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Is there a legal case against the health-care bill?

With the votes counted and the legislative battle finishing, conservatives are turning to a different branch of government to fight health-care reform: the courts. Their most promising tactic was to argue that "deem and pass" would be unconstitutional because the House and the Senate passed slightly different versions of the same bill. Previous challenges on those grounds had failed, but this is a different court and health-care reform is a different beast. But then the House rejected deem and pass and voted on the bill through the normal order. Undeterred, conservatives -- most prominently Ken Cuccinelli, Virginia's ambitious attorney general -- are planning to file suit against the individual mandate.

So is this -- or any of the other challenges being contemplated by conservatives -- likely to work? The basic answer is that the Supreme Court does not like to invalidate important laws passed by Congress. But for a more thorough look, see this article by Dave Weigel (who will soon be my colleague here at The Post!).

To put it very simply: This is good politics for conservatives but an unlikely legal strategy. And as Dave's article makes clear, the politicians pushing it know that as well as anyone. Two of the grounds for challenges that most excited conservatives ("deem and pass" and the Nelson deal) will not be relevant to the final bill, as "deem and pass" wasn't used and the Nelson deal is going to be erased in reconciliation. That means conservatives are largely left with the individual mandate -- an idea developed by the conservative Heritage Foundation and passed into law in Massachusetts by Republican presidential aspirant Mitt Romney -- and that's very unlikely to be repealed.

It's also less important if it is repealed. The virtue of challenging how the law is passed is that a successful effort could invalidate the whole thing. Not so with the individual mandate, which is a small (though important) piece of the bill. If the unlikely happened and the mandate was repealed, you could simply replace it with something like this and the bill would work very much as intended.

And as a final note, let me propose a new rule: No conservative who supports these legal challenges can complain about activist judges ever again.

By Ezra Klein  |  March 23, 2010; 9:56 AM ET
Categories:  Health Reform  
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Comments

I like your new rule, but in case you haven't noticed, hypocrisy has never stopped them.

Posted by: jh-c | March 23, 2010 10:08 AM | Report abuse

Conservatives lost the right to complain about activists’ judges after the Exxon V. Baker decision.

Well, they lost the right to CREDIBLY complain about activist judges. They'll still whine, nothing can stop that, but people who know anything about the issue can blow it off as the rantings of know-nothings.

Posted by: nisleib | March 23, 2010 10:08 AM | Report abuse

What about the fact that the bill mandates that everyone buys health Insurance???
Where does the constitution allow for this???
Our Liberties are being flushed down the crapper!

Posted by: np2j | March 23, 2010 10:12 AM | Report abuse

"And as a final note, let me propose a new rule: No conservative who supports these legal challenges can complain about activist judges ever again."

Come on Ezra - you expect our elected leaders to not want to have it both ways?? The audacity...

Posted by: el_tigre | March 23, 2010 10:21 AM | Report abuse

Why ask someone who is not a legal expert to write about this? How about someone with legal creds? The legal issues are all complex (e.g., standing, federal court, reach of Commerce Clause) and deserve full explanation by the Post. Klein's comment about the SC not liking to overturn Congress is downright silly: Scalia and company have struck down recent Commerce Clause statutes that are at least as reasonable as this one. I personally think the states will lose, but the Post has an obligation to provide good legal analysis.

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Posted by: aqwohennia | March 23, 2010 10:24 AM | Report abuse

np2j, it's allowed to fine people for not having health insurance for the same reason that it's allowed to penalize people for not being married, as our tax system currently does, or for not having children, or for not donating to charity, or for not spending money on education, etc.

This legislation easily falls under the purview of interstate commerce, which has been interpreted broadly ever since Gibbons v. Ogden in 1824 and which has consistently found by the courts to support legislation with much smaller commerce implications that this reform package.

Posted by: jeffwacker | March 23, 2010 10:26 AM | Report abuse

As a conservative, I like the opt out provision Ezra links to a WHOLE lot more than the mandatory provisions in the current bill. You could even make the opt out provisions a little less draconian by saying that if an individual opts out and subsequently needs care, the government will cover the bill but establish a debt that will be collected by garnishing wages, attaching assets etc. Most people, myself included, would probably opt to stay within the system. But at least it would be OUR choice, not one imposed on us from above, a difference that consistently seems to elude liberals.

BTW, from my conversations with fellow knuckle dragging neanderthals, if the Democratics had started the discussion a year ago with a clearly articulated opt out/in provision, they probably would have neutralized 2/3rds of traditional Republicans and about 1/4 of the Tea Party crowd.

Posted by: WoodbridgeVa1 | March 23, 2010 10:28 AM | Report abuse

Conservatives lost the right to complain about activist judges after Bush v. Gore.

Posted by: bcamarda2 | March 23, 2010 10:36 AM | Report abuse

By 2002, the Supreme Court had ruled 158 acts of Congress unconstitutional: by 2008, the number had risen to 229. So, for the 6-year period ending in 2008, the Court each year ruled an average of 12 acts of Congress unconstitutional.

The full list can be found at http://www.gpoaccess.gov/constitution/pdf2002/046.pdf with a supplement at http://www.gpoaccess.gov/constitution/pdf2002/2008supplement.pdf (page 169).

Posted by: rmgregory | March 23, 2010 10:37 AM | Report abuse

the opt out suggestion is nice, but has a huge flaw. the folks who opt out probably still can't pay for an expensive ER visit if they have a heart attack, stroke or whatever, and those are the costs that are getting passed on to the rest of us in our premiums. you can't waive the right to go to an ER, and you can't promise me you won't get sick.

and it's the above that makes it constitutional. the argument is that the commerce clause shouldn't reach to penalizing INactivity (not buying insurance) but the argument ignores that your failure to purchase insurance burdens me and my employer, with tremendous effect on interstate commerce, because the cost of your care is in my employer's health insurance benefit cost.

and no one is making you do anything. it's a tax differential. no one claims that the mortgage interest deduction is a home buying mandate, but it's just a huge penalty for renting rather than buying a house. same difference. we could raise everyone's taxes a tiny bit, and give everyone a tax break if they buy insurance. same net effect. it's just simpler to do it the other way. there are lots of tax surcharges for particular behaviors.

Posted by: JoeT1 | March 23, 2010 10:41 AM | Report abuse

"if the Democratics had started the discussion a year ago with a clearly articulated opt out/in provision, they probably would have neutralized 2/3rds of traditional Republicans and about 1/4 of the Tea Party crowd."

I'm not so sure. Most of the opposition has been whipped up by the right wing media driving a narrative of fear (gov't takeover, death panels, etc.). If the dems had changed one part of bill, the shameless shills at Fox News would have found something else to fuel the hysteria.

Don't believe me? I talked to a woman recently who can't sleep at night because of this modest healthcare bill. She admits that she never really followed politics or the news before, but now that she does, she ONLY watches Fox News.

Posted by: writinron | March 23, 2010 10:44 AM | Report abuse

the opt out suggestion is nice, but has a huge flaw. the folks who opt out probably still can't pay for an expensive ER visit if they have a heart attack, stroke or whatever, and those are the costs that are getting passed on to the rest of us in our premiums. you can't waive the right to go to an ER, and you can't promise me you won't get sick.

and it's the above that makes it constitutional. the argument is that the commerce clause shouldn't reach to penalizing INactivity (not buying insurance) but the argument ignores that your failure to purchase insurance burdens me and my employer, with tremendous effect on interstate commerce, because the cost of your care is in my employer's health insurance benefit cost.

and no one is making you do anything. it's a tax differential. no one claims that the mortgage interest deduction is a home buying mandate, but it's just a huge penalty for renting rather than buying a house. same difference. we could raise everyone's taxes a tiny bit, and give everyone a tax break if they buy insurance. same net effect. it's just simpler to do it the other way. there are lots of tax surcharges for particular behaviors.

and as for activist judges, George Will has pointed out the hypocrisy of conservatives on that score with respect to the Elo eminent domain abuse case (There weren't enough activists like Scalia to reverse the legislative act on constitutional grounds - the liberal majority was probably chuckling over behaving the way conservatives always demand they act). An activist judge is simply one who overturns legislation you like. When you don't like it, suddenly activism isn't a problem.

Posted by: JoeT1 | March 23, 2010 10:45 AM | Report abuse

You guys can opt out when the hospital in my county can put you out on the curb when you show up in need of level 1 trauma services without any means of paying for them except my tax dollars.

Posted by: luko | March 23, 2010 10:45 AM | Report abuse

It bears mentioning that no matter what, Repubs will have to pass it with a veto-proof majority of 60 votes because Obama will veto it.

Posted by: joebanks | March 23, 2010 10:47 AM | Report abuse

So why is the party that wants to eliminate frivolous lawsuits the one
So the anti-frivolous lawsuit party is
now going to file a bunch of frivolous lawsuits?

Their hypocrisy has no bounds.

As others here have noted, the current supreme court is an activist court. They've already gutted long-standing, local gun laws as well as overturned long standing campaign laws that now allow corps to interfere in elections. Not to mention that they ignored virtually every constitutional legal scholar in their 2000 bush v gore election coup.

I have no doubt

Posted by: Lomillialor | March 23, 2010 10:48 AM | Report abuse

What about taxing every person this $750 (the fine amount), then giving them a rebate back in their taxes for having insurance? Then if you have no insurance, you don't get the tax write off you get for having it, as folks with a Mortgage, or Kids do? The Tax wouldn't need to be specified as an Insurance Tax...or maybe SS tax increases $750 per person, or something? Then you avoid a "fine", as it seems taxes are to a person that has no children.

Posted by: Beavker | March 23, 2010 10:48 AM | Report abuse

The silliest thing about all of this is that the "no mandate here!" laws passed in VA and elsewhere are completely moot. If the mandate is unconstitutional, it's illegal whether or not a state specifically forbids a mandate. If it's constitutional, state laws can't trump it.

As to the Commerce Clause, there was a time when it expanded to cover just about anything Congress wanted to do, but the SC has been chipping away at it for decades now. Given the rightward bent of the court, particularly the 4 most conservative members and what I think is a propensity to arrive at the result they want and reason back from there, I think it's certainly possible that they could strike down the mandate.

I think it's still a long shot, but I won't breath easy until I see a decision in support.

Posted by: MosBen | March 23, 2010 10:49 AM | Report abuse

Sorry for last post. iPhone hiccup.

Posted by: Lomillialor | March 23, 2010 10:50 AM | Report abuse

I thought so-called conservatives didn't like "legislating from the bench".

Oh, it's OK when it's in their favor. Like how the right-wing packed Supreme Court appointed George W. Bush president when his daddy called in his markers.

Posted by: ceefer66 | March 23, 2010 10:52 AM | Report abuse

Since when was Ezra, or his soon to be colleague qualified to determine the outcomes of Constitutional laws.

Also a reminder to Ezra, the Supreme Court just recently overturned part of the McCain Feingold law that restricted free speech 60 days out for corporate entities. So don't sit there in your liberal cube at the WaPo and say that its unlikely.

If you spend 10+ years studying and practicing Constitutional law, then maybe you can comment on this subject.

Posted by: alutz08 | March 23, 2010 10:52 AM | Report abuse

Since when was Ezra, or his soon to be colleague qualified to determine the outcomes of Constitutional laws.

Also a reminder to Ezra, the Supreme Court just recently overturned part of the McCain Feingold law that restricted free speech 60 days out for corporate entities. So don't sit there in your liberal cube at the WaPo and say that its unlikely.

If you spend 10+ years studying and practicing Constitutional law, then maybe you can comment on this subject.

Posted by: alutz08 | March 23, 2010 10:53 AM | Report abuse

republicans ARE dumb. If they want single payer government run healthcare then go ahead and challenge the mandate. Its the quickest way there.

Ideology trumps common sense again!

Posted by: visionbrkr | March 23, 2010 10:54 AM | Report abuse

And yet many of us are required to have liability insurance on our cars by state governments. It protects others from the cost of our actions.

Likewise mandatory individual health insurance protects others from covering our bill at the emergency room because we were irresponsible and had no insurance. You do not get free care because hospitals can't turn you away and you have no money.

The bill is passed on to your fellow citizens.

Posted by: mpw101 | March 23, 2010 10:55 AM | Report abuse

Reminder to ceefer66... that the independent review of the ballots in Fl by this news organization, showed that Bush did beat Gore.

Now, since that issue is 10 years old, and long since settled... drop it and move on.

Posted by: alutz08 | March 23, 2010 10:55 AM | Report abuse

These lawsuits aren't about winning a legal victory, though the language may be couched in that way. They're about winning a political victory.

Posted by: publius1 | March 23, 2010 10:58 AM | Report abuse

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I love how they are setting themselves up for another defeat. What a bunch of hypocritical morons.


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Posted by: A-Voter | March 23, 2010 11:00 AM | Report abuse

The mandate will kill the bill, before most of its provisions even take effect.

There's nothing "activist" about that. In fact, upholding the mandate would represent judicial activism much more so than tossing the mandate.

Congress just granted itself immense new powers in a direct attack on individual liberty. Their only constitutional basis for doing so is laughably flimsy, recalling the legal reasoning in the Torture Papers in its childlike denial of precedent and unsound reasoning.

I say this as a HARDCORE PROGRESSIVE. If the government wants to levy taxes and offer a new public insurance program, they clearly DO have the authority to do that. Nothing gives them the authority to force citizens to pony up to shady middlemen in the vague hope of eventual access to a product which, as of now, they are legally permitted to purchase directly (medical care). Do citizens not have the right to act as their own guarantors?

Not only is the mandate constitutionally abominable, it's bad policy. What we will end up with is a more expensive version of the status quo.

Posted by: Godfather_of_Goals | March 23, 2010 11:00 AM | Report abuse

Um, The question as to what the federal government can tell the states was raised in 1860 and settled in 1865... just saying.... This is politcal wrangling to keep the issue front-and-center until the elections in Nov. Nothing more...

