If the healthcare law is overturned, universal healthcare is dead forever

[Beet]

It should be noted that the individual mandate is the only method for getting anything near universal health care that has ever come anywhere close to political acceptability or having been pushed in both parties. The only alternative is directly government funded health care, so it would take a dramatic shift to the left by the GOP to make that possible.

[Beet]

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).

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].

[Beet]

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).

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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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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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.

[Beet]

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.

[Beet]

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.

[Beet]

What affect does me kissing my girlfriend have on commerce?

[Beet]

"Necessary and proper" is almost universally disdained as a road to saving the mandate. Using that prong would justify almost anything. So we are left with the fuzzy line test based on how big the elephant is. And everything we do affects commerce - from the moment we are born. Once you have two people whose activities affect one another, you have commerce. And in an economy where there are not fifty wholly autarkic economies in each state, it affects interstate commerce. So are are back to the issue of the final interment of federalism, putting aside whether or not the fuzzy line test has any attraction to enough Justices who are not quite ready to arrange for the burial service.

You seem to be arguing that since everything can be regulated as interstate commerce, nothing can be.

Eh, the argument that I can see is that the notion that everything affects interstate commerce in some way is a platitude, so that argument which depend on it can't be reliably depended on. In U.S. vs Lopez (1995), the government argued that the crime rate affected interstate commerce, and the justices didn't buy it. Of course the court isn't totally averse to arguments about indirect affects, as Wickard v Filburn (1942) shows.

Apparently the judges thus far have been somewhat hostile to the taxing power argument, although I have to admit that that one seems to be the stronger one to me, personally. Roberts raised something similar with the effect of questioning the strength of the mandate, and it really isn't very strong.

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The whole broccoli example is absurd if the mandate is seen as enforced through a tax, because then all the government does is force us to 'buy' things. Literally everything the government does is the functional equivalent of 'forced buying.' Witness the protestations about the funding of Planned Parenthood.

[Beet]

The two main arguments I've heard against that it is a tax-- first, that if you do not buy insurance you pay a fine described as a 'penalty', but it is a penalty for not paying a tax, because the act of purchasing insurance in accordance to the so-called mandate itself has the properties of a tax. The mandate itself is a tax because-- well, the whole point of it is to inject money into the national insurance pool. The good that it is designed to uphold is entirely monetary. In contrast to say, a law against speeding, which is designed to protect a non-monetary benefit (safety), or a law against littering (cleanliness), the mandate is inherently monetary. The supporters of the mandate are not saying that having insurance is inherently morally superior to not having insurance. They simply want to compel people-- through incentives, to contribute more money into the system. It seems pretty absurd to me how something that is functionally equivalent to that which is purely constitutional can be struck down simply because of some matters of semantics. But again, the judges don't appear to like this argument, so admittedly I'm not quite sure what to think. I'm not a lawyer :/

[Beet]

If I may ask, why isn't the tax argument getting any credibility?

In any case, it seems to me w.r.t. to the commerce clause at least that it would be hard to argue that the mandate is unconstitutional regulation and at the same time that the mandate is essential to the requirement that insurance companies accept those with preexisting conditions-- because the latter clearly is a constitutional regulation. So one has to either accept that the latter is somehow practicable without the mandate, in which case it must be severed, or that the mandate is somehow necessary to requiring companies to accepting preexisting conditions, in which case the mandate is necessary for the government to be able to effectively enact regulations on this market.

[Beet]

If I may ask, why isn't the tax argument getting any credibility?

In any case, it seems to me w.r.t. to the commerce clause at least that it would be hard to argue that the mandate is unconstitutional regulation and at the same time that the mandate is essential to the requirement that insurance companies accept those with preexisting conditions-- because the latter clearly is a constitutional regulation. So one has to either accept that the latter is somehow practicable without the mandate, in which case it must be severed, or that the mandate is somehow necessary to requiring companies to accepting preexisting conditions, in which case the mandate is necessary for the government to be able to effectively enact regulations on this market.

At tax is a charge on a transaction or property, not a charge due to the failure to do something - that is a fine.

What about tariffs? Bringing something into the country, by itself, is neither a transaction or property. It seems that governments throughout history have come up with all sorts of ways to collect revenue, the fact that so many being tied to transactions only for the practical reason that if you are transacting, you likely have something for the government to take. Same with property. Obviously the government can't collect from someone who has nothing in the first place. In the end, the defining feature of taxes seem to be that they are meant to raise revenue [that of fines to punish], and that's why I'm focusing on the fact that this 'mandate' is really about bringing money into the insurance pool, and that it's clearly about incentivizing, with any language about punishment applying to the failure to pay only - but whatever. I suppose this debate is already finished.

In any case, going back to your question of a limiting principle, couldn't you establish one based around how directly such action or inaction affects the actual market? I.e., eating broccoli, kissing, or doing something that may increase the perceived crime rate, affects the market but only in extremely indirect ways-- whereas not buying insurance - like not buying wheat, directly affects the price?