| T O P I C R E V I E W |
| Fishb8 |
Posted - 03/26/2012 : 10:04:16 PM
Is the individual mandate constitutional?
I'm not asking about the health care law. All I want is an educated discussion on whether the government can make you buy something because you are a US citizen.
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them. |
| 25 L A T E S T R E P L I E S (Newest First) |
| soup |
Posted - 03/29/2012 : 2:29:19 PM
Our country was not founded as a collectivist one. The only reason we have a "collective problem with health care" is because the government created it. In any case, and as admitted by the government's own attorneys, the mandate to purchase health care insurance is NOT there to cover just the cost of "uncompensated care". That is a small fraction of the total health care costs. The mandate is there to provide money to the insurance companies to cover the cost of guaranteed issue and community rating which are being forced on them by the government. If you know anything about insurance you should recognize that that destroys the concept of insurance.
Judicial activism would be if the court ruled the mandate unconstitutional and then tried to figure out which parts of the law to keep. Without a severability clause, if they strike one part they should strike the whole thing.
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| SirSpear |
Posted - 03/29/2012 : 12:04:19 PM
quote:
Originally posted by soup
Sir Spear
Providing for the common defense is a clear constitutional responsibility. Providing for universal insurance for covering health care may or may not fall under the General Welfare Clause. If it does, there are many ways in which to accomplish this goal without forcing individuals to purchase something for which they had no intent. You should keep in mind that providing for universal coverage does not guarantee universal health or universal health care.
No, not every person impinges on the health care system. As Scalia pointed out, every person dies. Therefore, should we mandate that they purchase burial insurance because those without it force costs on others? The law as written governs both economic activity and decision. As Kennedy asked, (paraphrased) "are you proposing to create commerce in order to regulate it?" Or, as one of them asked (also paraphrased) "Or you born into commerce?"
There is no "collective action" needed for health care coverage. The individual mandate is written to create a "collective action".
The Court cannot legislate!
How is there no collective action problem with healthcare? If other people pay for it, I have no incentive to get insurance. Like defense: I benefit from our nation having defense, but I have no incentive to pay for it personally if someone else will. The millions of people who don't get health insurance but have the means to get it are living proof that there is a collective action problem at work.
I also don't get why you keep hammering this the court cannot legislate bit. They are reviewing an act of Congress. On a side note, I thought most people on here hate "judicial activism." |
| Fishb8 |
Posted - 03/29/2012 : 06:39:19 AM
quote:
Originally posted by Mixed Nutz
So I guess I'm saying, who is actually paying for Obamacare?
Suit yourself on the answer, but I think you know the truth!!
...Politicians aren't the "Oldest Profession", but the results are still the same!!!
The 99%. NOPE
The 1%. NOPE
The 50% that have a job....YEP
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them. |
| Mixed Nutz |
Posted - 03/28/2012 : 9:01:18 PM
So I guess I'm saying, who is actually paying for Obamacare?
Suit yourself on the answer, but I think you know the truth!!
...Politicians aren't the "Oldest Profession", but the results are still the same!!! |
| Mixed Nutz |
Posted - 03/28/2012 : 8:51:31 PM
quote:
Originally posted by SirSpear
quote:
Originally posted by Mixed Nutz
quote:
Originally posted by SirSpear
The individual mandate is constitutional under the Taxing and Spending Clause.
Keep in mind the mandate doesn't actually make you do anything. You won't go to jail if you don't get health insurance -- there is a just a financial penalty if you have the means to get insurance and choose not to. On an unrelated note, I have no idea why you guys hate this logic -- people use medical services when they need them and then just don't pay if they don't have insurance, so don't let people take advantage of the system that way. But I digress.
Of all the taxes contemplated by the original constitution, a direct tax was clearly allowed.
So frame the question differently: Say Congress passed a direct tax of $600. Then Congress gave a $600 tax credit to anyone who had health insurance throughout the year. Both of these acts are obviously constitutional.