Posted by: mdsoldier | March 23, 2010 11:02 AM | Report abuse

Conservatives certainly have an outstanding opportunity to scuttle health care reform. All they need to do is argue their case all the way to the Supreme Court, where justices (lower case purposely intended as an insult) Roberts, Scalia, and Thomas will undoubtedly reverse the Constitution concerning the Legislature's 200 year old, written on the Constitution itself, just as strongly worded as the 2nd amendment giving citizens the right to bear arms, power of supremacy over State's Rights. The most activist judicial since the inception of this nation will have no qualms with overturning 220 year old precedence written by the framers of the Constitution itself.

Posted by: swatkins1 | March 23, 2010 11:02 AM | Report abuse

Ezra-I love reading your column, but this one is the low point. Worst legal coverage of complex issue. Readers deserve more. You should at least read the state filings before writing about them. And the alternative, opt-out compromise...? Please give me a break. That would never happen through the courts. It would never pass through Congress as long as Dems lack super majority in both houses. If individual mandate were to be struck down by the Court, the bill would likely be largely repealed because there would be no way to fund the overhaul.

Posted by: hopaj | March 23, 2010 11:03 AM | Report abuse

Ken Cuccinelli, the attorney general of Virginia, is using public money and resources to push his own far right political agenda. This is not an appropriate use of public money. Moreover, his law suit has no chance of success and is a waste of public money on that ground alone.

Cuccinelli is in lock-step with congressional republicans, whose stated goal is to kill the Obama presidency. Instead, they are killing the republican party.

Posted by: esch | March 23, 2010 11:08 AM | Report abuse

Who believes the entire bill is being funded by the penalty charged for not having insurance? Losing the mandate would make it more expensive but that's all. Be a great excuse to open up the public option debate though.

Posted by: Sharon1949 | March 23, 2010 11:09 AM | Report abuse

Put on your "intellectually honest" caps for a moment:

We spend $2 trillion a year on health care.

Which do you think consumes a greater share of that:

The insurance industry, or

the uninsured?

Do you really think it's the uninsured who are driving up health costs and limiting services? Not the massive industry whose very existence relies on taking a massive cut, from both patient and provider, for every medical service delivered (or not)?

In the absence of hard numbers, I think you would have to be crazy to believe that.

Posted by: Godfather_of_Goals | March 23, 2010 11:10 AM | Report abuse

Once again, aqwohennia's post makes the most sense of anything here.

Posted by: signof4 | March 23, 2010 11:11 AM | Report abuse

Ezra Klein wrote, "That means conservatives are largely left with the individual mandate -- an idea developed by the conservative Heritage Foundation and passed into law in Massachusetts by Republican presidential aspirant Mitt Romney -- and that's very unlikely to be repealed. ... If the unlikely happened and the mandate was repealed, you could simply replace it with [passing an opt-out provision] and the bill would work very much as intended."

Two problems with that reasoning. First, the current U.S. Supreme Court has previously demonstrated a political bias, a willingness to side with conservative Republicans, as demonstrated by its taking the 2004 Florida recount out of the hands of Florida's Supreme Court despite the Constitution giving complete control over the Electoral College to the individual States and the Congress. Second, any amendment to the law to make it constitutional would need to be passed despite the Congressional Republican opposition.

Posted by: BTMPost | March 23, 2010 11:11 AM | Report abuse

If the constitution we approve allows the government to draft citizens into the army, require them to pay taxes, appropriate land for the public domain, etc., then why wouldn't it have the power to require them to get health insurance? All these claims of government tyranny are for the birds.

Posted by: poncedeleroy | March 23, 2010 11:13 AM | Report abuse

The current conservative judges are not activists. They are Orginalists. Agree with thier opinions all you want but there is a distinct difference.

Posted by: BradG | March 23, 2010 11:14 AM | Report abuse

If I was from one of these yahoo states I would want the answer to two questions. 1. Why does the AG or the governor not want my family to have affordable health care and protection against medical bankruptcy? and 2. Why is the state wasting valuable resources on a snipe hunt / political stunt when resources are so amazingly scarce from the bush/conservative recession?

Posted by: John1263 | March 23, 2010 11:14 AM | Report abuse

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You can almost hear the background singers queing up: "Spam spam spam spam, spam spam spam spam..."
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Posted by: schmuckatelli | March 23, 2010 11:18 AM | Report abuse

What makes you think anything the Democrats would do would satisfy the tea baggers? They have no rational arguments and are in an absolute violent race baiting frenzy over fiction. They are so angry they don't take a second to ask themselves if their position even makes a modicum of sense.

What slef respecting politician would deliberately do something that was so prominant and public that would hurt people the way the tea baggers are claiming? Even bush the reeetarded knew that when you are planning to hurt lots of people you have to do it through the cover of something else -- like his tax cuts.

Posted by: John1263 | March 23, 2010 11:19 AM | Report abuse

So at the end of the day, all of these AG's and state elected politicians who on the one hand, argue that their states can't afford the added burden of mandated healthcare seem to have found endless supplies of cash to mount an ultra expensive legal battle -- on principle, for some assumed political gain -- that they will likely lose. If a state can compel auto insurance, Congress can compel health care. Please. These are the same folks who argue about but need for tort reform but don't give it a second thought when the use of the courts suits their specific purpose. And to what end? Will the hypocrisy never end?

Posted by: sassafrasnewport | March 23, 2010 11:21 AM | Report abuse

I am not a lawyer, and therefore, cannot comment about the chances of victory or defeat for any side. However, from my layman's point of view, the process usually expected of having the House pass a bill, then having the Senate pass a bill (or vice versa), then having it resolved into a single bill with the same language never took place. If the House had simply opted to accept the bill from the Senate, the normal process would have been followed and the bill being signed by the President would naturally become the law of the land. However, in this case, the House did two things that are contadictory to the process, they approved the bill from the Senate for the express purpose of having the President sign it into law; but they also, knowingly and as planned, attempted partial Resolution by suggesting changes to be acted on by the Senate after the bill becomes law. In addition, we have a Presidential Order introduced into the bill in order to get votes to have the Bill passed.

It seems to me, as a layman, that should this technique be ruled Constitutional, a new technique for getting bills signed into law without completing the work on the bill, will have produced a precedent that could make a mockery of the, formerly, set process. This is a very real threat, I think, when the President states that he is not concerned with process and believes that the people are not concerned about process. America might learn that a single instance of failing to, fully, abide by their Constitution destroys the entire Constitution for all time.

Posted by: CalP | March 23, 2010 11:22 AM | Report abuse

GodfatherofGoals,

good luck with negotiating your million dollar quadruple bypass surgery with your hospital.

Posted by: visionbrkr | March 23, 2010 11:22 AM | Report abuse

np2j: Your liberties were flushed with the Patiot Act.

Posted by: jckdoors | March 23, 2010 11:22 AM | Report abuse

np2J -- do you complain as much about the requirement to buy car insurance? I'm willing to bet that you also complain about having to pay for the uninsured. You can't have it both ways.

Posted by: sassafrasnewport | March 23, 2010 11:22 AM | Report abuse

the conservatives own the supreme court and will reverse this obamacare. Meanwhile, we will go into a depression caused by the democrats. Are you sick and tired of being sick and tired? Get used to it democrats.

Posted by: charlietuna666 | March 23, 2010 11:23 AM | Report abuse

I am not a lawyer, and therefore, cannot comment about the chances of victory or defeat for any side. However, from my layman's point of view, the process usually expected of having the House pass a bill, then having the Senate pass a bill (or vice versa), then having it resolved into a single bill with the same language never took place. If the House had simply opted to accept the bill from the Senate, the normal process would have been followed and the bill being signed by the President would naturally become the law of the land. However, in this case, the House did two things that are contadictory to the process, they approved the bill from the Senate for the express purpose of having the President sign it into law; but they also, knowingly and as planned, attempted partial Resolution by suggesting changes to be acted on by the Senate after the bill becomes law. In addition, we have a Presidential Order introduced into the bill in order to get votes to have the Bill passed.

It seems to me, as a layman, that should this technique be ruled Constitutional, a new technique for getting bills signed into law without completing the work on the bill, will have produced a precedent that could make a mockery of the, formerly, set process. This is a very real threat, I think, when the President states that he is not concerned with process and believes that the people are not concerned about process. America might learn that a single instance of failing to, fully, abide by their Constitution destroys the entire Constitution for all time.

Posted by: CalP | March 23, 2010 11:23 AM | Report abuse

Overturn 200 years of precedent with the Supremacy Clause? I'm sure that constitutionally it shouldn't stand, but the nut bags running the Supreme Court today have proven that settled law doesn't matter.

Posted by: HillRat | March 23, 2010 11:29 AM | Report abuse

John -- re the below, you missed something. You no longer have the option of medical bankruptcy in many cases. Republicans took that away in 2005 for many. For everyone else, you lose your home, your college savings, everything to pay off these bills that are out of control. I don't shop for important medical care in this country any longer. All of those American manufactured drugs? I buy them cash, in Europe, for less than my "great insurance" copay. Procedures? I pursue them through American trained doctors in other Western countries, again for far less than my insurance company would eventually saddle me with. Even John Hopkins has an outpost in India now. And a funny thing happened on the way to the hospital -- these folks are pretty nice. Why bother with the crap in this country right now?
*********************************
If I was from one of these yahoo states I would want the answer to two questions. 1. Why does the AG or the governor not want my family to have affordable health care and protection against medical bankruptcy? and 2. Why is the state wasting valuable resources on a snipe hunt / political stunt when resources are so amazingly scarce from the bush/conservative recession?

Posted by: John1263 |

Posted by: sassafrasnewport | March 23, 2010 11:30 AM | Report abuse

1. You don't need a legal degree to comment on legal matters. What you need is interesting and erudite commentary. Ezra's analysis is simplistic, and possibly a little too sure of the outcome he (and I!) hope happens, but it's not wildly incorrect.

2. Whatever relatively minor flaws exist in Ezra's reasoning are dwarfed by the stupidity of some of the above posts.

BradG, I hope you're joking.

Posted by: MosBen | March 23, 2010 11:31 AM | Report abuse

What Beavker said.

If a mandate to have insurance is illegal, just switch it around - increase everyone's taxes, but give people a tax break for having insurance. Would probably need to be higher in value, given that people psychologically hate losses than the love gains of equivalent sizes. Maybe a tax credit worth $1,000 or 3.5% of AGI, whatever is higher, and reduce current deductions/personal exemptions as an offset.

Or if you opt out, you can no longer join the exchanges, but you can join Medicaid if you need health care, paying 10% of AGI for the priviledge - and if you decide to join Medicaid, you have to lock in for a long time period, say 5 or 10 years.

At any rate, there are numerous easily identifiable ways of getting around a challenge to the mandate, and the Republicans are being silly for making an issue out of it.

Posted by: justin84 | March 23, 2010 11:31 AM | Report abuse

Every effort to challenge this monstrous partisan bill should be made by those that are responsible for its unfortunate approval.
Every page should be scrutinized as to its applicability to the majority of the electorate.
It would have been much easier to have scrapped the bill and start over, but since it was rammed through without the approval of the majority of the electorate, now is the time to evaluate each page no matter how long it takes!

Posted by: SeniorVet | March 23, 2010 11:32 AM | Report abuse

@bradg: The current conservative judges are not activists

Best joke of the morning. This has been the most activist supreme court since the Warrren court.

Bush v Gore, citizens united, etc.

" If the Supreme Court throws out 100 years of precedent just because one party or the other has held the presidency long enough to pack it with ideological proxies, then the Supreme Court is just another tool of partisan politics—and a particularly bizarre, non-transparent and unaccountable one at that. Says who? Says these guys:

A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.

Thus wrote Justices Kennedy, O'Connor and Souter in the plurality opinion in Planned Parenthood v Casey in 1992. The question is whether it would really be a "misconception"." link http://www.economist.com/blogs/democracyinamerica/2009/09/our_radical_activist_supreme_c

Posted by: srw3 | March 23, 2010 11:33 AM | Report abuse

Excellent Rule. But our larger problem is that the Right that has emerged in this country over the last half century, starting at least with Nixon's Southern Strategy and Watergate, has shown increasingly less interest in democratic political traditions in general and certainly less in its long-term nuances which argue self-restraint in the means by which a party acquires and wields power. It has become to win by any means, no matter how dangerously demagogic, and trample laws and practices wherever one believes it possible to get away with it to increase the power of the prize: the "unary executive." The epitaphs of "fascist" and "totalitarian" they now hurl at Obama and his administration, which seem so maddeningly disproportionate to all reasonable observers, are a telling revelation of their own attitudes toward the executive power they are in such a frenzy to wrest again.

Posted by: washpost29 | March 23, 2010 11:34 AM | Report abuse

This is a reply to mpw101: Car insurance is only required for people who want to get a license to drive. The right to drive an automobile is not recognized as protected by the Constitution. The new law requires people to get insurance (or pay a fine) just to keep living in America.

I would have preferred an opt out provision be included. People who opt out would be billed for emergency room and other medical expenses. An opt-out provision would have to allow insurance plans to not cover preexisting conditions for those people who opt out and later want to get insurance. It seems unlikely the indigent would choose to opt out because the law subsidizes their coverage. But if Republican opposition to the law continues, I think it could be difficult for the Democrats to pass that amendment.

Posted by: BTMPost | March 23, 2010 11:35 AM | Report abuse

So, when Congress passes an unConstitutional bill and the President signs it into law, how does the USSC become activist when they reject that? Activist is generally thought of meaning when the courts take their own view, disregarding the Constitution and the Congress, and "make" it law.

There are some very good Constitutional questions on the individual mandate and remember that the burden is on those who think that somehow the burden is covered by some provision in the Constitution. Otherwise, the right to be feel from Congressional whims is firmly stated by the Constitution to rest with the people.

If the individual mandate is deemed as unConstitutional, then the whole package falls apart as no longer do you have a funding means...

Posted by: CrackHead | March 23, 2010 11:36 AM | Report abuse

CalP: the process was perfectly OK. The house passed the Senate Bill unconditionally, and the President signed it. Once signed, Congress can amend it any time it likes. The House voted on a bill to amend the Senate bill after it passed the senate bill. The senate will either adopt it or not. If it does, it will be a perfectly good bill amending a previously enacted bill. Happens all the time. The back to back votes are unusual, but they are distinct votes. The House knows that it is taking its chances that the Senate won't pass the amendment and that the Senate bill will remain the law as is.

even if the individual mandate is set aside, not such a big deal. First, it isn't assumed to be a major funding source. The whole idea is that people want insurance and will, in fact, pay for it if it's affordable, and no penalties will be necessary, or collected. The point is to get people insured, not raise money from penalties. They may do just that with the subsidy carrot alone, without the penalty stick.

