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Author Topic: If the healthcare law is overturned, universal healthcare is dead forever  (Read 2796 times)
anvi
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« Reply #25 on: March 25, 2012, 10:00:31 pm »
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I agree Alice is very much alive.  I speak to her daily on numerous occasions, in fact.  I'm just saying I don't think it can be both in this case.
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Torie
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« Reply #26 on: March 25, 2012, 10:52:54 pm »
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I agree Alice is very much alive.  I speak to her daily on numerous occasions, in fact.  I'm just saying I don't think it can be both in this case.

Alice goes both ways here, because if the Feds can do the mandate, Constitutionally, then they can do anything that the states can do, but in the instant case, where it was revealed that reality was that it was the Leviathan - DC style - unleashed, in fact they did next to nothing. Just because something has irony attending it, doesn't make it untrue.  But next time, what they may do, unleashed, might be more than next to nothing. And they might be coming after you. 

This little exercise in Paulite paranoia lite assumes arguendo that you think the states are worth a damn. And that brings one to the race to the bottom thing, which is the Pandora's box in the closet on the other side of the hallway. They're everywhere. I need a toke - now.
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Sam Spade
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« Reply #27 on: March 25, 2012, 11:35:11 pm »
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Torie has pretty much hit the nail on the head with regard to what I think is the winning argument on the whole matter, so much so that there's no need for me to repeat anything.

What I would mention is that for this argument to be seriously challenged, one would need to show a clear limiting principle, such that the health care mandate, as presently structured, if allowed, can be logically distinguished from other such direct mandates down the road.  The government's brief has not done that, nor has anyone else.
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« Reply #28 on: March 26, 2012, 12:47:44 am »
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If the Supreme Court does overturn healthcare reform, Democrats and liberals might as well close the book on efforts to ever get universal healthcare.  The reason is that Republicans have drawn themselves a near lock on control of the House and Democrats are not likely to get 60 Senate seats again anytime soon.  Think a Republican Congress is ever going to pass universal healthcare?  Forget about it.  This is do or die for Democrats.  
The PPACA isn't universal healthcare anyway, so I don't see how this is relevant.

This.  The reason why the bill's constitutionality is being questioned is because of the individual mandate.  The court can strike it down, but I don't see how this would prevent Democrats from passing NHC in the future, especially if they propose something that doesn't include an individual mandate. 

What will prevent Democrats from passing healthcare in the future is clever REpublican gerrymandering.  Unitil Democrats can break up GOP gerrymanders in the big states, there chances of getting a House majority, let alone one big enough to pass universal healthcare are slim to none.  Obama and the DNC royally screwed the Democrats in 2010 when they refused to focus on state legislative races.  2010 really was do or die for Democrats. 

Focusing on the House sure turned out swimmingly for them.
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anvi
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« Reply #29 on: March 26, 2012, 01:06:59 am »
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I wrote many drafts of a response over the past few hours, and then just gave up.  Hopefully some wisdom will descend upon me in the future, which will permit me to give up far sooner.
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anvi
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« Reply #30 on: March 26, 2012, 02:05:36 am »
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Ok, I'll just write it.  We've been through this over and over, so I guess arguing about it now doesn't make much sense when the big nine will rule as they rule soon enough anyway.  But, whatever.

Of course irony doesn't make something untrue.  But saying that one and the same bear is too weak to rip open one plastic bag but powerful enough to rip open all plastic bags is not irony.  And saying that one and the same law that is too weak to compel product-purchase in one market is strong enough to compel product-purchase in all markets isn't irony either.

But, instead of saying that, we're now saying that PPACA's mandate should be struck down because it could have been, or could be worse?  The argument now is that SCOTUS is supposed to shoot down a current law, not because the current law breeches the constitution, but because a future law sort of similar to it but only stronger might?  So, now we have SCOTUS striking down fantasy laws by using the ones before them as proxies?

