Supreme Court and the Individual Health Insurance Mandate

[Frodo]

Once the case reaches the Supreme Court, how do you think it will rule on the mandate?  Will it uphold or strike it down?  

[True Federalist]

If it is upheld, it will have to be as an exercise of the taxing power. While I expect the Supreme Court would find that health insurance is Interstate Commerce (Indeed when it comes to how the Court views the Commerce Clause, the word Interstate has effectively been rendered irrelevant), I can't see any power under the Commerce Clause that could be used to compel people to engage in Commerce if they don't want to.

[CARLHAYDEN]

If it is upheld, it will have to be as an exercise of the taxing power. While I expect the Supreme Court would find that health insurance is Interstate Commerce (Indeed when it comes to how the Court views the Commerce Clause, the word Interstate has effectively been rendered irrelevant), I can't see any power under the Commerce Clause that could be used to compel people to engage in Commerce if they don't want to.

A pretty good analysis.

However, what is most interesting is that the bill does NOT include a 'severability' clause!

[The Head Beagle]

A federal judge in Michigan just now upheld this year's health care legislation in the first significant challenge to its constitutionality.

http://www.politico.com/blogs/bensmith/1010/Michigan_judge_upholds_health_care_law.html?showall

No doubt there will be many such stories, though on the off chance that some judge somewhere throws out some part of it, we will hear way more about that case than all the rest...

[Free Palestine]

Clinton appointee

Heh

[angus]

health-care reform survives its first constitutional challenge

Some would say, "sad, but true," but I have long argued that the congress should not allow the courts and the executive branch to usurp its authority, as those branches have been doing for over two hundred years.  When I read this story earlier today on-line, I was glad.  Not that I'm in favor of the bill, but if we're going to be rid of this monstrous piece of legislation, we need to do it using the democratic process, by removing the elected officials who made it law and replacing them with folks will make laws superceding it or repealing it.  I'd like to see every one of these lawsuits go down in flames, and then to see those flames under the collective ass of the so-called "constitutionalist" faction of the voting public, motivating it to action.

[Skill and Chance]

I agree that is far better for conservatives to fight it in Congress.  Fighting it through the courts sends a questionable message (politicizing the judiciary).  The last thing they would need is a left wing equivalent of Roe v. Wade getting ~30% of the country permanently riled up against the right for the next generation.

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

[??????????]

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

Good, that's the way it SHOULD be.

[Skill and Chance]

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

Good, that's the way it SHOULD be.

I have often wondered whether those most opposed to HCR would support the same program, or even something far to the left of it (like single payer) at the state level simply on federalist grounds.  You say yes.  The hope on the far left and the fear on the far right is that state level government health insurance will spread rapidly after a very influential state (like CA) adopts it.  What if there was a chain reaction through the states where 35 or 40 adopted single payer over 15 years and it became the de facto national health policy, which is basically what happened to the Canadian health care system in 1945-60?  Would you then regret leaving HCR completely up to the states?

[??????????]

No.

[Free Palestine]

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

Good, that's the way it SHOULD be.

I have often wondered whether those most opposed to HCR would support the same program, or even something far to the left of it (like single payer) at the state level simply on federalist grounds.  You say yes.  The hope on the far left and the fear on the far right is that state level government health insurance will spread rapidly after a very influential state (like CA) adopts it.  What if there was a chain reaction through the states where 35 or 40 adopted single payer over 15 years and it became the de facto national health policy, which is basically what happened to the Canadian health care system in 1945-60?  Would you then regret leaving HCR completely up to the states?

I don't know if I'd really be opposed to HCR at the state level.

[Skill and Chance]

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

Good, that's the way it SHOULD be.

I have often wondered whether those most opposed to HCR would support the same program, or even something far to the left of it (like single payer) at the state level simply on federalist grounds.  You say yes.  The hope on the far left and the fear on the far right is that state level government health insurance will spread rapidly after a very influential state (like CA) adopts it.  What if there was a chain reaction through the states where 35 or 40 adopted single payer over 15 years and it became the de facto national health policy, which is basically what happened to the Canadian health care system in 1945-60?  Would you then regret leaving HCR completely up to the states?

I don't know if I'd really be opposed to HCR at the state level.

Should a state have the authority to make all doctors practicing within the state lines employees of the state government without any federal say?  Medical schools and their curricula/residency structure could change drastically, especially if it was CA or MA that did this.

[Free Palestine]

Not to mention that a Supreme Court ruling that health insurance is not interstate commerce would be a signed invitation for some of the Democratic trifecta states to enact state-level single payer.  It probably wouldn't be a big deal on the national level if Vermont did this, but what about California or Massachusetts?   

Good, that's the way it SHOULD be.

I have often wondered whether those most opposed to HCR would support the same program, or even something far to the left of it (like single payer) at the state level simply on federalist grounds.  You say yes.  The hope on the far left and the fear on the far right is that state level government health insurance will spread rapidly after a very influential state (like CA) adopts it.  What if there was a chain reaction through the states where 35 or 40 adopted single payer over 15 years and it became the de facto national health policy, which is basically what happened to the Canadian health care system in 1945-60?  Would you then regret leaving HCR completely up to the states?