And there are relatively simple alternatives that reach the same result. no big deal.

Posted by: JoeT1 | March 23, 2010 11:37 AM | Report abuse

There is no legitimate legal case. But, with five intellectually dishonest, right wing activists on the Supreme Court, anything the wing nuts try in court might have SOME chance.

Posted by: dolph924 | March 23, 2010 11:37 AM | Report abuse

All this running on repeal assumes that Americans are idiots. Repealing a law that the President considers a momentous and nationally transformative event ithout a 2/3 majority - not 60 in the senate but 67! is impossible. Period. And if the republicons don't know that much then they should never be trusted in government, if they do and are playing the tea baggers for bigger suckers than anyone already imagines means they are flat out dishonest.

Posted by: John1263 | March 23, 2010 11:39 AM | Report abuse

Federal, state, and local governments already mandate that individuals pay for a very large number of products and services with general income, property, and other taxes. Universal health insurance coverage should have been, and should be paid for with general taxes as well, instead of splitting it out to highlight that people are paying for it.

What if people had to pay for other government services and products separately? There would be lots of protests. In fact, in the past, some people did refuse to pay for specific government products and services, such as the Vietnam War, that were paid for out of general taxes, by refusing to pay a portion of their income taxes.

For example, people could refuse to pay for IBM's bungled computer system for the FBI that wasted millions of dollars of taxpayer money. The government just says "oh well..." and the taxpayers foot the bill.

Posted by: foofoofoo | March 23, 2010 11:42 AM | Report abuse

@CT666: we will go into a depression caused by the democrats.

It looks like stiff competition for the best joke of the morning.

The financial crisis, leading directly to the great recession, which was incubated when republicans controlled all three branches of govt and born during the republican presidency is actually the fault of the dems. Who knew that the dems could make policy while the repubs control the levers of government. What a hoot!

Posted by: srw3 | March 23, 2010 11:43 AM | Report abuse

Ezra,

Before you (a non-attorney and a mediocre journalist) comment on legal issues, you should do more research. An activist judge is run who reads into the Constitution things that are not there. Thus, if a judge finds that the federal government does not have power to require an individual mandate under the U.S. Constitution because the Constitution does not enumerate that power to the federal government, then the judge is going by the intent of the Constitution and not an activist.

Posted by: columbiaheights | March 23, 2010 11:44 AM | Report abuse

So if Repubs take the House and/or Senate later this year, what's stopping them from repealing, at least, the mandate? I guess the words "veto" and "filibuster" come to mind. Regardless of who controls what and when, I suspect this thing will be tinkered with for decades.

Posted by: Fletch_F_Fletch | March 23, 2010 11:44 AM | Report abuse

I'm tired of paying taxes for my neighbors police and fire protection. Why don't they just go and get a job and hire their own fire dept and police dept if that's what they want. I have had it with socialism.

Posted by: Maddogg | March 23, 2010 11:45 AM | Report abuse

With the current Supreme Court, I would not be surprised if the whole deal is invalidated.

If you look at some of the rulings they have made, they are less influenced by precedence and law then they are by whatever is the current trend among their conservative masters.

Meanwhile, the opt-out provision would do the same as not passing the bill. The people, as you pretty well know, who would opt out would be the clowns like np2j - who are probably generally healthy.

The pool, while still larger, would still be dominated by people with a greater tendency to use the benefits. Paying out more money for more services is not the right direction.

If some of these self proclaimed patriots felt a greater connection with their nation than with their bank accounts (like the Founding Fathers they think they are emulating) all of this would be moot.

Posted by: TOMMYBASEBALL | March 23, 2010 11:45 AM | Report abuse

"With the votes counted and the legislative battle finishing, conservatives are turning to a different branch of government to fight health-care reform: the courts."

The counted votes for this act of socialism were from a Congress that was supposed to represent the people.

This is a travesty. They are indeed redistributing the wealth. Some of which is my light weight middle class salary.

Just talked to my CPA yesterday -- when my parents' property sells, almost 25% of it will go to those, among whom have never worked a day in their life, those who have been keeping the beds warm in drug rehabs, single mothers who love having kids without any father to take responsibility -- but they keep having the kids.

This is a sad time in America.
Obama's votes did not come from the people.
They had to cheat, bribe and pay-off but they did it.

Pathetic Obama.

Posted by: pjcafe | March 23, 2010 11:45 AM | Report abuse

and they lost that right why? There you go again giving no ground for content. Does it cross any of your minds that if the individual mandate is unconstitutional it should be repealed? This is activism in your mind? Is there no clear-cut constitutional issues or not?
Ans. there are.

Get off your political high-horses and see the forest for the trees.
What I have resented most in this non-debate is the blatant disregard for the truth. For goodness sake, they passed the senate bill only because they could not dare send a marked up bill back for fear of not passing it. Marked up with what they, they being the House wanted. What does that tell you all? The ends justifies the means. That's what I see. And when that happens at the highest level of our government - we are no better than our enemies. Stick that in your empty pipes and smoke it during your pseudo-celebration today.

Posted by: gary928 | March 23, 2010 11:46 AM | Report abuse

Mandating that all citizens buy health insurance is not the same as requiring car insurance. First, you don't have to buy car insurance. You are only required to buy car insurance if: (1)You own a car, and, (2)you operate it on public roads. If you have a car that you keep in the garage as a hobby, no insurance required. If you have a drivers license but don't own a car, you don't have to buy insurance. If you just drive friends cars or rental cars, you don't have to buy insurance, but the car does have to carry insurance.

The other point is that you will be required as a citizen to purchase health insurance supplied most likely from a private entity. If the mandate was for the purchase of a government supplied insurance, the mandate might have a stronger basis.

Posted by: bobhein | March 23, 2010 11:46 AM | Report abuse

and they lost that right why? There you go again giving no ground for content. Does it cross any of your minds that if the individual mandate is unconstitutional it should be repealed? This is activism in your mind? Is there no clear-cut constitutional issues or not?
Ans. there are.

Get off your political high-horses and see the forest for the trees.
What I have resented most in this non-debate is the blatant disregard for the truth. For goodness sake, they passed the senate bill only because they could not dare send a marked up bill back for fear of not passing it. Marked up with what they, they being the House wanted. What does that tell you all? The ends justifies the means. That's what I see. And when that happens at the highest level of our government - we are no better than our enemies. Stick that in your empty pipes and smoke it during your pseudo-celebration today.

Posted by: gary928 | March 23, 2010 11:46 AM | Report abuse

Harry Reid approval at 9%
Nancy Pelosi approval below 15%

Posted by: pjcafe | March 23, 2010 11:47 AM | Report abuse

Mandating that all citizens buy health insurance is not the same as requiring car insurance. First, you don't have to buy car insurance. You are only required to buy car insurance if: (1)You own a car, and, (2)you operate it on public roads. If you have a car that you keep in the garage as a hobby, no insurance required. If you have a drivers license but don't own a car, you don't have to buy insurance. If you just drive friends cars or rental cars, you don't have to buy insurance, but the car does have to carry insurance.

The other point is that you will be required as a citizen to purchase health insurance supplied most likely from a private entity. If the mandate was for the purchase of a government supplied insurance, the mandate might have a stronger basis.

Posted by: bobhein | March 23, 2010 11:48 AM | Report abuse

The current conservative judges are not activists. They are Orginalists. Agree with thier opinions all you want but there is a distinct difference.

Posted by: BradG | March 23, 2010 11:14 AM
***********************

You seem easily confused by labels. Let me help. "Originalist" is a meaningless label they apply to themselves to suggest they have a special ability to divine "intent" of folks who died 200 years ago.

"Activist" is the term most rational folk use to describe their actual behavior.

Confuse the two at our nation's peril.

Posted by: abqcleve | March 23, 2010 11:49 AM | Report abuse

CalP: You need to understand that many bills passed by Congress each year are done this way. There is nothing "new" about this process. In fact, the GOP used it more...and scoffed at the idea there was anything wrong with it 2000-2006

Posted by: maurban | March 23, 2010 11:49 AM | Report abuse

Maddogg - just so you know, I got it.
Pretty funny too, but maybe too dry - I think it went over most others heads....

Posted by: TOMMYBASEBALL | March 23, 2010 11:50 AM | Report abuse

Can the federal government mandate that no federal funds be used for abortion?

Posted by: Maddogg | March 23, 2010 11:51 AM | Report abuse

pjcafe, No one cares about you or your pitiful little sob story. You're a lying sack of Nads, and I know this because I have been through just about every possible scenario tax-wise, and nothing you wrote has ever even been a possibility. Dummy up if you don't know what you're talking about. Turn Rush Limbaugh off, and try thinking for yourself.

Posted by: swatkins1 | March 23, 2010 11:51 AM | Report abuse

You are a fool.

Posted by: tiktin | March 23, 2010 11:51 AM | Report abuse

Response to CalP: It is not unconstitutional for a simple majority in the Senate and House to pass a bill. The 60 vote super-majority rule in the Senate is not a provision of the Constitution; it's something the Senate imposed on itself. The rules of the Senate have never been considered subject to judicial review. Failure of Congress to follow its own procedures might be a basis for review. Or the Court could declare some provision of the law unconstitutional.

By the way, did you know that the Constitution does NOT give the U.S. Supreme Court the right to overthrow laws passed by Congress and signed by the President? Early in the nation's history the Court granted itself that power and most administrations have gone along with that. (Andrew Jackson is the exception.)

Posted by: BTMPost | March 23, 2010 11:53 AM | Report abuse

If "Natoma" is so sick Obama, how about sending Sean Penn to help her?
Can he raise some money for her?

How about the young boy, Marcellus, who has been traveling the country to talk about how his mother died because she did not have health insurance? Who wrote his lines? Who recruited him?

Where was Obama when his mother was dying and as he said she was doing all the paperwork and trying to deal with insurance companies?
Could he have asked his mentor, George Soros, to help his mother? Or, did Obama just not care -- he had bigger fish to fry.

Posted by: pjcafe | March 23, 2010 11:53 AM | Report abuse

I'd still like to see some legal analyst explain in detail how the insurance purchase mandate does not violate the Commerce Clause. I'm an atty. and don't understand how Congress has the power to make individuals engage in a private, commercial activity, i.e. purchasing health insurance from private providers. The only analogy I can think of the the National Flood Insurance Program, where certain homeowners living in federal floodplains are forced to buy flood insurance, but this healthcare law applies to everyone, everywhere. I question whether that mandate will be upheld.

Posted by: adhughes | March 23, 2010 11:54 AM | Report abuse

Our governor has not used by half, the federal monies available for economic revival. As an Indiana Citizen, I certainly do NOT want our State to waste its time and dwindling resources by participating in this ridiculous lawsuit. Our schools and education system need the money very badly. We shouldn't be throwing that money away for political grandstanding.

Posted by: HoosierLady1 | March 23, 2010 11:54 AM | Report abuse

The American left has made a choice: they want to replace the term "individual liberty" with the term "individual mandate" in the lexicon of American political language.

That is what the next election and the one succeeding it will be all about.

Posted by: theduke89 | March 23, 2010 11:55 AM | Report abuse

Conservatives love activist Judges.
The Conservatives Justices are far more likely to overturn Legislative Actions than the Moderate Judges, and the Conservatives Judges are far more likely to reverse past rulings, so by any honest definition of Activist Judge, the Conservatives are the Activist.

Posted by: Muddy_Buddy_2000 | March 23, 2010 11:55 AM | Report abuse

This sums it up rather well, I think. My dad is a family doctor who has worked at a hospital and in private practice for 30 years. He says this bill will be disastrous. I'll take his word over the morons in congress any day.

Posted by: RB1019 | March 23, 2010 11:56 AM | Report abuse

Fire and Police Departments have been "deemed" to be socialist. AG's from the severla states will challenge the legality of Fire & Police Departments.

Q - Does a neo-con have the right to drink from a public water supply?

A - No. The first drink indicates they are a socialist.

Posted by: Maddogg | March 23, 2010 11:57 AM | Report abuse

Another head for MedUSA

Posted by: teutonicvalkyrie | March 23, 2010 11:58 AM | Report abuse

So, they want activist judges to repeal legislation that was passed by the elected House, Senate and White House?

Republicans hate judicial activism, unless they lose elections and have conservatives on the bench to do their dirty work.

Is there anything about the modern GOP that doesn't reek of cynicism?

Posted by: AxelDC | March 23, 2010 11:58 AM | Report abuse

Ezra,

Have you ever heard of the concept of Limited Government? How about personal freedom?

What is next Ezra? If the government can pass a law that forces citizens to buy a product what would stop the government from mandating that we all buy GM cars? The government owns the company!

Do not lose sight of the purpose of this bill, to ensure that the insurance companies fail. An honest reading of the bill and the fees, restrictions and regulations to come will make sure that happens. So then we must all look to the government for health care.

This is not alarmist, read the law.

Posted by: Mark53 | March 23, 2010 12:00 PM | Report abuse

Q - Does the government have a right to issue mandates is the question?

A - Is this a trick question?

Posted by: Maddogg | March 23, 2010 12:05 PM | Report abuse

As long as the law mandates that ERs treat every patient that shows up, regardless of ability to pay, then the Federal government has the right to mandate health insurance.

If we want to go to a society where the ER does a credit check before they treat your heart attack or gaping chest wound, then we won't have to worry about the hospital, often a government-run institution, getting stuck with the bill from those unwilling or unable to pay for their lifesaving treatments.

If we mandate insurance, then those people will be more likely to get timely check ups and less likely to end up in the trauma wards, uninsured and on the verge of death.

Posted by: AxelDC | March 23, 2010 12:05 PM | Report abuse

Did you forget that activist judges put Bush in the White House?

Posted by: paul2150 | March 23, 2010 12:06 PM | Report abuse

i tawt i taw a neo-con activist judge at the state of the union address, didn't i?