I was really unaware that I don't give a damn about the states.  I had not thought about that.  But it could be true.  I guess, at the end of the day, I believe that an individual's right to access health care coverage trumps a for-profit insurer's right to deny them coverage or rescind them just because they were already sick.  That is the point of striving for universal coverage.  Do I think mandates are the only way to get there?  Well, the only two routes to universal coverage that I'm aware of so far have been the two mentioned above.  Now, we're told again and again that the "socialized medicine" of a national system is "un-American" and on top of it won't work.  That means that, if the U.S. is to achieve universal coverage, it will have to do so within the framework of a multipayer system.  Well, so far, universal coverage in a multipayer system has required the implementation of mandates.  Now, I'm not some a priori dogmatist.  There's nothing precluding the possibility that someone may come up with a new route, so maybe individual mandates are not the only tool in the box.  If we were trying to get universal coverage with mandates, than I surely agree that the Obamacare mandate is woefully inadequate to the task.  No argument there.  But then again, I don't really believe that health insurance, even if we preserve its offering through private companies, should be a for-profit industry in the first place.  Not because of red-herring issues like the size of profit margins, since health insurance is a low to middling profit-maker to begin with, but because I think making investors happy shouldn't be a motive when it comes to deciding who or what to cover--it's the way the system skews incentives in the wrong area of life that bugs the hell out of me.  If we as a nation really believe that a health insurance company's right to profits is more important than an individual's access to health care, then I think we've become dogmatists about just how many areas of life free-market principles have to dominate, and, with regard to this matter, it's a profoundly unethical sort of dogmatism.  If that makes me an anti-federalist or un-American, then so be it.  In the grander scheme of things, I've actually been called worse.
« Last Edit: March 26, 2012, 07:42:44 am by anvi »Logged

Torie
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« Reply #31 on: March 26, 2012, 11:17:28 am »
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No anvi, it is much simpler. Sorry, if my text has been a mystery within a riddle wrapped in an enigma.

If the mandate is upheld, federalism as a constitutional matter, where the power of the Feds is limited, is essentially dead, even though the mandate itself is very small beer. Now in the real world, if not having a national standard for something creates a situation that is essentially unworkable, denying the Feds the power to manage the economy in a way that absent that, we all sink into the abyss, then obviously that will influence SCOTUS (as it did during the Depression vis a vis the commerce clause). They are practical men, and don't live in a bubble, and in that sense, the Constitution is indeed a living document. But here, there is no such compelling need to finally inter federalism. There is an easy finesse, even if you think the concept that everyone should be paying medical insurance who can afford it because we have these "free" emergency rooms, and we just don't let folks die in the streets, is a sine qua non to avoiding sinking into the fiscal abyss. So at this time, there is no compelling need to effect such a radical adjustment to the meaning of the Constitution. You only go radical in the most interesting of times. This is not one of those times.

Make sense?
« Last Edit: March 26, 2012, 11:20:22 am by Torie »Logged

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« Reply #32 on: March 26, 2012, 12:28:43 pm »
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Torie, what is in your opinion the best way to have a mandate without actually having one? Make into a tax? Isn't a fine already sort of like a tax?
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Torie
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« Reply #33 on: March 26, 2012, 12:53:40 pm »
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Torie, what is in your opinion the best way to have a mandate without actually having one? Make into a tax? Isn't a fine already sort of like a tax?

Yes, a tax, and yes economically the mandate is like a tax, but not legally. A tax is where you make a levy on a transaction. So you just raise taxes on everyone, and give it back in the form of a tax credit for those who have insurance. It is well settled that you can bribe folks to do something, even if the Feds lack the power to lash them into doing something. Anyway, as I have said, the finesse is an easy one here.

Anyway, almost all legal scholars agree with me on this one, FWIW. The action surrounds the reach of the commerce clause, not whether this puppy is a tax.

