wrote, "Not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."

and directly to the point that I am asserting here:

From NBC's Pete Williams:

Judge Roger Vinson found the entire law unconstitutional, after declaring that its key element -- the health insurance mandate -- was a law Congress did not have the power to enact.  Opponents of the law claimed that while the government can regulate the activities of people engaged in commerce, like the insurance industry, it cannot regulate someone's inactivity -- that is, someone's refusal to buy insurance.  It's an argument the judge found persuasive.

The issue is not someones refusal to buy insurance. The issue is the unwritten, universal social agenda in this country and most of the world that if you are hit by a car (for example) and have 20 broken bones and internal bleeding, you will be taken to a hospital and attended to until you are well enough to leave with at minimum, a high probability of continued survival.

The issue here is not the refusal to buy insurance. The issue is the clear assumption that you will be treated regardless of whether or not you have it. While the uninsured may not be subject to regulation by a lack of voluntary participation in commerce I think a key argument might be that they are subject to regulation by an involuntary  or presumptive participation in commerce at the time that they actually need it.

Here I submit an idea that I think we should encourage our Republican compatriots to propose as a House Bill as follows:

Add the option that you can opt-out of mandatory insurance by signing a waiver that should you be injured, spindled, folded or mutilated you refuse care on the public dime because you believe in smaller government and want nothing to do with the Socialist notion of emergency care for all.

I'm really kind of surprised that they hadn't already thought of this.

In closing, does anyone think that the reason that HCR was declared unconstitutional in toto rather than having the offending statute removed was anything other than a Republican (Judge) refusing to withhold from his constituency (Insurance Companies) the cookie that made them roll over in the first place?

Originally posted to opticnerver on Wed Feb 02, 2011 at 06:15 PM PST.

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Comment Preferences

  •  Tip Jar (8+ / 0-)

    The Revolution has already been televised. This is just the mopping up operation.

    by opticnerver on Wed Feb 02, 2011 at 06:15:46 PM PST

  •  If one goes to an ER... (1+ / 0-)
    Recommended by:

    for treatment, the hospital will probably submit a completed health insurance application (with your signature, of course) to the state insurance pool, to pay your bill.  However, it will be up to the patient to keep up the minimum payments.  This country uses insurance pools for all types of situations, like car, life, flood, disaster, fire, etc.  This isn't a new practice.  Only republicans haven't heard of it.  I don't see republicans protesting mandatory auto insurance.

    •  Auto insurance is (a) required by state (1+ / 0-)
      Recommended by:

      governments (who, per our constitutional system, have general police power the feds don't) (b) to drive on public roads.  It's so different that it sheds no light on the mandate.

      •  My scenario involved a pedestrian as example (0+ / 0-)

        but you could use any unexpected injury whereby it is assumed that you will be treated and the finances dealt with later. This is part of the reason that medical costs are increasing as we all share in the cost of care for those who are A.) too  young to "need" insurance or B.) too poor to afford it.

        I am personally not happy with the mandate, as I see it as a concession to big insurance made before open discussion even began. I simply find the ruling ridiculous that if you didn't intend to ever be injured or need emergency care you are a legitimate argument for killing HCR.

        The Revolution has already been televised. This is just the mopping up operation.

        by opticnerver on Wed Feb 02, 2011 at 08:13:47 PM PST

        [ Parent ]

  •  That would awful (0+ / 0-)

    We'd end up with more situations like this.

    Of course, the Republicans in Congress don't actually oppose HCR because of constitutional issues.  They oppose the subsidies, regulation, and corporate taxes.  

    •  True, but my question goes to the reasoning (0+ / 0-)

      behind the judges decision that if there is no voluntary commerce there is no basis for regulation which I find to be simplistic at best.

      The Revolution has already been televised. This is just the mopping up operation.

      by opticnerver on Wed Feb 02, 2011 at 08:07:48 PM PST

      [ Parent ]

      •  If it is reasoning of the judges not fed to them, (0+ / 0-)

        as with the curiously parallel citation of what one could be required to buy, which different principally in the choice of vegetable. I no more think the two decisions are independently reached than the man in the moon.

    •  They oppose it because it's Obama's (1+ / 0-)
      Recommended by:

      signature issue and major success. Even if there were no reason (and in their mind, there are other reasons) that alone would be sufficient.

      Sad. OK, pathetic.

      He is a barbarian, and thinks that the customs of his tribe and island are the laws of nature. G.B. Shaw

      by DanK Is Back on Wed Feb 02, 2011 at 08:48:38 PM PST

      [ Parent ]

      •  Are we talking about Congress or the Judiciary (0+ / 0-)

        here? It seems the unspoken issue is that there is no longer a difference. But yes, I agree that is the reason. After all mandatory insurance was originally a Republican idea!

        The Revolution has already been televised. This is just the mopping up operation.

        by opticnerver on Wed Feb 02, 2011 at 09:03:53 PM PST

        [ Parent ]

  •  If I remember this correctly, in Customs law, (1+ / 0-)
    Recommended by:

    when determining the tariff classification of an article based on the use to which the article is primarily placed, it must be determined what constitutes that primary use.  In making such a determination ALL uses of the article must be considered and weighed.  A fundamental principle in this determination is that "fugitive" uses cannot determine the tariff classification of the article.  A fugitive use is one that is so rare as to be inconsequential.