They're hypocrites. We already have "activist" "conservative" "judges" on SCOTUS -- what do you think that campaign finance ruling in favor of corporations was about?

My larger concern is that people who claim to be conservative, Republican, tea baggers –– these people can call other people the N-word and the F-word with no reproach from their so-called leadership. Republicans really aren't about governance, ain't they?


Posted by: tony_in_Durham_NC | March 23, 2010 12:07 PM | Report abuse

If the federal government can legally order Americans to buy a particular product, even if purportedly for his/her own good, what can it not do? Many will not obey and risk the fine. Many won't pay the fine so that the costs of health care will be paid by someone else. This bill must have been written by people with little real world experience- a rich San Francisco woman, for example and with a community organizer overlooking matters.

Posted by: mhr614 | March 23, 2010 12:08 PM | Report abuse

I haven't heard much about how the money will be managed on the back end. Will this create another fund that the government can borrow from in order to finance its massive appetite for war and the like? A huge chunk of the national debt is already money that the government owes to itself.

I guess as long as they promise not to touch it we can trust them.

Posted by: MrTracker | March 23, 2010 12:09 PM | Report abuse

BradG wrote: "The current conservative judges are not activists. They are Orginalists."

Hosrsesh1t. They are by DEFINITION activist Justices. The definition was coined by conservative repubichairs a long time ago, while at the same time repeating ad-nauseum about interpreting the Constitution as the original framers meant it to be interpreted. How? God only knows.

Posted by: swatkins1 | March 23, 2010 12:09 PM | Report abuse

I strongly believe the Health Care Bill is unconstitutional and pray that the Supreme Court throws the whole bill out. The people giving and accepting bribes to vote for this bill also broke the law and it is high time they were arrested and held accountable for being the criminals they are. When Americans read about the crooked governments in other countries most decry the horror of having to live in such a place. However when the US congress and the president openly run a criminal enterprise at least a third of the population ignore it because they see themselves as somehow benefiting from the results. Pelosi, Reid, and Obama should all be tried for bribing an elected official. They should also be charged and arrested for lying under oath. When they took their oath of office, they swore to up hold the US constitution, not to pass unconstitutional laws. America was founded as the land of the free. The federal government has no legal right to force you to buy a product of any type. Neither does it have a right to fine you for not buying a product. There are a lot of elected officials that should go to jail for what just took place. I support the TEA Party movement and hope all freedom loving Americans will. We need to take our country back lawfully before the situation gets so bad that a revolution breaks out against the socialist progressive movement that endangers our families and our country. Obama and his cronies have put the future of America in jeopardy. Next they will try to give amnesty to the 20 million illegal aliens in this country to pay off for votes on the health care bill. There are approximately 8,000,000 illegal aliens working full time in our country. They do skilled jobs like carpentry, mason, roofing, drywall, plumbing, etc. If the government arrested their employers as required by law, they would leave. That would provide jobs for 8,000,000 unemployed Americans. The Democrats however would rather protect them and hope they get at least the majority of their votes in elections as a pay back. TEA Party members would have the illegals removed in a matter of a couple months if their candidates win the elections.

Posted by: good_angel | March 23, 2010 12:09 PM | Report abuse

Q - What are you gonna do Maddogg once the courts rule mandates illegal?

A - I'm gonna drive 100 MPH in a 10MPH speed zone.

Posted by: Maddogg | March 23, 2010 12:10 PM | Report abuse

I thank those who are correcting me about the uniqueness of this process. It would be nice if you would point to two or three cases where the House or Senate simply approved the Bill from the other side and then voted amendments that were not discussed under the Resolution process before sending the bill to the President for signature. Also, if there are other cases where the President had to issue a Presidential Order in the middle of, or just prior, the Resolution process to ensure that a bill be signed into law, I would appreciate hearing about it.

I still think that the Resolution process that required back and forth discussions between the House and Senate could be forever rendered unnecessary by this type of procedure.

I have no questions about the super majority. It did not apply in this issue.

Posted by: CalP | March 23, 2010 12:11 PM | Report abuse

If my memory serves me correctly, the mandatory insurance was originally a Republican idea. Didn't John McCain run on that platform?

Posted by: francis4 | March 23, 2010 12:12 PM | Report abuse

I love how mindless leftists attempt to turnaround the phrase "activist judges." Virtually every positive change in the Constitution was imposed by activist judges. A lot of damaging changes were also imposed by activist judges. The fact is that conservative judges are by their nature far less activist than liberal judges. That said and to paraphrase Barry Goldwater, judicial activism in the defense of liberty is no vice.

What the Congress has tacitly proposed here is a change in our understanding of fundamental liberties. The Congress is claiming the right to force people to purchase an expensive service that people may or may not deem necessary. Because the Congress has assumed some responsibility for health care costs over the years, they are presuming they have the right to demand all Americans pony up and buy health care.

Whether you agree or not, this represents a huge increase in the power the federal government exercises over the lives of its citizens.

Has the term "individual liberty" become meaningless in American culture? Do the people no longer care to exercise their rights and enjoy their fundamental freedoms without interfence from an overbearing central government?

We will find out in November and in November, 2012.

Posted by: theduke89 | March 23, 2010 12:12 PM | Report abuse

Driving a car is a privilege and not a right and auto insurance is mandated for the protection of people the driver might injure. Clueless liberals should keep that difference in mind.

Posted by: mhr614 | March 23, 2010 12:13 PM | Report abuse


Thank You, adhughes.

Any idiot can and do comment on this important issue, as Izra Klein has. I guess they enjoy hearing themselves talk.

It would be deeply appreciated to hear real attorneys' thoughts,especially ones who work in this area of the law. But the real answers lie in the courts and, most likely, in the Supreme Court.

Posted by: jeanryan1752 | March 23, 2010 12:13 PM | Report abuse

Judicial activism is when a judge rules based on personal or political considerations rather than the constitution or legal precedence.

The constitution does not give the federal government the power to compel citizens to pay money to private organizations. So, overturning it would be judicial constructionism, not activism.

Like most liberals, this author knows all the right words, but lacks the proper definitions.

As the old saying goes, "a little knowledge is a dangerous thing".

Posted by: grolfff | March 23, 2010 12:15 PM | Report abuse

I disagree entirely about the "new rule." Any challenge would simply be towards whether this bill is against the Constitution as written. There is no activism here, unless a Judge in anyway interprets the Constitution can force a citizen to purchase a private product.

Posted by: ckdiesel | March 23, 2010 12:15 PM | Report abuse

strongly believe the Health Care Bill is unconstitutional and pray that the Supreme Court throws the whole bill out. The people giving and accepting bribes to vote for this bill also broke the law and it is high time they were arrested and held accountable for being the criminals they are
++++++++++++++++++++++++++++++++++++=

And that Republican dingbat Shelby should be on top of the list for BRIBERY and criminal activity. He was trying to bribe the President of the US.

Posted by: Maddogg | March 23, 2010 12:17 PM | Report abuse

"It would have been much easier to have scrapped the bill and start over, but since it was rammed through without the approval of the majority of the electorate, now is the time to evaluate each page no matter how long it takes!"
Posted by SeniorVet
___________________________________

Over and over, the opposition demonstrates they have a very poor understand of our Constitution, our laws, and how our government works. They are angry because they believe the bill and how it was passed violates things they *believe* to be true, but they never question their understanding or lack of it.

We do not have a direct democracy. Laws are not passed by being reviewed and approved by a majority of its electorate. Laws are passed by a majority of our elected representatives. This is not called "ramming laws through." This is called "adhering to the Constitution."

Posted by: hitpoints | March 23, 2010 12:18 PM | Report abuse

Driving a car is a privilege and not a right and auto insurance is mandated for the protection of people the driver might injure. Clueless liberals should keep that difference in mind.

Posted by: mhr614 | March 23, 2010 12:13 PM | Report abuse

+++++++++++++++++++++++++++++++++++++++

Its only a privelege at the behest of the government. The government has mandated what is a right and what is a privelege.

Posted by: Maddogg | March 23, 2010 12:19 PM | Report abuse

An "Activist Court" is one that conjures up Constitutional rights or powers that aren't actually in the Constitution; or alternatively, conjures up reasons why rights or powers clearly written in the Constitution should not apply. It is not activist for the Court to do the job actually assigned to it: protect those rights and powers defined in the Constitution, and prohibit assumption of unauthorized or excessive power by our governments.

Posted by: Augustus2 | March 23, 2010 12:20 PM | Report abuse

Aren't auto insurance mandates implemented under STATE laws?

Posted by: MrTracker | March 23, 2010 12:20 PM | Report abuse

American people. We must stamp out the ludicrous lies and fear mongering from the SHEET(KKK) formerly known as Tea Party and its benefactor the Republican party. Get the word out of how this bill will bring down the deficit which exploded under Dubya who took us to war based on a lie and gave out tax breaks to the wealthiest while hiding the cost of the war from the budget. They need to know that they cannot be kicked off insurance any more due to an illness or kept from it due to a preexisting condition, that their children can be on their parents policy until the age of twenty seven and on and on and on. The Repugnicans talk that they will rescind the bill knowing full well that that is impossible for them period. the democrats will get stronger day by day due to this historic bill today and for that God Bless Americas democracy and its fairly elected leaders. TODAY HEALTH INSURANCE REFORM BECOMES THE LAW OF THE LAND! ALL THE OVERHEATED RHETORIC BECOMES REALITY TODAY!

Republicans please take your lies and fear mongering your we are going to kill grandma, we are going to have government takeover of heath care, we are going to become a socialist country, your vile epitaphs shouted at American civil rights hero John Lewis take all your ignorant signs and slogans, your incitement to violence and stick them all where the sun don't shine. You are sore losers of the worst kind and your small tent is shrinking into just some old white southern men who cannot stand the sight of what Americas future is or the fact that our nations fairly elected leader os of mixed race.
Our nations strength has been and is its diversity period. Women, African Americans, Hispanics, Youth and the Higher Educated are the solid and courageous base of the Democratic Party and its leader Barack Obama.
I am proud to have served this nation on the battlefields of Vietnam and to have sent my son to Iraq on two tours. This is the nation we sacrifice for and are proud of the one that takes care of its own and is not just about ME ME Me. We are not a nation that shrinks its aspirations, We do what is hard and we shape our own destiny that is what makes us the United States of America. OBAMANOS AND GOD BLESS AMERICA.

Posted by: jbento | March 23, 2010 12:20 PM | Report abuse

When Republicans talk about "limiting government" what they really mean is government limiting the things government does that they don't like.

If they really mean what they say, when do we start limiting war? Imperialism? the Defense budget?

Posted by: francis4 | March 23, 2010 12:20 PM | Report abuse

"I'd still like to see some legal analyst explain in detail how the insurance purchase mandate does not violate the Commerce Clause. I'm an atty. and don't understand how Congress has the power to make individuals engage in a private, commercial activity, i.e. purchasing health insurance from private providers."

I don't qualify as a "legal analyst," but I don't see any major problem.

One could justify the mandate under the commerce clause as follows: people who aren’t insured raise health insurance costs, and these costs are distributed by the insurance companies across state lines.

Period.

Posted by: Patrick_M | March 23, 2010 12:21 PM | Report abuse

Wow, so once we pass a bill we finally get an actual healthy debate on one of these Post threads? Barely any name calling or screaming; mostly healthy conversation! I'm actually learning something. Thanks and good for you all who are having constructive conversations, it’s nice to see some mutual respect shown.

Posted by: doesntmatter | March 23, 2010 12:21 PM | Report abuse

Correction: I wrote: "Virtually every positive change in the Constitution was imposed by activist judges."

I meant: "Virtually every positive change in the Constitution that was not passed in the form of a constitutional amendment was imposed by activist judges."

Posted by: theduke89 | March 23, 2010 12:22 PM | Report abuse

Republicans continue to play to their racist base. They are sore losers and not fit to command a commode.

""Don't Spit On Me""

Posted by: Maddogg | March 23, 2010 12:23 PM | Report abuse

Isn't this just like the sue happy Republicans?

To run screaming to the courts when they don't get their way.

Posted by: Andrea_KC | March 23, 2010 12:25 PM | Report abuse

Maybe Klein should read his own paper...oh, that guy didn't agree with him, so he goes elsewhere?
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html

Posted by: zoomie95 | March 23, 2010 12:25 PM | Report abuse

I think Virginia should waste all the money they have and then some. Let the taxpayers fork over more and more money to support the crackpot ideas of their homophobe Attorney General. The Teabaggers should all send money to websites purporting to support constitutional challenges to the law. Waste your money and show the world what fools you are in the process. The law will stand and less money will be available to support crackpot politicians who get their law degrees from Liberty University. Go fools go!!!

Posted by: merrylees | March 23, 2010 12:25 PM | Report abuse

Of course this bill hasn't changed anything about individual liberty. To suggest otherwise is a mix of just self serving rhetoric and a lot of paranoia. If you don't want health insurance so badly, don't buy it and pay the tax. It's still your choice. I don;t like paying taxes either but to suggest the choice of paying taxes or working for money is a restriction on my liberty is beyond nonsense. Wake up hillbillies. This isn't the 19th century anymore. Try joining us in the 21st century.

Posted by: kchses1 | March 23, 2010 12:26 PM | Report abuse

The bill was passed in the process it was because the republicans refused to appoint any conference memebers. That turned out to be a great thing from my point of view. I just want to say that my representatives, house and senate, voted exactly as I hoped they would. Many of us supported this bill. We just didn't get as ugly about it.

Posted by: Sharon1949 | March 23, 2010 12:26 PM | Report abuse

"Aren't auto insurance mandates implemented under STATE laws?"

This analogy constantly arises, but I don't think it is useful. There is a madate in my state, but it does not actually require drivers to be insured, it also offers the alternative of posting a bond that demonstrates that one can personally fund the minimum standard of liability coverage in the event of an accident, in lieu of being insured. I suspect that most other states also have similar liability alternatives.

Moreover, there are people who choose not to drive automobiles, so it is not a general mandate, but simply a condition for using the public roads.