Addendum:  Here is a quite entertaining vignette on today's arguments, where the Solicitor General was arguing today that it was not a tax, but tomorrow will argue that it is, and the Justices basically chewed the guy up and spit him out - all of them. As I said, they just ain't going to find it a tax.
« Last Edit: March 26, 2012, 02:57:02 pm by Torie »Logged

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« Reply #34 on: March 26, 2012, 04:29:03 pm »
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What Torie is saying reminds me of Tim Pawlenty's "health impact fee".
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« Reply #35 on: March 26, 2012, 06:01:37 pm »
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Bismarck was just a stooge of Bill Ayers, anvi. Just be thankful that you escaped whatever totalitarian hell-hole you used to live in and arrived at the land of freedom (fries). Smiley

On another note, this article chronicles just how fringe a Constitutional challenge to the mandate was deemed at the time of the law's passage- even by conservative and libertarian legal experts. This is a classic case of asking ma [SCOTUS] 'cause you didn't get the answer you wanted from pa [democratic political institutions].

If only they had packaged as a tax, where you raise taxes, and get it back as a tax credit if you buy insurance. The thing is, if the interstate clause reaches this, it reaches everything. Heck, you could be fined for not buying a Chevy Volt!

It doesn't matter how it's packaged, it matters what it is. Laws are always packaged as different from what they are. Was the "Patriot Act" the essence of patriotism? Many people who would consider themselves patriotic do not support the continuation of the (whole) act. Is the Stand Your Ground law just about your right to stand in a public space? Or, is it also about public safety and proportional force? It is clearly about both, but it was not "packaged" as both. If we start judging laws by now they're packaged, they're be no limit to Congressional power. It was would unprecedented. The government would be able to force you to eat broccoli and buy Chevy volts [both silly comparisons, fwiw] simply by labelling their act a Nutrition and Environment Bill. After all, how could Nutrition be unconstitutional? In short, you're splitting hairs here.

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So just strike the minor and toothless mandate since it is so easy to repackage it as a tax, and the law will be just about equally unworkable and bad, with or without the mandate, so just doing a severing does no real damage to the law itself.

The idea that Congress will pass a tax to make the law whole again is absurd; If this were a Bush or Romney initiative Boehner would try to go for it, as it is he will not. Pelosi would support it, although she'd oppose it if it were Romney's idea. Behind the screen here are no policy reasons, but political reasons.

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In short, there is no compelling public policy need quite yet for the commerce clause to swallow everything, and put the final nail into federalism as something mandatory rather than discretionary under the Constitution.  I think that is a killer and dispositive argument myself, if you work through the steps that way. 

Are you kidding my dear? The health care industry is not interstate commerce? I don't see how anyone could possibly see this as more expansive than a person growing marijuana in their back yard. So essentially what you are arguing is that If I grow marijuana in my back yard I'm trading across states, but Blue Cross Blue Shield does not operate in a national market. This case doesn't "swallow everything", far from it, it is a meek, shy little girl bawling in the corner of the ballroom, and her prosecutors are trying to make her into the belle. The only belle she has a chance of becoming is the one at the conservative judicial activism ball.
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Torie
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« Reply #36 on: March 26, 2012, 06:14:33 pm »
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As a legal matter, savoring the difference between a tax and a fine, and between regulating someone doing something versus not doing something, is an acquired taste Beet. Give it time.

If the Feds can regulate doing nothing, I would be interested in knowing what remains that they cannot do (absent some other Constitutional proscription other than it is beyond the reach of the commerce clause), and how that is different than regulating doing nothing when it comes to health insurance.