This isn't really a mandate. It's just an acknowledgement that EVERYBODY gets access to expensive medical care, so if you don't act responsibly and acquire insurance for yourself then you'll be taxed.
This explanation is just simply Ignorant!!! If Folks can't afford Obamacare, How in heck are they going to be able to afford the penalty??
...Politicians aren't the "Oldest Profession", but the results are still the same!!!
Well, first you are attacking a straw man. The question wasn't whether or not it was practically a good idea, just whether or not it was constitutional.
Second, even from a practical standpoint, the idea is that if you are too poor to get insurance it will be provided in some way (thus making you eligible for the credit). The only people the "mandate" is after are those who should get insurance and have the means, but irresponsibly choose not to because they know they'll still get medical care if they badly need it. The mandate is about getting people to stop leeching off the public teat if they don't have to -- I really have no idea why you guys have a problem with that (especially since the way to avoid the penalty is to get private insurance).
Your earlier examples are good ones, but I'd go even farther. The government can (and does) make you pay for an army, interstate roads, federal law enforcement, a coast guard, etc... If everyone is going to use our medical resources, everyone able should kick in. I suspect most people on this forum already do, and your premiums and medical costs are higher because of all the people who don't get insurance and then have some catastrophic accident one day.
Here's the "REAL Straw Man"
Since I'm in the Home Building business. Just how much are you willing to pay for a new house?
If you don't think that I'll pass that "mandate" on to the consumer, you are just kidding yourself!!
...Politicians aren't the "Oldest Profession", but the results are still the same!!! |
| soup |
Posted - 03/28/2012 : 7:04:20 PM
Sir Spear
Providing for the common defense is a clear constitutional responsibility. Providing for universal insurance for covering health care may or may not fall under the General Welfare Clause. If it does, there are many ways in which to accomplish this goal without forcing individuals to purchase something for which they had no intent. You should keep in mind that providing for universal coverage does not guarantee universal health or universal health care.
No, not every person impinges on the health care system. As Scalia pointed out, every person dies. Therefore, should we mandate that they purchase burial insurance because those without it force costs on others? The law as written governs both economic activity and decision. As Kennedy asked, (paraphrased) "are you proposing to create commerce in order to regulate it?" Or, as one of them asked (also paraphrased) "Or you born into commerce?"
There is no "collective action" needed for health care coverage. The individual mandate is written to create a "collective action".
The Court cannot legislate! |
| Fishb8 |
Posted - 03/28/2012 : 6:19:27 PM
It is not a fact that every single person purchases health care. Many self employed small business owners do not.
The word fact is easy to throw around. Bottom line, that self employed will be REQUIRED to by health insurance.
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them. |
| SirSpear |
Posted - 03/28/2012 : 5:46:44 PM
quote:
Originally posted by soup
Sir Spear--Think about this quote from Chief Justice John Marshall..."The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional".
Social Security is a tax. The Democrats who wrote Obamacare got a little too cute. They couldn't call the mandate a tax because then they would be violating pledges not to raise taxes on those making under 250K. (That's why they try to call it a tax one day and a fine or penalty the next.) The mandate is not there to cover costs of the "uninsured" but to cover the costs of other "mandates" such as guaranteed issue and community rating. In this case, the mandate is not the sole solution to solving the financial problems of a situation the government created.
I don't think Raich is a precedent because there was already an existing product which was one step away from interstate commerce. That's not the situation here. We'll see how Scalia rules.
I think there is also a strong argument that this law doesn't make you purchase anything. Fact is, every single person in the United States purchases health care at some point (or forces someone else to purchase on their behalf). No law does that -- the fact that you are human does that. The law can be construed to simply impact how you purchase health care.
Either way, I think this mandate can be easily limited to goods and services consumed by everyone for which a collective action problem exists: defense, healthcare (which is 18% of our economy), etc... |
| soup |
Posted - 03/28/2012 : 2:36:05 PM
Sir Spear--Think about this quote from Chief Justice John Marshall..."The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional".