Posted by: Patrick_M | March 23, 2010 12:26 PM | Report abuse

I'm not a fan of RomneyCare, but Massachusetts passing an individual mandate is not the same thing constitutionally as the federal government passing one.

No matter how far the courts stretch the Commerce Clause, it can't logically cover an act of non-commerce, to force someone to buy something they don't want to buy. States may be able to force you to buy auto insurance, but the federal government does not have that power.

And defending the basic tenets of the Constitution is not remotely an example of judicial activism -- it is judicial conservatism, refraining from granting the federal government a new power, just because Congress claims one.

Posted by: CalElson | March 23, 2010 12:28 PM | Report abuse

BobHein and others wrote: Mandating that all citizens buy health insurance is not the same as requiring car insurance. First, you don't have to buy car insurance. You are only required to buy car insurance if: (1)You own a car....

Using this analogy, health insurance is only required if you're likely to get sick. So long as you are a human being, that is a given. Insurance is for the purpose of protecting that which is insured. If you, as a human being, are uninsured, you will envitably get sick and inevitably reach a point where someone else, including your neighbors will have to pay otherwise.

Posted by: sassafrasnewport | March 23, 2010 12:30 PM | Report abuse

Q - Does the government have an obligation to support life?

A - Yes. And health care is part of that obligation. We spend billions - trillions on health care in foreign lands.

Posted by: Maddogg | March 23, 2010 12:30 PM | Report abuse

This argument is NOT about health care reform, this argument is about OBAMA. The conservative jacka**es in this nation will never settle for being governed by a NI**ER.
Plain and simple truth.

Posted by: TOMHERE | March 23, 2010 12:31 PM | Report abuse

I won't forget how the GOP didn't make this about different solutions to a long-standing problem. They made it about the other party being the party of evil, always plotting to do in America while the Republicans play the great patriots and try to save us all. John Boehner, doing what he does out of love of country? Hardly. Boehner goes through his act for his party and his ideology. This is no champion of the middle class, he's a Wall Street man all the way.

Posted by: curtb | March 23, 2010 12:34 PM | Report abuse

The only legal argument is that the Federal government has never mandated that people "BUY" something. This is not a tax but a requirement to purchase a product. Medicare is a tax not an item. BTW people don't have to drive a car but now being born means you have to buy insurance. There are better ways to do it but at least congress has addressed the problem.

Posted by: charladan1 | March 23, 2010 12:34 PM | Report abuse

Thanks Ezra, for picking up the dialouge about the next big battleground for health care in America. But I think you're optimistic about how much respect our conservative Court will give this Congress, and it's important laws.

I hope you're right. I don't see any problem with fining citizens that refuse to obtain health insurance. We all pay, one way or another, for the uninsured. Making the fee explicit keeps free-loaders from pretending they are not part of the problem.

Posted by: wilmetteken | March 23, 2010 12:35 PM | Report abuse

@adhughes: you answered you own question with the comparison to flood insurance. The government requires you to carry flood insurance if you live where floods are a high risk, and a loss may involve costs incurred by others. Likewise, everyone alive is at risk for medical problems, at risk for incurring expenses that get passed on to the rest of us. People outside of flood zones don't have to worry about a loss due to floods. Tell me, who is outside the zone of potential losses from health issues?

Posted by: hitpoints | March 23, 2010 12:35 PM | Report abuse

The Repubicans are very big on the "Pledge of Allegiance". You know... The one that says "...One nation ... , indivisible, with liberty and justice for all."

And in just the past year, Republicans have talked about secession,states rights superseding the Constitution, and taken rights away from people that already had them.

Does no one else see the pathetic irony?

I think that these guys need to re-learn the Pledge, and not just mouth the words.

Posted by: MikeNTxs | March 23, 2010 12:36 PM | Report abuse

Perhaps the Tea party can get John Yoo to write their brief. I'm sure hell find a good argument to support their position.

Posted by: crete | March 23, 2010 12:36 PM | Report abuse

Q. Is there a Legal Case against this Health Care Reform LAW?

A. NO, and the CONSERVATIVE MAJORITY KANGAROO SUPREME COURT, can't make a Case like they did BUSH V. GORE.

These 5 Corporate HOOKERS on the HIGH COURT will have face Reality, and rule in favor the Health Care Reform LAW.

Posted by: austininc4 | March 23, 2010 12:38 PM | Report abuse

Of course there's a legal case. Go ask any lawyer, they'll find something to charge you for.

One option might be to secede and become South Canada or North Mexico?

Posted by: shhhhh | March 23, 2010 12:39 PM | Report abuse

"And as a final note, let me propose a new rule: No conservative who supports these legal challenges can complain about activist judges ever again."

That's about right. They were against activist judges before they were for them.

The same with states' rights. They were for states' rights before they were against them (in supporting a constituional amendment to ban gay marriage).

Yawn.

The conservative judiciary exhibits an equally nauseating hypcorisy only it hides behind the pretext of "textualism" in reaching whatever conclusion it had pre-ordained. (Like the time that the Constituion plainly told Scalia that Florida had to stop its recount.....I think that was Article.....uhhhh.....mmmmm.....eleventy....oneteen????)

Posted by: dsk36 | March 23, 2010 12:39 PM | Report abuse

Just wondering...

In a number of states it is illegal to drive without having auto insurance. People are required to purchase it. No AG, GOP or Democrat, has filed suit challenging that.

Requiring people to buy medical insurance is different than requiring people to buy car insurance in what way? That it's the feds? Irrelevant as the argument is the "requirement", not who is doing the requiring.


But I guess these GOP AGs don't mind spending the people's money for partisan purposes (i.e. to get themselves re-elected by appealing to the teabaggers).

Posted by: lmb02 | March 23, 2010 12:41 PM | Report abuse

The lack of a serious effort by the Republicans to address this problem for eight years is an embarrassment to this country. I dislike the health care legislation, but the Republicans have not tried to do anything constructive. They need to be intellectually honest and not play destructive political games.

Posted by: notagain | March 23, 2010 12:42 PM | Report abuse

If health-care is going to be unconstitutional then my MANDATORY car insurance should be unconstitutional as well.

Posted by: sierra04 | March 23, 2010 12:45 PM | Report abuse

Q - Question before the court.

A - Is it legal for the US to provide health care to other nations, whilst denying the same care for its own citizens?

Posted by: Maddogg | March 23, 2010 12:46 PM | Report abuse

Klein, you've really drunk the Kool Aid. Ever heard of the 9th amandment? It says that just because a person's rights aren't spelled out, doesn't mean that they don't exist. As an example, what you choose to spend your money on. It's your business, not the gov't's. If you want to buy health insurance (a wise investment, I might add) it's my business. If I don't want health insurance, that's my business as well.

Then there is the issue 16000 new IRS agents to act as the Gestapo/Stasi/NKVD/KGB. Are you nuts??? You really must be smoking crack or something if you think the American people will take that lying down.

Then there is the fact that you losers are throwing the old folks under the bus. You guys need your head examined on this one. HELLO, MCFLY!!! OLD PEOPLE VOTE RELIGIOUSLY!!!

Then there is the equal protection clause in the 14th amendment. You losers did the Louisiana purchase, as well as the Cornhusker Kickback. As the Governator put it, Nebraska got the corn, and California (and the rest of the nation, I might add) got the husk.

And flat out, it's unAmerican. America is about taking risks. Life is about rolling the dice, taking a chance, and going for broke to hit it big. It's not about being mediocre.

And America isn't about big gov't. It's about small gov't. The gov't that governs best governs least!!!

VOTE REPUBLICAN!!!

Posted by: A1965bigdog | March 23, 2010 12:47 PM | Report abuse

Treason against the United States, shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort;

Obama the anti Zionist That knowingly gives Millions to nations round the world one being Egypt that is used to funnel money to Buy weapons to sale to Anti American nations an anti zionist nations of allies like Israel, I say Suit Obama Out an the Judges an doctor that back his Action Use constitutional Contempt, Sanctum Mcgallium use the International Maritime Jurisdiction clauses The actions of leader cause Death. These Laws an Views was used to Bring down the Judges and Abortion Supporting doctors with the Hitler move-ment

Posted by: WindSong | March 23, 2010 12:48 PM | Report abuse

Oh Boy...The President and the Democratic Leaders in the Legislative Branch are playing the Right Wing like a cheap fiddle. Think about this for a second. Let's say that the mandate is overturned because the government cannot force the public to buy health insurance from a private company. OK..in that case if you can't afford insurance and you can't be mandated to buy insurance the only choice left is to expand the healthcare law to include the "Public Option". In other words we will expand Medicare to cover the uncovered. It would be nice if the politicians on both sides of the aisle would learn to think past their noses.

Posted by: 24TT42 | March 23, 2010 12:48 PM | Report abuse

So why haven't these so-called Republican conservatives used this route to object to existing socialist Medicare, Medicaid and Social Security? These so-called Republicans are nothing but a pack of closet liberals who've been sitting on their behinds for a lot of years by allowing old age related segregated national health care systems like Medicare, Medicaid and Social Security. And have you noticed that not one of our millionaire Senators pays for their own health care out of their own pockets. What hypocrisy? They're all closet liberals, and the only thing worse than a liberal is a closet liberal.

Posted by: paulusarchitect | March 23, 2010 12:49 PM | Report abuse

Putting an opt-out into the mandate makes a lot more sense. It would not only avoid legal challenges, but it would save the government and insurers a lot of money. The current system already effectively has a similar system by disqualifying people on the basis of pre-existing conditions, which encourages them to get insurance now, before they are sick. By similarly warning people under the mandate that they can opt out, but that opting back in will cost them dearly, the new bill would work better.

As it has been passed, the health insurance bill could actually backfire among a certain segment of the population. The reason is that the current bill does have an opt-out, but a very poorly designed one. Someone can simply choose to pay a fine to the IRS for not having insurance, and then when the person does need insurance, that person can simply sign up, with no exclusions and no penalty for pre-existing conditions. For a healthy, single 20-something earning $40k or $50k per year, for example, the cost of insurance is $4000-8000 per year, but the fine is $700-1250. Not carrying coverage is a minor risk, and a person could end up injured or something, but given that the highest risk at that age--car accidents--is already covered by separate insurance, and that any diseases are probably slow-moving enough that one could pick up an insurance policy once diagnosed, a lot of people at this age may delay coverage and save themselves thousands every year.

The problem is that the current bill actually encourages people to do this by stripping insurance companies of the power to deny pre-existing conditions. The fear of being denied once sick is what drives many people to buy insurance even when they probably don't need it. With that fear now gone, there is less reason to take out a policy when young and healthy, and the fine is small enough that one would have to earn about $200,000 per year before taking out an insurance policy became the more economical option.

Providing people with an opt-out clause would avoid the messy legal challenge entirely, and by laying out stiff penalties to those who may wish to opt back in at any time--which virtually everyone will eventually--the bill would actually be more effective in signing people up.

Posted by: blert | March 23, 2010 12:49 PM | Report abuse

Of course this bill hasn't changed anything about individual liberty. To suggest otherwise is a mix of just self serving rhetoric and a lot of paranoia. If you don't want health insurance so badly, don't buy it and pay the tax. It's still your choice. I don;t like paying taxes either but to suggest the choice of paying taxes or working for money is a restriction on my liberty is beyond nonsense. Wake up hillbillies. This isn't the 19th century anymore. Try joining us in the 21st century.

Posted by: kchses1 | March 23, 2010 12:26 PM | Report abuse

*********************
Oh really? Stop your health insurance and see what happens. The 16000 new Gestapo-IRS agents will be tracking you down. Surely you have the right to spend your money on whatever you feel like, and not what the gov't says you must. It violates the 9th amendment.

This isn't over yet. Not by a long shot!!!

VOTE REPUBLICAN!!!

Posted by: A1965bigdog | March 23, 2010 12:51 PM | Report abuse

The Post becomes a bigger joke everyday! Now we get a legal opinion from the great legal mind of Ezra Klein. What next, String Theory explained by Dana Milbank?

Posted by: MrRealistic | March 23, 2010 12:52 PM | Report abuse

Overturn this unconstitutional bill that was passed with the provision of bribes to crooked Democrats. Arrest those accepting and those giving bribes. Congress will have the right people and the right number of those people to investigate this after the November elections.

Posted by: good_angel | March 23, 2010 12:55 PM | Report abuse

The cuts to Medicare come from lowering the overpayments to the private insurers, who back DeMint, under the private Medicare "Advantage" that the Republic Party passed in the 1990s. The cuts are to the private insurers' Part C gravy train, not the elderly. Elimination of excess profit should please Sen. DeMint.

He objects to a "loss of freedom." That would be the freedom to go broke if you get sick?

He speaks of competition, which is currently prohibited for health insurers. The exchanges inject a wide range of plans and prices into the mix, creating real freedom of choice for the first time.

The plan implements sensible cost controls that stress prevention.

The bill is paid for and then some, unlike your wars, tax cuts for the rich, Medicare Part C& D, or subsidies to oil companies.

And yes, the bill finally removes the student loan program from the clutches of private lenders, which have skimmed off hundreds of billions in profit that could have gone to make more loans or pay down the national debt.

Sen. DeMint and his ilk squeal like greased pigs when the gravy train for their corporate pals derails. That's all they're whining about.

Posted by: mongolovesheriff | March 23, 2010 12:55 PM | Report abuse

You sad, sad, sad sheeple. You were given the greatest form of government by the greatest document every written - The Constitution of the United States. You were give the opportunity to govern yourselves. You were given the opportunity to pursue your goals, shouldering your own responsibilities and therefore assuring your rights. You were given protection from nobility- a ruling class. Yet, you squander it and instead elect and continually reelect career politicians - your nobility. You call them your "leaders," forgetting (or ignoring) that they are your "representatives." You are too lazy, scared, and ignorant to keep your responsibilities - not knowing and not caring that each responsibility you shed is a right lost. Sad, sad day for the USA - now become the UWSA - United Welfare State of America.

Posted by: quark1 | March 23, 2010 12:56 PM | Report abuse

"No conservative who supports these legal challenges can complain about activist judges ever again."

The arguement against the individual mandate is that the U.S. Constitution does not give the Federal Government the power/authority to mandate citizens purchase a product.

