Health Care Legislation: USA

[eccentrictinker]

Originally Posted by minnjim

You guys realize stogey is going to skip over posts 7314-7317, dontcha?

Not just Stogey!

I started getting dizzy.

[tmc]

Originally Posted by gingele

Yes, you made it very clear that you agree across the boards with the Heritage Foundation article. I also made it clear that while I respected the analysis, I disagreed with some of the conclusions. And based on what Mel's just posted, it looks like Heritage flip-flopped on some of those very same conclusions that I disagreed with. Interesting.

Not entirely accurate; please re-read the comments Melliedee posted and see if you find a common denominator. As it turns out, Heritage was discussing the legality of the states to implement such plans, well within the rights of people in the several states to do, and the quaint notion that the Constitution bars the federal government from the same activity in some cases. There are still some, admittedly a dwindling few, of us for whom the Constitution and separation of powers still holds meaning. No reasonable reading of the Constitution permits the activity under this law, and I think it should be properly struck down.

Just as an aside, if Congress can mandate one buy health insurance due, in part, to the potential costs the lack thereof may place on the body politic, by what legal reasoning can they be barred from insisting we purchase three portions of fruits each day, seeing as how important good nutrition is to proper health? If Congress can do as they choose under your reading of the Commerce Clause, what things are Congress barred from regulating?

No.

Congress has had, does currently have, and will continue to have the power to pass laws that are necessary and proper for carrying into execution the powers enumerated in the Constitution (see Article 1, Section 8).

One of the enumerated powers granted to Congress is found in the Commerce Clause, that is: the power to regulate commerce among the states.

I don't think anyone has any real argument against the fact that Congress has the power to regulate the health care market. Do you?

If we can all agree that Congress has the Constitutional authority to regulate health care market in the first instance, then the only inquiry is whether this legislation - including the personal mandate - is a necessary and proper execution of power to regulate said market.

I've been saying as much all along, but I don't think you'll find any post of mine here taking the hard-line stance that you seem to be projecting on me. I have said from the get go that this is a close call, with no slam-dunk winner.



The two are completely distinguishable, from the fact that the TSA is not Congress to the fact that the hyper-invasive searches are neither necessary nor proper nor do they achieve (in my opinion) any measurable increase in our security. They are a means without an end.



Again, this is your opinion and you are welcome to it. I don't think there is anything sneaky or back door about it. It's certainly been discussed openly for months now.

And if you don't want people dying in the streets, but appear to be in favor of some measure of health care reform, then I'd be happy to hear what you think is an appropriate way to achieve what you claim to be your goals in this regard. You do realize that without the personal mandate, the rest of the legislation simply will not work? People will still choose to go without private health insurance and yet rely on that Government handout (that you and I pay for) called medicaid when they become sick or injured. Of course they don't have to pay private health insurance premiums, they actually HAVE insurance, in the form of welfare called medicaid. This will also derail the part of the plan that requires insurers to cover pre-existing conditions. Or perhaps that is something you are in favor of? I don't know, it is so hard to tell. Because all I'm hearing from folks like yourself is what you are AGAINST, and not what you are FOR (including the means to achieve it).



Which case do you think should be brought before the Supreme Court?

[ryberg]

Originally Posted by tmc

There are still some, admittedly a dwindling few, of us for whom the Constitution and separation of powers still holds meaning. No reasonable reading of the Constitution permits the activity under this law...

Same old tmc.

[gingele]

Originally Posted by tmc

Not entirely accurate; please re-read the comments Melliedee posted and see if you find a common denominator. As it turns out, Heritage was discussing the legality of the states to implement such plans, well within the rights of people in the several states to do, and the quaint notion that the Constitution bars the federal government from the same activity in some cases. There are still some, admittedly a dwindling few, of us for whom the Constitution and separation of powers still holds meaning. No reasonable reading of the Constitution permits the activity under this law, and I think it should be properly struck down.

Just as an aside, if Congress can mandate one buy health insurance due, in part, to the potential costs the lack thereof may place on the body politic, by what legal reasoning can they be barred from insisting we purchase three portions of fruits each day, seeing as how important good nutrition is to proper health? If Congress can do as they choose under your reading of the Commerce Clause, what things are Congress barred from regulating?