Social Security is a tax. The Democrats who wrote Obamacare got a little too cute. They couldn't call the mandate a tax because then they would be violating pledges not to raise taxes on those making under 250K. (That's why they try to call it a tax one day and a fine or penalty the next.) The mandate is not there to cover costs of the "uninsured" but to cover the costs of other "mandates" such as guaranteed issue and community rating. In this case, the mandate is not the sole solution to solving the financial problems of a situation the government created.
I don't think Raich is a precedent because there was already an existing product which was one step away from interstate commerce. That's not the situation here. We'll see how Scalia rules. |
| saltydog235 |
Posted - 03/28/2012 : 2:29:25 PM
Listening to the arguements, discourse and commentary from this morning, I think you Obamacare proponents are about to be sorely dissappointed. When Sotamayor, Kagan, and Ginsburg lay into Obama's defense team and Scalia, Kennedy and Alito dismantle his every arguement reducing him to a stumbling, bumbling mush mouthed idiot then your chnaces aren't good. I think at this point the best the Obama crowd can hope for is trying to salvage parts of the law.
Some talking heads have siad it will still be 5-4, but one or two are saying it may be 6-3 or even 7-2. With 6-3 pretty much assuring Obama's re-election chances are not good. It'll be interesting to see h0w it all finally shakes out.
Mark
Mako 262 Twin Yammaha F200s
Yeah, but do you consider a dog to be a filthy animal? I wouldn't go so far as to call a dog filthy but they're definitely dirty. But, a dog's got personality. Personality goes a long way.
"Life's tough......It's even tougher if you're stupid" John Wayne
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| Fishb8 |
Posted - 03/28/2012 : 2:15:06 PM
If the slippery slope argument is not valid, why we keep hearing about Social Security. If the SS is a precedence then the HC law is the slope.
Look at the other arguments about license. it all started with 1. then the slope started. now you need a license for tons of things. Look at a sales tax. it started very low. The slope has caused it to increase.
Put ALL your bias away and you will see that the slippery slope is indeed a reality.
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them. |
| SirSpear |
Posted - 03/28/2012 : 2:06:14 PM
quote:
Originally posted by Fishb8
quote:
Originally posted by SirSpear
quote:
Originally posted by soup
In Wickard v Filburn and Gonzales v Raich the government sought to regulate existing products which were proximate to an interstate market. Kennedy yesterday gently suggested that individuals not purchasing health insurance were proximate to the health care market. But, he still had problems with granting the Federal government plenary police powers and the government's failure to show that the health care market (health insurance market) were unique and ,thus, the absence of limits on "mandates".
I think that pretty much sums up the argument accurately. I agree with your earlier statement that Kennedy seems to be seeking a way to uphold the law but corrale the "mandate" power as much as possible. I am of the opinion that is is a sufficiently important national problem that something must be done. I also agree the government shouldn't be able to make you buy broccoli. I think there is a way to distinguish the two scenarios. In other words, I think all this "if they can make me buy health insurance they can make me buy a ham sandwich" stuff is hyperbolic and silly. Healthcare and the associated costs are a huge problem. The opinion needs to be narrow and carefully worded, but it needs to uphold the mandate in situations of national necessity.
At what point does the cost of a car become a huge problem? So government can just deem something a huge problem and FORCE you to buy something, like a car.
The US has a huge problem with oil, so we are going to "mandate" that EVERY american must buy a GM battery powered car.
Stop me when this sinks in........
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them.
You love the slippery slope argument, huh? The judicial branch can decide when a problem is sufficiently unique (as both Roberts and Kennedy have worded it) to justify upholding a law under the necessary and proper clause. Courts across the country make balancing test judgments every single day in a myriad of situations. |
| Fishb8 |
Posted - 03/28/2012 : 1:58:22 PM
quote:
Originally posted by SirSpear
quote:
Originally posted by soup
In Wickard v Filburn and Gonzales v Raich the government sought to regulate existing products which were proximate to an interstate market. Kennedy yesterday gently suggested that individuals not purchasing health insurance were proximate to the health care market. But, he still had problems with granting the Federal government plenary police powers and the government's failure to show that the health care market (health insurance market) were unique and ,thus, the absence of limits on "mandates".