Read the Constitution. No such power or authority has been given to the Federal Government.

To believe that the individual mandate is Constitutional is to say that now the Federal Government has the power/authority to force citizens to purchase a product.

To suddently believe that is being "activist", not supporting the Constitution.

Posted by: MDLaxer | March 23, 2010 12:57 PM | Report abuse

"Not so with the individual mandate, which is a small (though important) piece of the bill."

What? Without an individual mandate Insurance Companies go out of business within weeks.

However, I realize that is what you're after in the long run.

Posted by: MDLaxer | March 23, 2010 1:00 PM | Report abuse

The law says that we have to have car insurance and homeowners insurance.

Posted by: rayeraye1 | March 23, 2010 1:01 PM | Report abuse

Ignorance is very expensive. And "educated" ignorant people are of the worst kind. I hope these lawyers plan to work pro bono. Why waste the taxpayers state funds over an issue that will become the law of the land? GOP should sit back and think about this. The people in the force category more than likely have insurance. They just don't want to be told they have to pay but that's what was done for car insurance. Health Care Reform is the right thing to do if we want to hold the title of a world leader. Let's strive to live up to the America greed. ALL MEN CREATED EQUAL...

Posted by: Vonnie932 | March 23, 2010 1:01 PM | Report abuse

Next law on the books is everyone must by a GM car.

Posted by: SSTK34 | March 23, 2010 1:02 PM | Report abuse

I have my doubts about the constitutionality under the commerce clause, however, it is long past time we started building a robust body of law under the preamble which lays out the most basic reasoning for why we even have a constitution and government. The mandate would be undeniably constitutional under the general welfare clause of the preamble.

Posted by: cjdickerson1 | March 23, 2010 1:04 PM | Report abuse

Leave it to "members" of the Republic Party to once again turn to their friends the trial lawyers.

Posted by: whocares666 | March 23, 2010 1:04 PM | Report abuse

Seems to me the only thing the GOP has done during the Obama administration is oh, yeah, nothing. Now the GOP wants to open a new can of worms by involving the courts....again the GOP seems to do nothing unless it benefits themselvs. What an utterly useless party. Keep up the good work, next elections and you'll all be gone. If you are in office regardless of party affiliation you need to work for the people of this country or did you forget that once you saw your shiny offices?

Posted by: dworrell | March 23, 2010 1:08 PM | Report abuse

The same conservatives who have aruged in the past that the judiciary should not sit as a "super legislature" and nullify laws enacted by congress? I wonder if they think everyone is stupid and don't see their glaring hypocrisy?

Posted by: capitalist1 | March 23, 2010 1:08 PM | Report abuse

Those enthusiastic about legal challenge to the law should note that the strongest argument pertains to the individual mandate only to the extent that it compels the purchase of one private party's product by another private party, where the option of paying a tax/fine is not judged a sufficient alternative.

Even in the event the Court reaches to find the individual mandate unconstitutional as written, they are exceedingly unlikely to strike down the entire legislation.

This could easily set up conditions under which the insurance industry, itself, would need to demand a "public option" to work around any Court reasoning and restore an individual mandate as the nominal legal requirement -- a mandate to pay the federal government or, if necessary, the states -- with, now, as the "option," the alternative of paying a private party for insurance.

Otherwise, the prohibition on denial based on preexisting conditions, alone, without the pool created by an individual mandate, would send every insurance company in the country into a classic insurance "death spiral," as individuals withdrew from the market until they fell seriously ill.

It is also worth bearing in mind, both by those who hope these "Originalists" will over-reach to strike down an act of Congress, as well as those who fear these "Conservative Activists" will do so, that the Right of the current Court is actually not especially Libertarian. The Libertarian leaning decisions out of this court have come out of its center and its left.

The Right of the Court is, rather, decidedly Corporatist, pro-Big Business and Executive power to its bones. If this court "over-reaches" politically beyond established law, it is unlikely to do so to the detriment of any corporate interest so massive as that of the insurance industry, which will, let's face it, profit hugely from the individual mandate.

Posted by: washpost29 | March 23, 2010 1:10 PM | Report abuse

I can easily understand the State making me buy insurance that protects people I could harm - I cannot understand how the Government can force me to buy insurance (enter into a contract defined by the same State) for my personal "well being".

I'm no more a Constitutional lawyer than this "partisan" journalist so...

I would certainly like to have the Supreme Court decide just what the Federal government can both define and impose at the same time "for my good" ... worse ... impose it only on some of the citizens for the good of some other citizens.

At least Medicare and Social Security were laws written for "all of the people".

Posted by: sally62 | March 23, 2010 1:12 PM | Report abuse

They might as well save the money and put it toward a more sure remedy. There will be no PEACEFUL solution . ....When the Government ((( FEARS ))) the people , there is LIBERTY "

Posted by: noHUCKABEEnoVOTE | March 23, 2010 1:12 PM | Report abuse

I think the "Individual Mandate" issue is much ado about nothing. I suspect that most of those who claim that they will refuse to buy insurance have always had health insurance and would never consider going without it.

If the mandate is ruled unconstitutional, then a significant waiting period (3-5 years?) should be established for anyone to purchase insurance who has previously chosen to go without it. I'd have no sympathy for anyone who would suffer from their decision. I'm sure there would very few foolish enough to put themselves in that position.

Posted by: fennelltim | March 23, 2010 1:17 PM | Report abuse

For those complaining about the mandate to purchase insurance, I wonder why those same people are not complaining about the mandate to purchase car insurance? It seems to me they go hand in hand. I think someone's body deserves the same or better protection as someone's car. Better yet, no complains about being forced to enroll in Medicare either.

Posted by: EveryDayWomen | March 23, 2010 1:20 PM | Report abuse

"No conservative who supports these legal challenges can complain about activist judges ever again."

#########################

Whoa there! It's not "activist" to confine the commerce clause to its original intention.

Posted by: arlingtonresident | March 23, 2010 1:22 PM | Report abuse

This is LOUSY politics.

They go after the mandate, who freaking cares? You think progressives will go to the wall for it?

You think they wouldn't be perfectly happy to take a position of "hey, let's get rid of the individual mandate now we'll come back to it in 2018 after the exchanges have been up for 4 years, and if we see people are cheating, we'll put it in."

Obama didn't run on the individual mandate. He's more than happy to cut it loose.

This political strategy is only slightly less stupid than running on "Repeal the bill! Kick my kid off my insurance! Make Grandma send back her $250 check!"

Posted by: theorajones1 | March 23, 2010 1:28 PM | Report abuse

Those who say the mandate is unconstitutional are wrong. What about the draft? You will say its covered by the constitution under, "provide for the common defense.".... Yes but no mention of the draft, which is why there was and remains a selective service law. If the draft was still in force, it would apply to all, which is an individual mandate. So knock it off with the "it's unconstitutional" baloney....

Beyond that, there is Social Security and the laws governing federal income taxes. Individual mandates are constitutional and legal...

Of course we do have an ACTIVIST court now, so who knows?

Posted by: robertmerry | March 23, 2010 1:28 PM | Report abuse

And while we're at it, remind me of why I pay to educate my neighbors kids again? Whether I rent or own, I am responsible for paying for their education. Being the selfish SOB that I am, I am sick and tired of being taken advantage of like this. My loss of liberty alone is worth beaucoup pain & suffering. And your grandma's nursing home because you are too cheap to pay for it yourself. Why am I stuck with that bill? Put her out on an ice floe already. And your stupid effing wars. I don't think you won the popular referendum on both of those before you went on your shock and awe campaing. I want my money back!

Posted by: luko | March 23, 2010 1:30 PM | Report abuse

Where in the U.S. Constituion does the Federal government have the power to compel citizens to buy anything?

On the five year waiting period, the same whack jobs that passed the current bill will never pass anything that is fiscally responsible like the Germans have. Bleeding heart Democrats are incapable of fiscal responsibility. Eighty years of welfare state mismanagement and this disaster signed into law today are testament to the stupidity and ineptitude of Democrats. They won't be happy until they completely ruined the country. Eat, drink and sodomize today Democrats, the Reckoning is coming 2 November.

Posted by: maxtel1910 | March 23, 2010 1:32 PM | Report abuse

The simple answer is there a legal case to be made?
NO. But there is a lot of money to be made by republican corporate lawyers and that will be paid for by the people. The republicans are more concerned about pleasing and garnering favor with Rush and his backers than doing what is good for the American people, why else have they all but stopped progress on fixing the mess they made of our economy. The problem with the republicans is two fold, one they serve Rush and two, greed.

Posted by: iseasygoing | March 23, 2010 1:32 PM | Report abuse

All this talk of car insurance reminds me that illegal Mexicans never have car insurance--one damn near killed my wife. What makes you think that this system can operate with illegals all over the country?

Posted by: rusty3 | March 23, 2010 1:32 PM | Report abuse

"And as a final note, let me propose a new rule: No conservative who supports these legal challenges can complain about activist judges ever again." That should have been printed in a bold 96 point font! Thank you Ezra!!!

Posted by: novaski1 | March 23, 2010 1:32 PM | Report abuse

The fed mandate is irrelevant. If it is struck down, the states will still be free to enact their own mandates, and they will to control premiums.

Posted by: HuckFinn | March 23, 2010 1:33 PM | Report abuse

The alternative example to mandatory coverage, the opt-out rule as exists in Germany does not fit well into the system just imposed by congress. Germany has a state-run health care system that one is able to opt out of. But why would most choose that option? For those who are healthy in this country, we do not offer such a system to opt from. Here, one would be eligible to opt out of an onerous system to pay a private insurance company the premiums it demands. That is so dissimilar as to make the German example preposterous to try here.

Still, the effect of requiring immediate coverage of preexisting conditions without simultaneously requiring the young and healthy to buy in, defeats the so-called necessary link of offsetting the additional risk of adding preexisting conditions with those who aren't likely to need medical treatment.

If that balance is put off for four to five years, what is likely to happen to existing premiums during the interim? They not only continue to skyrocket, but will show an afterburner that will be needed to pay for all those preexisting conditions without getting any new revenue from those who won't need medical treatment.

Or as Republicans are likely to ask this fall, and again in 2012, "Have your insurance premiums gone down?" Only to be greeted from the vast majority of Americans with, "Hell no!"

Posted by: infuse | March 23, 2010 1:34 PM | Report abuse

It is not just conservatives that believe that the personal mandate is unconstitutional! As a proud liberal that supports Medicare for all, I too am profoundly disturbed by the individual mandate requiring me to buy a product from a private company simply because I exist. Our government, as per the founding fathers, is supposed to act for the "common good" not for the profit of corporations. We have just as surely been sold up river by the Democrats with this bill just as if it was written by Republicans or the AHIP. Then again, it is almost the exact same bill as written by the AHIP for Bacus and contains almost everything the Republicans were demanding in it!

Posted by: lennyp | March 23, 2010 1:35 PM | Report abuse

Everything Ezra writes is just cheerleading for the left. He is too busy gargling the taste out of his mouth and putting ointment on his knee scrapes to offer any realistic analysis here.


(Oh, and if you think that's out of line, ask yourself if you've used the term "teabagger" in the last day/week/month, hypocrites.)

Posted by: etpietro | March 23, 2010 1:37 PM | Report abuse

Isn't Medicare a government mandate? How about Social Security?

The 'pubs know they don't have a leg to stand on. If they're serious why don't they quit wasting everyone's time and write legislation that will benefit Americans. Oh, that's right...I forgot they're REPUBLICANS and are only interested in tearing down and obstructing.

Posted by: blarsen1 | March 23, 2010 1:38 PM | Report abuse

There is already a national mandate that deals with the commerce clause. It is the mandate that ALL emergency rooms at every hospital must treat ANY person who enters them with a medical problem.
It seems this would put a burden on hospitals to PROVIDE services without pay. Seems like this mandate could be balanced with that one, as a yang to it's yin.
Although with this Supreme Court of the U.S. I would tend to think they might just strike down the first mandate to make the equal protection argument.
Just sayin'.

Posted by: ripper368 | March 23, 2010 1:38 PM | Report abuse

Q - When is the government gonna do something about all the costs I have to pick up for the uninsured. Its unconstitutional.

A - Republicans feel you should pick up these costs in the ordinary cost of doing business.

Posted by: Maddogg | March 23, 2010 1:41 PM | Report abuse

It's unconstitutional for the federal government to mandate what a woman may or may not do with her own body but the Republicans are in favor of that.

The way some laws are adopted by the states is the federal government offers financial incentives if they pass them, such as seat belt laws. Since the Republicans sold out to the financial incentives from the insurance and pharma companies, they should have no problem accepting incentives to accept the bill as written, which will be improved later anyway. Or, some of the current perks from the feds could be cut for those states to encourage them to drop the lawsuit, a tactic Republicans would use.

The radical rhetoric and lies are resulting in fanatics breaking out windows of Democrat legislators but Democrats didn't respond that way when Bush was in power and actual unconstitutional activities were practiced.

The Republicans know they'll lose votes from all those benefiting from the health reform bill, which is all they care about and not the people suffering from the for-profit insurance companies now deciding the health care of Americans. With the government involved, people will have the recourse of going to their elected officials to complain about medical injustices or illegalities.

The bill also includes increases and improvements in college loan programs. Apparently the Republicans aren't in favor of that either.

Posted by: BettyW1 | March 23, 2010 1:42 PM | Report abuse

"One could justify the mandate under the commerce clause as follows: people who aren’t insured raise health insurance costs, and these costs are distributed by the insurance companies across state lines.

Period."
_________________________________

No matter how many times you say it, it doesn't make it true.

Period.

Unpaid bills from the uninsured marginally raise health care costs overall.

Fee-for-service consumers (who may also be counted as "uninsured") marginally LOWER health-care costs, since the parasitic middleman is bypassed, and hours of pointless paperwork are eliminated. The money that changes hands pays for *medical services*, not a mammoth class of professional, private bean counters. There is no incentive on either side to lard the bill with unnecessary or experimental services and treatments. Conversely, there is no incentive for providers to withhold necessary services, since they don't have to worry about getting raped on the reimbursement by an insurance co.

