The big kabuki play is on. The party of tantrums like a two year old is throwing itself on the floor and holding its breath. Of course, like a two year old's tantrum, it's all for show. Unlike a two year old's tantrum, it's breathtakingly cynical. I don't have any hesitation in saying that there is no way the GOPers who are filing those suits against the HCR bill believe the suits are going anywhere. It's all a show for people who flatly don't have a clue. Like, well, over at Redstate.
No, I'm not the first. Lawrence O'Donnell commented on this very thing last night on Countdown (I think it was last night, I do Tivo so I could be wrong on the date). Everything that's come before is spitting in the wind, I think O'Donnell--who has actual experience unlike myself--nailed it.
But first, spitting in the wind...
Think Progress is alarmed that the coming Constitutional crisis over the President’s newly-signed Patient Protection and Affordable Care Act (PPACA). I conclude this because it is unusual to see progressives use an originalist argument for Constitutional interpretation. However Ian Millhiser and Think Progress need more practice at it, because the argument they make is not the one they intend.
So what did Think Progress say?
According to Cuccinelli, the new law’s provisions that require individuals to carry health insurance violate the Constitution because "at no time in our history has the government mandated its citizens buy a good or service." The truth, however, is that the Second Militia Act of 1792, required a significant percentage of the U.S. civilian population to purchase a long list of military equipment:
This I did not know. But there it is, the federal government mandating the purchase of private products. So the argument that runs along the lines of "the government can regulate cars but can't mandate you buy one" is false on its face. At least far as the Founders were concerned.
Of course, this is wrong. Why? Because Redstate says so! I mean, get with the program!
I’ll start with Millhiser’s last point, that the framers "they probably knew a little bit more about the Constitution than Ken Cuccinelli." This is not entirely true for several reasons.
Erm... really? I mean, REALLY?
What happened to the originalist, constructionist, nothing good happened after 1776 stance? Suddenly, we know more now than the Founders did! Huh. How progressive of him!
First, we’ve ratified seventeen amendments to the Constitution since the passage of the second Militia Act, and ten more were only ratified six months earlier. These changes to the Constitution require careful consideration, especially those of the ninth and tenth amendments.
Yah. Just make sure you stop at the pre-Civil War, pre-14th Amendment era. The idea that the 14th modified the 10th is anathema. I actually had a reich winger online try to argue that later amendments couldn't amend the earlier amendments. Again, balloon animals. Very amusing.
Also, notice the careful stepping around which amendments were ratified before the bill. The Militia Act was passed May 2, 1792. Redstate's beloved 10th Amendment was ratified and effective on December 15, 1791. Clearly the guys who wrote all that stuff didn't see a conflict.
Regardless, Millhiser makes one core point: If it is Constitutional to require individuals to purchase firearms in the course of regulating the Militia, then it is Constitutional to require the purchase of medical insurance. However there is a key difference between the two here:
Yes, there is a key difference.
First, I digress (a lot). Mister They Missed The Point is missing the point. The argument being addressed is the "this is unprecedented" and "if ever done, must be unconstipational" not-an-argument rant. And addressed it was. Signed, sealed, and forever stamped.
Fact is, it's been done before. 'Nuff said.
The key difference has to do with something I commented on previously written by Chemical (maybe that explains things?) Sam. Who commented amusingly:
Excise taxes are forbidden and their passage is meaningless under the Constitution.
Only problem being, excise taxes are in Article II, Section 8 as one of the original tax powers of Congress. Predating the income tax by a lotta years.
Taxes? Wait, what about the mandate?
Well, it's not a mandate. Check this out. My state (the great state of Yahoos aka "Texas") has a "Financial Responsibility Act":
Sec. 601.051. REQUIREMENT OF FINANCIAL RESPONSIBILITY. A person may not operate a motor vehicle in this state unless financial responsibility is established for that vehicle through:
(1) a motor vehicle liability insurance policy that complies with Subchapter D;
(2) a surety bond filed under Section 601.121;
(3) a deposit under Section 601.122;
(4) a deposit under Section 601.123; or
(5) self-insurance under Section 601.124.
Notice what's going on here? At no point are we mandated to buy insurance. We are mandated to "establish financial responsibility".
In the same spirit, the "mandate" is a tax. The Dems didn't want to call it a tax but it is. Notice who's handling it? The IRS. And despite Mister Refusnik above, there is no question the Congress has the power to tax.
Essentially, it's a tax for which you obtain a credit or deduction by purchasing a qualified product. Which we do all over our tax code. Buying a new water heater? Get an energy efficient one, you get a deduction! Purchasing a house for the first time? Deduction! Spend a whopping amount on insurance, co-pays, and medicine? Deduction!
(Sounds like that insurance lady on the TV machine: Did you have to move for work? Deduction! Did you pay for education? Deduction!)
Side bar time!
Good thing deductions, my mom had a rough year last year in the senior type surgeries realm (ah, a glimpse of my future!). And a one time, temporary spurt of "income" (megabig IRA withdrawal) which would have been taxed a lot more if not for her medical deductions.
All 12,000 of them. I mean dollars. Can you hear my mind boggling all the way over where you are? Every time Faux News tries scaring mom about the HCR bill (I keep telling her to stop watching those people... sigh), I point out to her that the "donut hole" like to tanked her last year and she better be glad the Dems set it up to recede into the distance every year starting now.
And can somebody explain to me how this happened? Mom's on Medicare and yet, still, the bulk of a year's worth of her social was devoured by medical costs.
In my last year of that "income" thing (been a bad, bad few years since I ran from The Storm), I owed enough in taxes to fund mom for some time. I wanna refund. Part of the reason I accept--grudgingly sure--taxation is they're supposed to be taking care of our elderly like mom. Yeah, well. And aren't they doing a fantastic job of it?
Sigh. Long as pharma makes a profit, that's all that matters I guess. If our senior citizens ain't profitable, what good are they? Besides, better we should devote nearly one third of our budget to creative ways of killing people. That's important.
I'm laying my bet now that all the yammering about the commerce clause (et al) is missing the point. That this will be argued by the Administration as tax policy. And they will win.
The alternative is to overturn all deductions and credits that involve the purchase of products.
So, please rage on reich wingers. I hope you do make it to the Supremes. Because if you win and take the middle classes' major deductions away (mortgage on the house anyone?), well, let's just say the total collapse and disappearance of the GOP is one of those historical moments that give me goose bumps and stuff...
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