    There is a similar phenomenon that exists within the healthcare system.  The overwhelming majority of individuals take advantage of healthcare at some point in their lives.  Even if you did not intend to use it, if you were to have a heart attack in a public place, an ambulance would be called and you would be transported to the nearest hospital.  In fact the number of individuals who never use the healthcare system is so small that one might say that this "non-use" of the healthcare system is a "fugitive" non-use, and it follows that it can be disregarded as inconsequential.

    I realize this is not the same thing, and there is no such legal principle (that I know of) as a fugitive non-use, but you see where I'm going.  For all practical purposes, EVERYONE uses the healthcare system, and so everyone engages in interstate commerce as it relates to healthcare.  The constitutionality of the mandate should not be determined by something so inconsequential as to be nonexistent in a practical sense.

    Therefore, everyone should contribute to that system, much like paying social security taxes.  You may not want to receive social security benefits, and in fact you may not be eligible to receive them* but you still must pay the payroll tax.

    Ironically, no one is being forced to buy health insurance.  You are required to contribute to the system.  If you do buy the insurance, however, that is your contribution, and you avoid the tax you otherwise would have had to pay.

    *You must pay payroll taxes even if you never intend to work the number of quarters required to receive benefits.  Federal employees under the Civil Service Retirement System (CSRS) do not receive social security benefits from their federal employment.  If they have worked the required number of quarters in non-federal employment in their lifetimes, any social security benefits they might otherwise have earned from that work will be offset by their federal pension, usually with the result that they receive no social security benefits, even though they paid the payroll taxes.

    The community of fools might be small if it were not such an accomplished proselytizer.

    by ZedMont on Wed Feb 02, 2011 at 07:12:55 PM PST

    •  I hope the attorneys that will have to fight the (1+ / 0-)
      Recommended by:

      ruling are reading your comment. Thank you.

      The Revolution has already been televised. This is just the mopping up operation.

      by opticnerver on Wed Feb 02, 2011 at 08:15:44 PM PST

      [ Parent ]

    •  In public health, do parents have to or are they (0+ / 0-)

      free not to buy polio shots or other vaccinations for their childen? Can they really refuse? And is the religious exemption an excuse not to buy or an example of how to opt out without throwing the sytem over?

    •  Its not like health care is free... (0+ / 0-)

      without insurance.  Right now I self pay for care (not entirely by choice), once the mandate is in effect I will have a choice between buying insurance or continuing to self pay and paying a regressive tax to offset the cost of other peoples health care.

  •  Up to a point the logic is OK. (0+ / 0-)

    But in application there are complications.

    When a severely injured or ill person comes into ER they are cared for without consideration for their ability to pay, or even their agility to survive, except in situations like Katrina or theaters of war.

    Medical personnel do not want, and generally do not have the time, to be put into the situation to make decisions of whether or not to treat a person, especially if it is a life saving situation.  That should not be their job.  Their job is to do medicine.

    And do we really want to give medical personnel, especially in emergency situations the power to kill without the patients knowledgeable and uncoerced (by pain or emotional stress) consent?

    How does ER determine who is to be treated and who is not?  The absence of a insurance card is not proof that a give patient does not have insurance.  And how is to to be determined that a person who has no insurance cannot afford to pay for treatment out of pocket?

    And do we really want to live in a country where people who cannot afford $70+ a month, every month, for ever are stacked like cord wood and allowed to die.

    •  If you re-read my final comments you will realize (1+ / 0-)
      Recommended by:

      that the suggestion that I make is specious. I regard the ruling as superficial in its sweeping assumption regarding what constitutes "commerce".

      The last part was simply to point out the absurdity of the faulty logic behind the argument by the judge to kill HCR.

      The Revolution has already been televised. This is just the mopping up operation.

      by opticnerver on Wed Feb 02, 2011 at 08:19:04 PM PST

      [ Parent ]

  •  The whole thing is silly. (1+ / 0-)
    Recommended by:

    People don't get to choose whether they are "in health care commerce."  They have bodies that take up other people's space, breathe other people's air, infect others when they are sick, require public emergency responses when they are injured ir ill, and stink to high heaven when they die in our public streets.  The mandate is that you pay for the trouble your body, living or dead, causes others.  It's called the general welfare.  It's in the Constitution.  Look it up, Your Honor.

    A right answer to the wrong question is a wrong answer.

    by legalarray on Wed Feb 02, 2011 at 09:31:36 PM PST

    •  Vinson is a whackout, sure, and... (0+ / 0-)

      his analysis would have been more seemly coming from the butt-end of a twit...

      but Vinson's incoherent babbling doesn't mean there isn't a big "federalism" problem in the new health care law.

      for, as pointed out, while the objective may seem worthy to us here in dailykos,  we should all be thankful that objective alone does not rule the world. we would all soon be slaves.

      instead, the issue here is not that the federal government has no interest in this area, but what power they may exercise to advance that interest.

      for the "general welfare" clause has long been interpreted as being restricted to those powers within the scope of enumerated federal powers. States retain the primary "general welfare" powers. isn't that so?

      now regulating, under the commerce clause, corporations engaged in interstate trafficking of human suffering and body parts, that seems a no-brainer. lets go get 'em.

      but regarding the individual mandate, and even beyond the federalism concerns, isn't there also something fundamentally problematic, even monstrous,  about sending a person to federal prison solely because he does not have on his person the price of a meal?

      just saying, single payer would have worked. This puking monstrosity seems to have been written by insurance companies. ya figure maybe that's whats really wrong here?

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