The insurance companies raise costs, not the uninsured.

Posted by: Godfather_of_Goals | March 23, 2010 1:43 PM | Report abuse

Can someone explain to me why, if the individual mandate is unconstitutional, I have to buy insurance in order to register my car and to drive it on the public roads? Why shouldn't mandated auto insurance be repealed? Why should I be forced to install seat belts in my car? Why must I be limited to buying drugs that must be approved by some federal agency? Why must I be forced to pay for FAA inspections of the planes I fly on? I insist on being allowed to do what I please when I please. What is the purpose of society if we can't be free agents always? Or am I already answering my own question?

Posted by: gratianus | March 23, 2010 1:44 PM | Report abuse

Under The Commerce Clause, the congress has broad latitude in regulating commerce. Under the Tenth Amendment, the powers assumed by the various states to regulate commerce are pre-empted by federal legislation. The lawsuits are DOA and represent political grandstanding by right-wing governors.

Posted by: mavajuan | March 23, 2010 1:47 PM | Report abuse

Attorneys General and everyone else who thinks that a mandate requiring people to purchase health insurance is unconstitutional should work to repeal EMTALA, the Emergency Medical Treatment and Active Labor Act passed in 1986.

This federal law mandates hospitals and doctors to evaluate and treat all who present themselves in the Emergency Department. The requirement holds even if the victim caused the injury and even if it occurs during the commission of a crime.

Those who hold this position think it is perfectly fine for people to be given expensive services for which they will never pay. Yet it is unconstitutional to require individuals to pay for insurance that will enable health care providers to be reimbursed for the care that they are mandated to provide. Isn't that contradictory? As it stands now, people who pay for health insurance for themselves also pay for the uninsured. That’s in addition to what every taxpayer contributes.

Don’t Republicans usually oppose to people being given something for nothing? Why is this any different?

Posted by: colton | March 23, 2010 1:48 PM | Report abuse

Ezra- that article by Dave Weigel you linked to doesn't say anything about the legal issues. Has anyone read the new law? It doesn't require everyone to buy insurance; anyone can still refuse to enter into a "private commercial transaction" with an insurance co., but you have to pay the fine. (Section 1501) In this respect, it doesn't go as far as Social Security and Medicare, for which you are taxed without your consent and automatically enrolled in the government old age and health insurance programs.

Posted by: ddrachsler1 | March 23, 2010 1:49 PM | Report abuse

Amusing, historically speaking, the extent to which "Originalists" want to pretend that the "intention" of "The Framers of the Constitution" was little but to perpetuate the weak central authority of the Articles of Confederation.

The stronger, more historically accurate argument is that the Constitutional Convention effected an illegal, bloodless coup d'etat against the existing government of these States, a massive central, national power grab on behalf of the most powerful mercantile, agricultural and financial interests in the former colonies, dissatisfied with economically and geo-politically stifling "sovereignty" of the several States, and aspiring to that continental expansion and global trade and influence which has made America, centuries later, into the great world economic, political and military power it is today.

One can dispute the wisdom of what those "Framers" did, but let's not pretend their "intention" in both the commerce and general welfare clauses, as well as elsewhere, was not precisely to stick in the thin edge of the wedge to move these United States, year by year, inch by inch if necessary, toward a powerful, preeminent central legislative, executive and judicial national government.

Posted by: washpost29 | March 23, 2010 1:50 PM | Report abuse

did not read this article:

But didn't they try the same thing after the civil war?

Posted by: knjon353 | March 23, 2010 1:52 PM | Report abuse

Those questioning the individual mandate need to know that individual mandates exist in most all federal, state or municipal legislation. There are thousands of examples, i.e, Thou shall not jaywalk or thy will fined. You will pay your income taxes and buy insurance for your car., etc. Also, note, that requiring people to purchase health insurance will help those who have insurance with reduced premium costs.

Posted by: mavajuan | March 23, 2010 1:53 PM | Report abuse

Check out this article about our great VA attorney general. The man is a hypocrite on top of wasting Virginia's money on a frivolous lawsuit. What a jerk! I knew I was right not to vote for these people.
http://www.msnbc.msn.com/id/36002614

Posted by: Sharon1949 | March 23, 2010 1:53 PM | Report abuse

Democrats Care!
Republicans Don't!

Posted by: lunetrick | March 23, 2010 1:54 PM | Report abuse

"Fee-for-service consumers (who may also be counted as "uninsured") marginally LOWER health-care costs, since the parasitic middleman is bypassed, and hours of pointless paperwork are eliminated."

I did not argue that the uninsured drive up health care costs, I argued that they drive up the costs for health INSURANCE premiums on the insured, especially with the requirement that health insurance now be guaranteed issue, despite pre-existing conditions, etc.

And although it is irrelevant to the commerce clause arguments, the notion that the uninsured are all on a "fee for service" basis, and are consumers of health care just like the insured (and pay for it all out-of-pocket, cutting out the "parasitic middle man") is just silly.

Posted by: Patrick_M | March 23, 2010 1:55 PM | Report abuse

Me thinks the Republicans are taking hissy fits because a blackman got a giant law passed.

Posted by: Maddogg | March 23, 2010 1:55 PM | Report abuse

For all the idiot conservatives posting here: No one is forcing you to buy insurance. You are being forced to pay a tax. The tax is a penalty for uninsured care, if you do not buy insurance. If you buy insurance, you won't have to pay the tax.

It is all very legal. You are just a bunch of complainers.

No doubt you are against the Income Tax, but that court case was decided at the beginning of the 20th century, and you LOST! You have to pay income tax!

Complain to God about that one. At least he/she/it will listen.

Out here, we don't want to hear your stupid whining any more.

Posted by: bert8 | March 23, 2010 1:56 PM | Report abuse

"Can someone explain to me why, if the individual mandate is unconstitutional, I have to buy insurance in order to register my car and to drive it on the public roads?"

That was already explained in the previous comments that you did not bother to read.

Posted by: Patrick_M | March 23, 2010 1:57 PM | Report abuse

Ezra you're what good journalism is all about. Thank you for your insightful; factual; informative columns.

Posted by: rlj611 | March 23, 2010 1:58 PM | Report abuse

HYPOCRITE


Kid, you, MESS-iah, and the billionaire Kennedys, gonna pay back your Reagan/Bush tax cuts?

Of course not. What the Kennedys understand -- money. Without it -- they're just working slobs.

Liberal hypocrites.

+++++++++++++

And as a final note, let me propose a new rule: No conservative who supports these legal challenges can complain about activist judges ever again.

Posted by: russpoter | March 23, 2010 2:00 PM | Report abuse

The health care bill requires that you either buy insurance or pay a fee. There's nothing unconstitutional about that. There are already many other federal laws that are much more intrusive than this latest health care bill.

Moreover, the bill actually grants freedoms we currently don't have by prohibiting common insurance company practices like denying coverage for preexisting conditions. The bill also promotes competition by providing for health insurance exchanges. You'll have more choice, not less, when it comes to buying health insurance.

It says something that financial support for repealing the health care bill comes mostly from big drug companies. They're all about protecting freedom, if it's the freedom for them to pick your wallet clean. I mean, really, how stupid can you be as to think that the "repealers" are just a bunch of nice folks fighting for your freedom?

Posted by: Bob22003 | March 23, 2010 2:01 PM | Report abuse

Good news everyone! The polls are already turning around according to USA Today. 49% say it is a good thing that the bill passed while 40% say it is not. It is USA Today/Gallup poll so NOT a partisan one.

Here is the link http://www.usatoday.com/news/washington/2010-03-23-health-poll-favorable_N.htm

Posted by: Sharon1949 | March 23, 2010 2:02 PM | Report abuse

My question--If some court outlaws health care insurance because everyone is mandated to have it, what does that do to Social Security? It is a mandated program too.

As someone on Social Security and Medicare, I am leery of these attorneys general and their lawsuit.

Posted by: tinyjab40 | March 23, 2010 2:03 PM | Report abuse

Why don't we just sue Republicans for holding up Congress. All they do is delay and the peoples business goes unfinished.

Posted by: Maddogg | March 23, 2010 2:03 PM | Report abuse

I can't believe that you would call a descision to protect the rights and powers of the states and people as enumerated in the 10th amendment "judicial activism" with a straight face. It's frankly despicable. FYI: A whole lot of people are beginning to wise up to this sort of doublespeak.

Posted by: madhtr | March 23, 2010 2:05 PM | Report abuse

Godfather_of_Goals,
You are living on a far away health care planet. Patients who pay out of pocket are presented with bills many times higher than insured patients receive for the same services. That's because contracts insurance companies hold with providers limit charges. There is no limit for your "fee for service" patients.

There certainly is a huge incentive for uninsured patients not to receive services since, except for those that are very wealthy, the patient can't afford to pay for the services. As a nurse working in a program for the uninsured I've seen this hundreds of times. And yes, people die as a result.

"Unpaid bills from the uninsured marginally raise health care costs overall." MARGINALLY? Are you kidding. Uninsured accident victims can rack up bills totally hundreds of thousands of dollars. I know of one case where the hospital bill alone surpassed $1.4 million.

Godfather_of_Goals, you need to do your homework!

Posted by: colton | March 23, 2010 2:05 PM | Report abuse

The Bill will do exactly what I want, get rid of the private health insurance companies.

The provision requiring americans to buy private insurance will be moot.

Posted by: OneFreeMan | March 23, 2010 2:07 PM | Report abuse

Now that the government is in control I think it is very important that we crack down on unhealthy life styles because it unnecessarily burdens the system. That means ban smoking, drinking, obesity. Also, people should be required to exercise daily and must have their blood pressure and cholesterol checked to be sure they are not out of the healthy range. Certainly they must keep their weight down and must pass the BMI test or be subject to fines. I do not want to pay for anyones unhealthy habits with my health Insurance dollars. Go get them Obama. The ball is in your court.

Posted by: nychap44 | March 23, 2010 2:08 PM | Report abuse

With passage of this legislation into law the Republicans will become a permanent minority party for decades to come.

I guess Dick Armey does not get his One Billion Dollar bonus for defeating HCR.

Posted by: Maddogg | March 23, 2010 2:09 PM | Report abuse

"I thought so-called conservatives didn't like "legislating from the bench"."

Not only conservatives feel this way, most Americans do - and

they also feel strongly about Presidents and Congress people who try to ignore the Constitution and "legislate the bench".

Posted by: sally62 | March 23, 2010 2:14 PM | Report abuse

I do not want to pay for anyones unhealthy habits with my health Insurance dollars. Go get them Obama. The ball is in your court.

Posted by: nychap44 | March 23, 2010 2:08|
++++++++++++++++++++++++++++++++++++++

Better we eliminate guns. Gunshot wounds are a major source of medical costs.

Posted by: Maddogg | March 23, 2010 2:14 PM | Report abuse

If a State sues the Fed to stop the mandatory purchase of health care coverage; doesn’t the State risk loosing any federal funding for Medicaid or federal funding for state supported hospitals that treat the indigent at no costs? I was under the impression that one of the main issues of health care reform was to cover everyone so as to stop the uninsured from using Emergency Rooms as a doctor’s offices for free. I’m no lawyer but every time I have seen a State go head to head with the Fed, they end up either complying or loosing federal funding.

Posted by: gadsen | March 23, 2010 2:15 PM | Report abuse

There are two issues here - and I am disappointed that the Washington Post did not outline the issues - pros and cons - instead of basically dismissing the idea.

The individual mandate is NO WHERE TO BE FOUND IN THE CONSTITUTION - it is a whole new legal concept - and it really has little basis in the Constitution.


The individual mandate could be interpreted as a taking - but does that taking have due process? The only process is - you live, you have to pay.

The second issue is much more complex and it involves the Interstate Commerce Clause - obviously there have been numerous court cases which have expanded this cluase - to the point at which one might believe the entire universe might one day be included.

Well - is that right? You have an industry - health care insurance which has BEEN ILLEGAL TO SELL ACROSS STATE LINES - AND HAS BEEN TRADITIONALLY IN THE POWER OF THE STATES TO REGULATE.

So Obama may have problem there.

This area deserves Constitutional review -


On Obama's side, there were Court cases with ERISA and with Cobra - in which the federal government has strayed - But those cases had a hook-in: employment which interstate corporations.


Health insurance and health care itself does not really have that hook-in. Perhaps they will find another hook-in.


FDR had much of his program struck down by the Supreme Court - Obama loves having things in common with famous people - maybe it will happen again.

.


.

Posted by: 37thand0street | March 23, 2010 2:17 PM | Report abuse

I just purchased an apple orchard. Now I'm lobbying my representative to pass a bill that will require every single American to buy apples because everyone needs to eat. Those who refuse to comply face fines and possible jail time. This is for the greater good.

Posted by: forgetthis | March 23, 2010 2:17 PM | Report abuse

If hypocrisy were a bodily disease, Republicans, especially the ones of the diehard right-wing Obama-hating variety, would be rushed each and every day to intensive care units of hospitals all around the country to receive life-saving treatment.

On the one hand they preach to the country [and the rest of the world] about the right of the unborn to life and on the other hand they vehemently, albeit senselessly, oppose any and all attempts to extend health care to millions of their fellow compatriots. It neither matters nor is it of any concern to them that nearly 123 Americans die every day of illnesses because they do not have health care. And to tap it all off, they never propose a way to provide health care coverage for America’s uninsured millions when they are in power.

I am reminded of what a former John McCain campaign official said about six weeks ago on Chris Matthew’s Hardball show on MSNBC when asked why is it that Republicans never propose, let alone try to pass, a national healthcare plan that will cover the country’s uninsured millions when they are in power - like when George Bush was in the White House and the Republicans controlled Congress. This guy was very honest and forthright in saying that “Republicans do not believe in providing healthcare for everyone. We Republicans believe in letting market forces take care of that…”

And by the way, does any of these reprobate Republican windbags remember the 8 or 12-year Maryland child who died about a couple of years ago from infection induced by abscess in a tooth because the child’s parents did not have health/dental insurance to take him to see a doctor? Did that child have a right to life? Oh, excuse me! I forgot. The right-wingers actually have never fought for living people’s right to life – there is no political capital to be derived therefrom. They kick, yell, curse and fuss about the right of the unborn to be born but not the right of those who are already born to live - say when they are sick or could get sick and need a doctor’s intervention and medical attention.