I don't know if I'd really be opposed to HCR at the state level.

Should a state have the authority to make all doctors practicing within the state lines employees of the state government without any federal say?  Medical schools and their curricula/residency structure could change drastically, especially if it was CA or MA that did this.

Yes

[Skill and Chance]

Maybe you have a very different perspective, but if you take the question of whether the government has a responsibility to provide health care for its citizens to be a moral question, why would the answer depend on the geography of the government?  If you believe that the government has the authority to mandate universal health care,  why should it matter whether it's one township or a global representative democracy?  I could see opposition to the extreme case of a global government doing it based on the freedom to leave/vote with your feet, but even at the national level in the US or another liberal democracy, those who want to leave are free to travel/move internationally.     

[Free Palestine]

Maybe you have a very different perspective, but if you take the question of whether the government has a responsibility to provide health care for its citizens to be a moral question, why would the answer depend on the geography of the government?  If you believe that the government has the authority to mandate universal health care,  why should it matter whether it's one township or a global representative democracy?  I could see opposition to the extreme case of a global government doing it based on the freedom to leave/vote with your feet, but even at the national level in the US or another liberal democracy, those who want to leave are free to travel/move internationally.     

Because the federal government has no such Constitutional authority.  Go ahead and have an amendment passed, if you must.  The powers of the federal government are few and defined, but the powers of the state are vast and undefined.  That is what the law in this nation is, and it is wrong to twist it to accomplish a certain end.

[Frink]

Because the federal government has no such Constitutional authority.  Go ahead and have an amendment passed, if you must.  The powers of the federal government are few and defined, but the powers of the state are vast and undefined.  That is what the law in this nation is, and it is wrong to twist it to accomplish a certain end.

This hasn't really been valid since McCulloch v. Maryland.. Actually it wasn't really valid before that as the creation of the First Bank of the United States, for example, showed.

[Free Palestine]

Because the federal government has no such Constitutional authority.  Go ahead and have an amendment passed, if you must.  The powers of the federal government are few and defined, but the powers of the state are vast and undefined.  That is what the law in this nation is, and it is wrong to twist it to accomplish a certain end.

This hasn't really been valid since McCulloch v. Maryland.. Actually it wasn't really valid before that as the creation of the First Bank of the United States, for example, showed.

So the federal government can grant itself new powers.  Nice.

[Frink]

Because the federal government has no such Constitutional authority.  Go ahead and have an amendment passed, if you must.  The powers of the federal government are few and defined, but the powers of the state are vast and undefined.  That is what the law in this nation is, and it is wrong to twist it to accomplish a certain end.

This hasn't really been valid since McCulloch v. Maryland.. Actually it wasn't really valid before that as the creation of the First Bank of the United States, for example, showed.

So the federal government can grant itself new powers.  Nice.

Well, yes it can. Who's going to stop them, exactly?

Both de jure and de facto, of course.

[J. J.]

Well, the judge in VA just ruled it unconstitutional.

[Skill and Chance]

Well, the judge in VA just ruled it unconstitutional.

And he severed the Individual Mandate from basically everything else in the bill.

[Free Palestine]

Well, the judge in VA just ruled it unconstitutional.

And he severed the Individual Mandate from basically everything else in the bill.

Aww

[CARLHAYDEN]

To clarify.

The original Senate bill was set up where there was a tax which was remitted if a person got acceptable health insurance.

The bill that was passed (enacted) provided for a penalty to those who failed to get acceptable health insurance (i.e. not a tax).

[CARLHAYDEN]

Update!

Judge strikes down healthcare reform law

By Tom Brown
MIAMI | Mon Jan 31, 2011

 (Reuters) - A federal judge in Florida struck down President Barack Obama's landmark healthcare overhaul as unconstitutional on Monday, in the biggest legal challenge yet to federal authority to enact the law.

http://www.reuters.com/article/2011/01/31/us-usa-healthcare-ruling-idUSTRE70U6RY20110131?feedType=RSS&feedName=healthNews

[Beet]

If it is upheld, it will have to be as an exercise of the taxing power. While I expect the Supreme Court would find that health insurance is Interstate Commerce (Indeed when it comes to how the Court views the Commerce Clause, the word Interstate has effectively been rendered irrelevant), I can't see any power under the Commerce Clause that could be used to compel people to engage in Commerce if they don't want to.

Perhaps, although I would argue that the compulsion to engage in commerce is far more lenient and libertarian the compulsion to pay taxes. In the former, you are free to choose who to buy services from; in the latter, you are forced to buy services from the government. If the individual mandate is struck down, Social Security and Medicare ought to be struck down as well, for you are essentially being compelled in engage in commerce with the government under these programs.

[Sam Spade]

As I posted earlier in another thread, the government's commerce clause argument is stupid, and thus doomed to fail. 

I've read through the taxing clause argument too, and I think the weight of precedent is pretty strongly on the side of it not being a tax.  Doesn't mean that can't change.

Which leaves the necessary and proper clause.  Which I think stands a reasonable shot.  Arguing it, though, probably means you're saying health care law is void if you're wrong.

Anyway, this decision today (as opposed to the VA one) will push it up to the SC quite quickly.