I think that pretty much sums up the argument accurately. I agree with your earlier statement that Kennedy seems to be seeking a way to uphold the law but corrale the "mandate" power as much as possible. I am of the opinion that is is a sufficiently important national problem that something must be done. I also agree the government shouldn't be able to make you buy broccoli. I think there is a way to distinguish the two scenarios. In other words, I think all this "if they can make me buy health insurance they can make me buy a ham sandwich" stuff is hyperbolic and silly. Healthcare and the associated costs are a huge problem. The opinion needs to be narrow and carefully worded, but it needs to uphold the mandate in situations of national necessity.
At what point does the cost of a car become a huge problem? So government can just deem something a huge problem and FORCE you to buy something, like a car.
The US has a huge problem with oil, so we are going to "mandate" that EVERY american must buy a GM battery powered car.
Stop me when this sinks in........
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them. |
| Reelly Old |
Posted - 03/28/2012 : 1:56:40 PM
what is the magic number for being able to afford insurance?
Credits will be issued for a family of 4 with incomes up to $80-something thousand ...
__________________________ |
| SirSpear |
Posted - 03/28/2012 : 1:54:02 PM
quote:
Originally posted by soup
I disagree thoroughly. What is the "national necessity" of which you write? Do other methods exist to alleviate this "national necessity"?Are suggesting that the court assume legislative powers?
The court needs to decide whether the individual mandate exceeds Congressional authority only.
Try United States v Lopez.
The court is just upholding what the legislative branch has done. I subscribe to Scalia's opinion in Raich on this one -- the necessary and proper clause argument gains significant traction when you consider the need for a comprehensive solution to this problem. And you can't begin to argue the Court hasn't adopted loads of balancing tests before -- this would hardly be the first time the government's interest in regulation was balanced against the imposition on citizen's liberties.
I also like Ginsberg's comments at the conclusion of today (from yahoo finance): Ginsburg said she found the debate over health care similar to an earlier era's argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered.
"There's something very odd about that, that the government can take over the whole thing and we all say, Oh, yes, that's fine, but if the government wants to preserve private insurers, it can't do that," she said.
I think that's a good point -- the government could clearly just offer healthcare and pay for it with tax revenues. That would send most of the people on this web site into a meltdown. But when they try to meet in the middle and keep the private insurers, you want it to be unconstitutional. The point being -- be careful what you wish for: if this gets struck down, eventually the call will come for the government just to do it entirely. |
| soup |
Posted - 03/28/2012 : 1:48:47 PM
I disagree thoroughly. What is the "national necessity" of which you write? Do other methods exist to alleviate this "national necessity"?Are suggesting that the court assume legislative powers?
The court needs to decide whether the individual mandate exceeds Congressional authority only.
Try United States v Lopez. |
| SirSpear |
Posted - 03/28/2012 : 1:24:36 PM
quote:
Originally posted by soup
In Wickard v Filburn and Gonzales v Raich the government sought to regulate existing products which were proximate to an interstate market. Kennedy yesterday gently suggested that individuals not purchasing health insurance were proximate to the health care market. But, he still had problems with granting the Federal government plenary police powers and the government's failure to show that the health care market (health insurance market) were unique and ,thus, the absence of limits on "mandates".
I think that pretty much sums up the argument accurately. I agree with your earlier statement that Kennedy seems to be seeking a way to uphold the law but corrale the "mandate" power as much as possible. I am of the opinion that is is a sufficiently important national problem that something must be done. I also agree the government shouldn't be able to make you buy broccoli. I think there is a way to distinguish the two scenarios. In other words, I think all this "if they can make me buy health insurance they can make me buy a ham sandwich" stuff is hyperbolic and silly. Healthcare and the associated costs are a huge problem. The opinion needs to be narrow and carefully worded, but it needs to uphold the mandate in situations of national necessity. |
| soup |
Posted - 03/28/2012 : 1:19:04 PM
In Wickard v Filburn and Gonzales v Raich the government sought to regulate existing products which were proximate to an interstate market. Kennedy yesterday gently suggested that individuals not purchasing health insurance were proximate to the health care market. But, he still had problems with granting the Federal government plenary police powers and the government's failure to show that the health care market (health insurance market) were unique and ,thus, the absence of limits on "mandates".