If I were arguing for Obamacare, I would make job one trying to outline just how upholding it has not eaten federalism alive, because something, somewhere, remains a class of something relevant to the human condition that is not within the reach of the commerce clause. I frankly can't think of anything, but you are a smart and creative guy Beet who thinks outside the box, so perhaps you can help me here.
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« Reply #37 on: March 26, 2012, 06:55:09 pm »
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I consider the premise of the question absurd, because to answer it accepts that it is even a rational response to this bill, which I do not accept. I only point out that the substance of the Affordable Care Act's "mandate" provision is identical to the tax-credit system you yourself seem to have no problem with, the only thing being argued over here is the packaging. I consider Wickard v. Filburn a far, far, far more significant case w.r.t. the commerce clause than this thing.
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« Reply #38 on: March 26, 2012, 07:12:52 pm »
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I have a question about a minor detail- Is not buying health insurance actually criminalized? Or is it merely that not paying the penalty is treated as tax evasion? I suspect it's the latter but I haven't been able to find any definitive source.
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Torie
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« Reply #39 on: March 26, 2012, 07:44:35 pm »
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I have a question about a minor detail- Is not buying health insurance actually criminalized? Or is it merely that not paying the penalty is treated as tax evasion? I suspect it's the latter but I haven't been able to find any definitive source.

No, just a fine - with no enforcement mechanism to collect.

That wheat case involved someone doing something. I most clearly understand that you consider it a distinction without a difference.

Pity you won't take up my federalism challenge though. I was counting on you to come through for me.  I was genuinely curious as to what you might come up with.
« Last Edit: March 26, 2012, 07:46:48 pm by Torie »Logged

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« Reply #40 on: March 26, 2012, 07:46:19 pm »
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Single-payer please.
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Torie
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« Reply #41 on: March 26, 2012, 08:12:35 pm »
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Torie has pretty much hit the nail on the head with regard to what I think is the winning argument on the whole matter, so much so that there's no need for me to repeat anything.

What I would mention is that for this argument to be seriously challenged, one would need to show a clear limiting principle, such that the health care mandate, as presently structured, if allowed, can be logically distinguished from other such direct mandates down the road.  The government's brief has not done that, nor has anyone else.

I asked Beet Sam Spade to do that for us, and find where life would yet exist in the zone beyond the commerce clause (hey my failure to wear condoms affects commerce (thank God they created a fundamental liberty right after that privacy thing lost its cache)), but that challenge apparently did not excite his most active and creative brain. Maybe I should create a contest with a monetary reward for the chap who does.
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anvi
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« Reply #42 on: March 26, 2012, 08:29:16 pm »
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I guess I'm still not clear on how this mandate swallows federalism.  What does the mandate not let the states do?
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« Reply #43 on: March 26, 2012, 08:35:59 pm »
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The problem is that not buying insurance isn't really non-participation in the health care market--everyone participates in that market, except maybe for the Amish who can stay close enough to home to never get in a car accident and get taken to the hospital. That "inactivity" manifests itself in suddenly getting sick and going to the hospital, getting high bills you can't pay, and then resorting to bankruptcy to discharge those bills, which has an impact on the health care economy. I'm not making up that sequence of events... it happened to one of the plaintiffs in the case who was suing about the imposition on her freedom of the mandate. She went to the hospital and then bankruptcy court, hardy har har.
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Torie
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« Reply #44 on: March 26, 2012, 08:50:12 pm »
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Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

The ironic thing is that I by and large disdain federalism - always have, and when the Pubs start ranting about it, I just turn off the sound (I already have enough cognitive dissonance).  But I didn't write the Constitution.
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« Reply #45 on: March 26, 2012, 09:06:38 pm »
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Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

True, but that's just a slippery slope argument, which isn't an argument in itself. Health care expenditures are a massive part of our economy and part of interstate commerce. You don't have to stretch to see that. Someone eating broccoli or not, you have to stretch really far to see that as part of interstate commerce. And even then, we have an actual precedent of people growing wheat or marijuana for their own possession, which is far more trivial than claiming freedom to not participate in the health insurance market and then getting sick and freeloading on everyone else for health care.
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Sam Spade
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« Reply #46 on: March 26, 2012, 09:41:04 pm »
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Guys everything you choose not to do, or do, affects commerce down the line - there is no escape. If I don't eat certain foods that I should eat, as opposed to other ones, I most certainly will affect the health care market, and my cost to the system. Everything.