Actually, not only did I read the comments posted by Mel, I read the full text of the other articles.

I fully appreciate the state sovereignty distinction, but it is only one argument among several that were contained in the various Heritage articles. There were other points between them that I actually found to be inconsistent. And while I'm not surprised at the strength of your opinion, I'll run the risk of sounding like a broken record here and say that I don't think it is such a slam-dunk win, not for either side.

I do think that Congress has the authority to regulate the health care market under the Commerce Clause. (I think the argument that deciding NOT to purchase health insurance is NOT economic activity is a very weak argument. Both the decisions and its effects are clearly economic and impact every single taxpayer).

My feeling is that the real argument here is going to focus more on the necessary and proper clause. And if that is the case, then I think the jurisprudence is in favor of Constitutionality. But then again, this is the Roberts court, so....

I also think the Constitution is pretty clear that Congress has the authority to create a tax penalty for those who can afford private insurance but elect not to purchase private coverage.

Especially when examined under Congress' tax and spend authority, we can see that despite using the term "personal mandate", Congress is not literally forcing people to obtain coverage. People can still make the economic decision to abstain from purchasing private health care coverage, it is just that now they will be required to at least pony-up an offset (by way of a tax penalty) towards the the future cost of the health care they'd get via Medicaid. (The penalty being Congress' effort to at least off-set some of the costs the voluntarily uninsured will incur at the expense of the taxpayers when they become sick or injured and look to medicaid to foot the bill).

[ryberg]

Originally Posted by gingele

Actually, not only did I read the comments posted by Mel, I read the full text of the other articles.

I fully appreciate the state sovereignty distinction, but it is only one argument among several that were contained in the various Heritage articles. There were other points between them that were inconsistent. And while I'm not surprised at the strength of your opinion, I'll run the risk of sounding like a broken record and say that it is not such a slam-dunk win, not for either side.

I do think that Congress has the authority to regulate the health care market under the Commerce Clause (I think the argument that deciding NOT to purchase health insurance is NOT economic activity is a very weak argument. Both the decisions and it's affects are clearly economic and impact every single taxpayer).

My feeling is that the real argument here is going to focus more on the necessary and proper clause. And if that is the case, then I think the jursiprudence is in favor of Constitutionality. But then again, this is the Roberts court, so....

I also think the Constution is pretty clear that Congress has the authority to create a tax penalty for those who can afford private insurance but elect not to purchase private coverage.

Especially when examined under Congress' tax and spend authority, we can see that despite using the term "personal mandate", Congress is not forcing peope to obtain coverage. People can still make the economic decision to abstain from purchasing private health care coverage, they will just be deciding to pay the penalty versus paying the premium in an effort to at least off-set some of the costs they would incur at the expense of the taxpayers should they become sick or injured and look to medicaid to foot the bill.

Funny how you always manage to sound so reasonable!

[user 6507]

Well...we'll see how this one goes-maybe it'll end up 2-2. I don't see how the government can claim the states lack standing to bring this challenge.

20 states ask judge to throw out Obama health law - Yahoo! News

[tmc]

Originally Posted by gingele

Actually, not only did I read the comments posted by Mel, I read the full text of the other articles.

I fully appreciate the state sovereignty distinction, but it is only one argument among several that were contained in the various Heritage articles. There were other points between them that I actually found to be inconsistent. And while I'm not surprised at the strength of your opinion, I'll run the risk of sounding like a broken record here and say that I don't think it is such a slam-dunk win, not for either side.

I do think that Congress has the authority to regulate the health care market under the Commerce Clause. (I think the argument that deciding NOT to purchase health insurance is NOT economic activity is a very weak argument. Both the decisions and its effects are clearly economic and impact every single taxpayer).

Fair enough; you did not answer my questions as to whether Congress can mandate we purchase fruit as a precursor to good health and a hedge against future medical costs, nor did you identify any limits on Congressional interference due to the apparently very elastic Commerce Clause.