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| SirSpear |
Posted - 03/28/2012 : 12:44:36 PM
quote:
Originally posted by Fishb8
If you loosly apply the Interstate Commerce Clause it would apply to just about everything we pay for. Unless you buy from a local farmer, it could come under the Interstate Commerce Cause. Thus the government could require you to buy ANYTHING.
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them.
Actually, even if you buy from a local farmer, it would probably fall under the commerce clause. See Wickard v. Filburn and Gonzales v. Raich.
I still the law is constitutional under the taxing and spending clause, but if not, there is a strong commerce clause argument. I honestly think that argument is bolstered by a combination of commerce clause and necessary and proper clause. That is the analysis Scalia used in his concurrence in Raich. |
| Fishb8 |
Posted - 03/28/2012 : 12:38:48 PM
If you loosly apply the Interstate Commerce Clause it would apply to just about everything we pay for. Unless you buy from a local farmer, it could come under the Interstate Commerce Cause. Thus the government could require you to buy ANYTHING.
Fishb8 (Fish Bait)
23 Sea Hunt "My Last Boat V"
If you can't stand behind our soldiers, try standing in front of them. |
| duckcommander |
Posted - 03/28/2012 : 12:23:50 PM
quote:
Originally posted by SirSpear
The individual mandate is constitutional under the Taxing and Spending Clause.
Is it a tax or a penalty? It depends on what the point the proponent is trying to make. I have heard both and it can only be one or the other? If it's a penalty, Taxing and Spending Clause argument loses a lot of weight. Not saying it is either, just something to think about.
Also, I am pretty sure a stronger argument for Constitutionality is the Interstate Commerce Clause (not that I agree). You can just about anything past a liberal, federal power growing Court by arguing the Interstate Commerce Clause. That clause has been used overly loose and is likely to be used very loosly in this decision.
www.erycriddlelaw.com |
| duckcommander |
Posted - 03/28/2012 : 12:13:14 PM
quote:
Originally posted by gotchacovered
Car and flood insurance are not compulsory unless you use them in conjunction with a public resource. Car insurance is compulsory if you use it on a public road, but not if you use it solely on your property. Flood insurance is compulsory if you have a federally-backed mortgauge, but if you pay cash, the choice is yours. We are not forced by government to borrow money or use the public roads, so we are not forced to buy the insurance. In addition to the government regulations, banks can require all sorts of things as a condition for lending you money because it's a contract between you and them. They might also require that you have a certain financial profile, for example, before they lend you a certain amount of money. That is not goverment force. That is business. No one is forcing the relationship. It's a free-will, take-it-or-leave-it situation.
Well said.
www.erycriddlelaw.com |
| SirSpear |
Posted - 03/28/2012 : 11:01:53 AM
I'm still not sure how you all aren't mandated to buy a whole slew of goods the government provides (defense, for example)? |
| soup |
Posted - 03/28/2012 : 09:08:57 AM
I think but am not certain because the ACA is so convoluted that it requires most citizens and legal residents whose income levels are above the threshold for filing federal income taxes to maintain health insurance or pay a financial penalty with exemptions for those whose cannot afford coverage, have income levels below 100% of the federal poverty limit, or lacked coverage for less than 3 months of the year. Those between 100%-400% of the poverty level will qualify for income-based federal subsidies. |
| Fracwilt |
Posted - 03/28/2012 : 06:56:59 AM
what is the magic number for being able to afford insurance? anyone know that? i assume it's going to be based off your income. |
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