True, but that's just a slippery slope argument, which isn't an argument in itself. Health care expenditures are a massive part of our economy and part of interstate commerce. You don't have to stretch to see that. Someone eating broccoli or not, you have to stretch really far to see that as part of interstate commerce. And even then, we have an actual precedent of people growing wheat or marijuana for their own possession, which is far more trivial than claiming freedom to not participate in the health insurance market and then getting sick and freeloading on everyone else for health care.

Of course it's a slippery slope argument, but the problem is that no one has put forth a reasonable dividing line (i.e. a limiting principle) as to what activities that I have not done but allegedly have to do can be regulated by the feds, and which ones cannot that can be used by the courts in addressing other laws which attempt to regulate the same way.  It is doubtful that the USSC would allow the feds to regulate activities not done all the way down the pole, for the reasons Torie mentioned (not to mention the fact that it would swallow up other provisions, like the taxing and spending clause, which are broader in scope), so one has to be able to articulate a practical (not to mention constitutional) limiting principle in order to win, I suspect.

The limiting principles that health care is different because it is a large industry or because its something people always have to use I just can't see working.  Think about why. (or maybe re-read Torie's post above)
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anvi
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« Reply #47 on: March 26, 2012, 09:47:10 pm »
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I'm still missing a step--sorry I'm slow, but I genuinely want to understand the argument.  My understanding up to now is that the major objection against the ACA mandate is that if gives the government too much power over individuals, since allowing this mandate to survive would give the government sweeping authority to require the individual to purchase anything in the name of government regulating its favorite market in any given week.  But this thing about federalism keeps coming up, which makes it sound like the mandate is infringing on the rights of the states, and not the individual.  I don't get that part.  Isn't the commerce clause an enumerated power of the federal government with regard to commerce between the states?  What does the mandate in ACA require the states to do?
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Sam Spade
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« Reply #48 on: March 26, 2012, 10:10:56 pm »
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I'm still missing a step--sorry I'm slow, but I genuinely want to understand the argument.  My understanding up to now is that the major objection against the ACA mandate is that if gives the government too much power over individuals, since allowing this mandate to survive would give the government sweeping authority to require the individual to purchase anything in the name of government regulating its favorite market in any given week.  But this thing about federalism keeps coming up, which makes it sound like the mandate is infringing on the rights of the states, and not the individual.  I don't get that part.  Isn't the commerce clause an enumerated power of the federal government with regard to commerce between the states?  What does the mandate in ACA require the states to do?

Well, there's nothing that says the mandate cannot infringe on the rights of the states, as well as the rights of the individual, in that the two are not coterminous.

Federalism, in its most basic utterance, is the concept that state governments possess certain powers within their purview that the federal government cannot abrogate.  Historically, these types of state powers were commonly defined as "police powers" and they were outside the realm of federal intervention.  With the broader understanding of the commerce clause, and also Section 5 of the 14th Amendment (not to mention the taxing and spending clause), the Court in the latter half of the 20th century has allowed many of these police powers to go by the wayside.

My long road here is merely saying that the mandate does not compel the states to do anything; rather, it takes away a power of theirs to regulate these types of activities directly, namely use of the police power to mandate that people have health insurance (which any state government could certainly do), and limits it severely.  The argument is that the federal government does not have the power to do this under the commerce clause, in that they cannot regulate the citizens into performing certain activities - that is the state's job.

The individual rights argument is a much newer argument, as are all individual rights arguments, which basically find their genesis in the latter half of the 20th century.  The difference is that the individual's right to choose whether to purchase health insurance or not (or whether or not to use health care - to be more direct) is affected directly, as opposed to the indirect federalism argument, where states are not compelled to do anything, just have their powers taken away.
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« Reply #49 on: March 26, 2012, 11:04:04 pm »
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The Reader's Digest version is that the concept of federalism is not about whether some arm of the government can force you to eat broccoli (some arm can absent something in the Constitution saying to the contrary), rather it is about whether the Feds as opposed to the States can ... just like Massachusetts  can effect a mandate to buy health insurance, but the Feds cannot - absent the commerce clause saying the Feds can do anything the States can do. 
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