My feeling is that the real argument here is going to focus more on the necessary and proper clause. And if that is the case, then I think the jurisprudence is in favor of Constitutionality. But then again, this is the Roberts court, so....

I also think the Constitution is pretty clear that Congress has the authority to create a tax penalty for those who can afford private insurance but elect not to purchase private coverage.

Especially when examined under Congress' tax and spend authority, we can see that despite using the term "personal mandate", Congress is not literally forcing people to obtain coverage. People can still make the economic decision to abstain from purchasing private health care coverage, it is just that now they will be required to at least pony-up an offset (by way of a tax penalty) towards the the future cost of the health care they'd get via Medicaid. (The penalty being Congress' effort to at least off-set some of the costs the voluntarily uninsured will incur at the expense of the taxpayers when they become sick or injured and look to medicaid to foot the bill).

Does Congress have the authority to insist everyone buy a burial plot at age 21 in anticipation of a certain death; there is an absolute certainty that everyone will die, where there is no such certainty that everyone will require government paid health care. Why should someone pay twenty years of premiums, or tax penalties, for a service they don't want and may never need; shouldn't that be their choice? Should everyone purchase unemployment insurance, even, or especially, the unemployed, to mitigate the burden on the state of a potential requirements to pay welfare benefits in the future? It is well known that certain socio-economic cohorts use welfare and food stamps at a greater rate than the population as a whole, should they be forced to pay into a program to cover these added costs?

[ryberg]

But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not

cool.

[gingele]

Originally Posted by tmc

Fair enough; you did not answer my questions as to whether Congress can mandate we purchase fruit as a precursor to good health and a hedge against future medical costs, nor did you identify any limits on Congressional interference due to the apparently very elastic Commerce Clause.

I replied to this indirectly when I stated that it is not precisely correct to state this "mandate" that leaves Americans with no choice but to purchase private insurance. They still will have a choice: Americans who can afford private insurance but elect not to purchase it will simply have to write a bigger check to the IRS in April.

And of course there are limits to Congress' authority under the Commerce Clause. I don't recall ever advocating a position where such power was unlimited. We have a 100+ years worth of Supreme Court jurisprudence and short of sifting through all of it, I'll just link you to this and when we both have time we can examine each case one by one to see where the SCOTUS curtails the power and where they limit it.

LII: Supreme Court Collection

Originally Posted by tmc

Does Congress have the authority to insist everyone buy a burial plot at age 21 in anticipation of a certain death; there is an absolute certainty that everyone will die, where there is no such certainty that everyone will require government paid health care. Why should someone pay twenty years of premiums, or tax penalties, for a service they don't want and may never need; shouldn't that be their choice? Should everyone purchase unemployment insurance, even, or especially, the unemployed, to mitigate the burden on the state of a potential requirements to pay welfare benefits in the future? It is well known that certain socio-economic cohorts use welfare and food stamps at a greater rate than the population as a whole, should they be forced to pay into a program to cover these added costs?

Gregg, any Libertarian worth his or her salt could make the same or similar arguments against any piece of Federal taxation. I suppose we should go back to 1914?

[tmc]

Originally Posted by gingele

I replied to this indirectly when I stated that it is not precisely correct to state this "mandate" that leaves Americans with no choice but to purchase private insurance. They still will have a choice: Americans who can afford private insurance but elect not to purchase it will simply have to write a bigger check to the IRS in April.

Your answer is not clear, does that mean I either buy the fruit or pay the tax?

And of course there are limits to Congress' authority under the Commerce Clause. I don't recall ever advocating a position where such power was unlimited. We have a 100+ years worth of Supreme Court jurisprudence and short of sifting through all of it, I'll just link you to this and when we both have time we can examine each case one by one to see where the SCOTUS curtails the power and where they limit it.

LII: Supreme Court Collection



Gregg, any Libertarian worth his or her salt could make the same or similar arguments against any piece of Federal taxation. I suppose we should go back to 1914?

No need to do so for every piece of federal legislation, just the specific ones I asked about will do.

[gingele]

Originally Posted by tmc

Your answer is not clear, does that mean I either buy the fruit or pay the tax?

No, it means that if Federal legislation made it through both Houses and became law, and that law was challenged, then the Supreme Court would have the opportunity to decide if such legislation fit under the tenets of the Commerce Clause, the Necessary and Proper Clause, and the Tax and Spend provisions of the US Constitution.

But since you've asked, your piece of fruit mandate is distinguishable. The price of fruit does not go up because individuals wait until they are starving to buy fruit.

Originally Posted by tmc

No need to do so for every piece of federal legislation, just the specific ones I asked about will do.

I'm sorry, I didn't see any other pieces of Federal taxation legislation in your post. Only more reductio ad absurdum (and also distinguishable) hypotheticals.

[tmc]

Originally Posted by gingele

No, it means that if Federal legislation made it through both Houses and became law, and that law was challenged, then the Supreme Court would have the opportunity to decide if such legislation fit under the tenets of the Commerce Clause, the Necessary and Proper Clause, and the Tax and Spend provisions of the US Constitution.

But since you've asked, your piece of fruit mandate is distinguishable. The price of fruit does not go up because individuals wait until they are starving to buy fruit.

You missed the point entirely; in your understanding of the Constitution would such a law be Constitutional; if not, why not? What reading of the Commerce Clause would either support or condemn such a law?

I'm sorry, I didn't see any other pieces of Federal taxation legislation in your post. Only more reductio ad absurdum (and also distinguishable) hypotheticals.

Interesting point; I bet most Constitutional scholars fifty years ago would have used the same term to describe the current mandate, but here we are.

[gingele]

Originally Posted by tmc

You missed the point entirely; in your understanding of the Constitution would such a law be Constitutional; if not, why not? What reading of the Commerce Clause would either support or condemn such a law?

Well I thought the two were distinguishable and said as much earlier. But I tell ya what, seeing as I am almost a full bottle into this gorgeous cabernet, can we agree that I'll get back to this tomorrow?

Originally Posted by tmc

Interesting point; I bet most Constitutional scholars fifty years ago would have used the same term to describe the current mandate, but here we are.

Yep. True. But again, new does not necessarily mean unconstitutional. There's a lot of shit that's come down that Con Law scholars of the past might raise an eyebrow over.


Oh yeah, and edited to add: You are doing a great job trying to back me into a corner and defend a piece of legislation that I have already acknowledged is not a clear-cut winner on a constitutional level. But I will do my best to play along because you are one of my favorite players!

[ryberg]

Originally Posted by gingele

new does not necessarily mean unconstitutional

And yet that idea seems to be quite the persistent sticking point on this issue.

Is it usually? Or has it been so in past debates over the constitutionality of other points? I don't particularly recall it, but you types would know much better than I would. Just wondering if it's typical rhetoric in such situations or if it is coming up more in this one, and if so, presumably because opponents view this legislation being upheld by the courts as about the equivalent of what has just happened in Venezuela.

[tmc]

Originally Posted by gingele

Well I thought the two were distinguishable and said as much earlier. But I tell ya what, seeing as I am almost a full bottle into this gorgeous cabernet, can we agree that I'll get back to this tomorrow?





Yep. True. But again, new does not necessarily mean unconstitutional. There's a lot of shit that's come down that Con Law scholars of the past might raise an eyebrow over.

My point had nothing necessarily to do with "newness" per se, but rather the fact that you called my points absurd and hypothetical. The possibility that Congress would pass such a law as is now in force would have been considered in the same vein, that is, patently absurd, fifty years past, yet we are saddled with it today. The idea that Congress could pass a law mandating fruit purchase, or perhaps the purchase of government-manufactured cars, may be in our future based upon your reading of the Constitution, absurd as the idea seems today.

Oh yeah, and edited to add: You are doing a great job trying to back me into a corner and defend a piece of legislation that I have already acknowledged is not a clear-cut winner on a constitutional level. But I will do my best to play along because you are one of my favorite players!

I am not looking to "back you into a corner", I'm just trying to see whether there are practical, or impractical as the case may be, limits to Congressional authority, and where those limits are.