Posted by: erickaba | March 23, 2010 2:19 PM | Report abuse

Q - Is gun ownership an individual mandate?

A - The constitution is clear here. The right of the "people". It does not say the right of the "person".

Posted by: Maddogg | March 23, 2010 2:21 PM | Report abuse

the analogy to car insurance does hold up. You have car insurance to ensure me that you will be responsible for your own negligence if you hit me. Some states permit you to post a bond for financial responsibility (which is what they actually call the laws in some states) instead of buy insurance.

You can't guarantee me that you won't have a heart attack, show up in the hospital, not pay the bill, and stick me with it.

Personal responsibility is supposed to be a conservative value. All I ask is that you be responsible and pay for the care you might get by buying insurance if you can afford it, rather than irresponsibly betting you won't need an ER and figuring that you will skip out on the bill if you do. I would be happy to have people able to show that they can pay their ER bills from their assets as an alternative to incurring the penalty in the current bill, but short of that, this is just personal responsibility.

Posted by: JoeT1 | March 23, 2010 2:22 PM | Report abuse

If these idiots had to pay their own legal costs, no one would be sueing anyone.
they are all just grandstanding on the taxpayers dime.

Posted by: MarilynManson | March 23, 2010 2:27 PM | Report abuse

I'd still like to see some legal analyst explain in detail how the insurance purchase mandate does not violate the Commerce Clause. I'm an atty. and don't understand how Congress has the power to make individuals engage in a private, commercial activity, i.e. purchasing health insurance from private providers. The only analogy I can think of the the National Flood Insurance Program, where certain homeowners living in federal floodplains are forced to buy flood insurance, but this healthcare law applies to everyone, everywhere. I question whether that mandate will be upheld.
==========================
This is what I don't understand. Where in the law does it say that you "have" to purchase health insurance? Doesn't it say that if you do not purchase health insurance that you must then pay a fee for not having insurance? Put simply IMO you still have choice. Buy insurance or pay a fee; Yes?

Posted by: justonevoice | March 23, 2010 2:27 PM | Report abuse

This court would retry the Dred Scott case and come to the same verdict that that court found. Of course, it would be a 5-4 decision. Probably Clarence Thomas would write the majority opinion. As for the issue of the mandate, how is that different than Medicare, Social Security, or income tax? Participation in all is mandated. OOOppps. Maybe I shouldn't have mentioned them. Now Cuccinelli will spend Virginia's money challenging those mandates.

Posted by: shemtof | March 23, 2010 2:27 PM | Report abuse

The whole "opt out" argument is a red herring. Governments from federal to local provide lots of services that we cannot "opt out" of: police, military, fire departments, judicial system, infrastructure, foreign relations, food and drug standards, etc. They tax us to pay for it all, and we cannot refuse to pay taxes.
There are excellent reasons why there is no such thing as pay-as-you-go police or the right to opt out of national defense. Similar arguments can be made for health care. As long as we believe that it is wrong to refuse a critically ill or injured person treatment until they can prove that they can pay for it, we have the right to demand that everyone do her/his share to pay for that treatment. If we allow people to opt out from this, then why not let them opt out from police protection, food and drug standards, etc.? Only the most extreme libertarian would favour that, and I would like to see his face when the police present him with the bill first, before they are willing to work on finding, say, his kidnapped child...

Posted by: archaeoman | March 23, 2010 2:28 PM | Report abuse

np2j, it's allowed to fine people for not having health insurance for the same reason that it's allowed to penalize people for not being married, as our tax system currently does, or for not having children, or for not donating to charity, or for not spending money on education, etc. from jeffwacker

+++++++++++++++++++++++++++++++
Jeff, great points - I am single with no children and I don't own a home so I get no tax breaks except for charitable contributions. Married people with children don't get this - our payroll tax is a welfare tax. They claim the more in a family the more money they need to live on - but they made that decision. Yet as a single person, I have to pay higher taxes to support their family and their tax breaks. It is truly appauling that families choose to look the other way when they see the unfairness of our tax code because it helps them . They steal from the single person to pay for their family. If it was truly a payroll tax we would all pay the same percentage with no tax breaks for anyone - that would be fair.

Posted by: changeisneeded | March 23, 2010 2:28 PM | Report abuse

forgetthis,

Regarding your apple orchard hypothetical and the commerce clause:


In the case of Wickard v. Filburn, SCOTUS upheld a law against allowing people to grow their own wheat for personal consumption on the basis that doing so would impact the price of wheat.

These constitutional arguments are completely specious, and will only result in Republican AG's across the country wasting taxpayer dollars on futile political stunts.

But what else is new?

Posted by: Patrick_M | March 23, 2010 2:30 PM | Report abuse

~

This article must be linked to a right-wing-nut website. You can tell from the inability to spell 5-letter words correctly or use punctuation. And the frothing at the mouth.

What the uneducated, angry, white rural voters fail to understand is that we have universal coverage now -->

Anyone who goes to an emergency room receives treatment. You and I pay for it in our $1000 per month health insurance policies.

Under this new legislation, eventually everyone will pay something. Once that happens, maybe my insurance company won't be billed $5200 for an X-ray when that same X-ray costs $100 in Japan.

If only Americans were somewhat educated, we could have a rational discussion.

~

Posted by: DickeyFuller | March 23, 2010 2:32 PM | Report abuse

The corporations that the US Supreme Court says are People and can Vote already voted.

They gave the Health Care bill a big thumbs up in the stock market.

Whining is OVER.

Posted by: WillSeattle | March 23, 2010 2:34 PM | Report abuse

"Married people with children don't get this - our payroll tax is a welfare tax. They claim the more in a family the more money they need to live on - but they made that decision. Yet as a single person, I have to pay higher taxes to support their family and their tax breaks."

If you grew up in a family (and were not magically hatched from an egg transported from outer space) you have already enjoyed the benefit of that tax structure.

Posted by: Patrick_M | March 23, 2010 2:34 PM | Report abuse

Someone suggested we eliminate guns to save money on the health care costs of gunshot wounds. I think it would be better to eliminate criminals who do the shooting. I do not have a problem with the death penalty for shooting someone. The death penalty costs much less than prison, and for sure ,once dead the criminal will never hurt anyone again.
As far as accidental shootings are concerned they will always happen the same way as all accidents happen. People are careless. I suppose next you will want to eliminate cars because auto accidents cost us a lot more in health care dollars too. They cost much more than gunshot wounds. In any event, I do not own a gun and have never shot anyone. I do not know anyone who has ever shot anyone for any reason. I do however know plenty of people who are sick from unhealthy life styles that require constant and ongoing medications or other types of health care resources. Most unhealthy life style items mention are legal. Shooting people is not legal in most cases.

Posted by: nychap44 | March 23, 2010 2:34 PM | Report abuse

Republicans, especially have previously used this same law when they badly needed it. Now, how ironic they can't bear the taste of their own medicine! I am just baffled by their lack of shame in a face such blatant duplicity.

Posted by: tinozagor | March 23, 2010 2:36 PM | Report abuse

The emerging dynamic is that conservatives will convince themselves that, because they don't like the bill, it must somehow be unconstitutional. They will then treat the judiciary's adherence to 200 years of precedent as evidence of judicial activism.

Posted by: jeffwacker | March 23, 2010 2:40 PM | Report abuse

Most unhealthy life style items mention are legal. Shooting people is not legal in most cases.


Posted by: nychap44 | March 23, 2010 2:34 PM
++++++++++++++++++++++++++++++++++++

You have been elected "deemed" appointed to select those people who are going to shoot someone else.

Posted by: Maddogg | March 23, 2010 2:45 PM | Report abuse

Republicans are just cry babies and acting like children in their defeat at Waterloo.

They go crying to mommie like they have the kooties or something. God their sickening.

Posted by: Maddogg | March 23, 2010 2:50 PM | Report abuse

What an ignorant piece by Ezra Klien, and not just because I disagree with his vapid conclusions. And they were vapid. Wapo readers deserve better, as in a little "substance" rather than Ezra's graffiti. Get someone who actually understands the law for crying out loud.

I just lost one minute of my life reading that drivel and Ezra Klien and wapo owe it back.

Posted by: Homunculus | March 23, 2010 2:59 PM | Report abuse

Actually, there are still a lot of the conservative rank and file who still think they should be fighting it on the constitutionality of the "deem and pass" procedure. Seriously! They are that disconnected from reality.

Regardless of how any court case turns out, they have ready made spin. It's either an unconstitutional law or an activist judge. And when you say "No conservative who supports these legal challenges can complain about activist judges ever again" you are assuming that they shy away from hypocrisy. Why would you assume that? Last I heard, having hypocrisy pointed out by someone on the other side of a political issue was a point of pride for conservatives.

Posted by: BoringOrange | March 23, 2010 3:40 PM | Report abuse

Here's why any constitutional challenge will fail. The 'fine' in new law can be considered a tax, and everyone knows the federal government can tax for the common good. If the Supreme Court were to overturn the new law on the basis of the federal government abusing its power under the Commerce Clause of the Constitution, they would have to overturn other federal programs like Social Security and Medicare. There would be a revolution, if that were to happen.

Posted by: lecat | March 23, 2010 3:43 PM | Report abuse

I wonder if the Republicans have considered how much it will cost the government to have a defense. The government will have to defend the health bill and its passage- -I don't think attorneys are free. They really don't show concern about the cost of anything if they are willing to run up bills on something they can't win.

Posted by: karenswright1 | March 23, 2010 3:44 PM | Report abuse

"I can easily understand the State making me buy insurance that protects people I could harm - I cannot understand how the Government can force me to buy insurance (enter into a contract defined by the same State) for my personal "well being."

sally62,

I have to belive that you are smarter than this comment indicates.

If you have no insurance, and tomorrow you are disagnosed with a serious disease requiring surgery and ongoing medical intervention, chances are that you will rack up hundreds of thousands of dollares in unpaid medical bills, and then file a personal bankruptcy.

The court will then discharge you from your debts to all of the doctors and hospitals that provided treatment to you. Those providers will then increase the rates that they charge to others in order to recover the cost of your uninsured treatment.

So then others are forced to pay for your care. Your "personal well being" is not the issue. If you are responsible and fortunate enough to have insurance today, or have unlimited means to pay your doctors directly, you are already paying more than you should, because the cost of treating the uninsured is already being redistributed, albeit in the least efficient and least humane manner possible.

Posted by: Patrick_M | March 23, 2010 4:04 PM | Report abuse

In the unlikely event a challenge of the mandate did succeed, an easy fix would be to add medicare buy-in as an option on the exchanges. Suppose Congress had decided to do medicare for all, but, instead of taxing, charged premiums for everyone under 65. I don't see how that law would be challenged without proving too much, invalidating the original medicare as well. But if Congress has that power, then it has the power to that but also allow people to opt out of medicare and instead get private insurance. So it would have the power to obligate people either to buy into medicare or get private insurance.

Posted by: davidp3 | March 23, 2010 4:30 PM | Report abuse

Yadda yadda yadda.

Know what? Justice Thomas's wife is a tea partier. Scalia and Roberts at the very least were PO'd at Obama's snub at the State of the Union. If I were Obama, I'd be sorry I mouthed off...

I look forward to the day that these three plus Kennedy return the favor. I can't wait to see the look on Obama's smug, narcissistic, pseudo-intellectual face when the ruling comes down overturning his precious law.

It will be almost as priceless as the look on his face during his concession speech in 2012 =)

Posted by: segeny | March 23, 2010 4:51 PM | Report abuse

Declaratory and injunctive relief is appropriate and is available for Plaintiffs, as a tool of the Court to protect Plaintiffs from future abridgment of their rights.

Plaintiffs show a "real" or "immediate" threat to their rights being further abridged and that a substantial and immediate irreparable injury exists, See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502 (1974) that Plaintiffs' suit is not premature.

Posted by: kwoods2 | March 23, 2010 5:15 PM | Report abuse

"Plaintiffs show a "real" or "immediate" threat to their rights being further abridged and that a substantial and immediate irreparable injury exists..."


kwoods2,

I would not like to argue that health coverage for all, with government subsidies for those that cannot afford it themselves, or the alternative required payment of a nominal tax, meets the standard of "irreparable injury" or that it represents a "real or immediate threat to anyone's rights" -- or anything remotely close to those standards.

These lawsuits, should they ever materialize, are a complete waste of the taxpayers' money.

Posted by: Patrick_M | March 23, 2010 6:21 PM | Report abuse

Patrick_M wrote,
"kwoods2,

I would not like to argue that health coverage for all, with government subsidies for those that cannot afford it themselves, or the alternative required payment of a nominal tax, meets the standard of "irreparable injury" or that it represents a "real or immediate threat to anyone's rights" -- or anything remotely close to those standards.

These lawsuits, should they ever materialize, are a complete waste of the taxpayers' money."

kwoods 2 wrote"Plaintiffs show a "real" or "immediate" threat to their rights being further abridged and that a substantial and immediate irreparable injury exists..."
+++++++++++++++++++++++++++++++++++++++++++++++++++
Patrick_M,
To force anyone to buy something they do not wish or want is the taking of the individual's rights to commerce, and you know it.

Posted by: kwoods2 | March 23, 2010 7:34 PM | Report abuse

Maddogg wrote:

Q - Is gun ownership an individual mandate?

A - The constitution is clear here. The right of the "people". It does not say the right of the "person".
_________________________________________
The U.S. Supreme Court says you are incorrect:

"Justices Reject D.C. Ban On Handgun Ownership
5-4 Ruling Finds 1976 Law Incompatible With Second Amendment"

"The Supreme Court struck down the District of Columbia's ban on handgun possession yesterday and decided for the first time in the nation's history that the Second Amendment guarantees an individual's right to own a gun for self-defense." Washington Post June 27, 2008

Posted by: kwoods2 | March 23, 2010 7:49 PM | Report abuse

"To force anyone to buy something they do not wish or want is the taking of the individual's rights to commerce, and you know it."

kwoods2,

People are not forced to buy anything.

People are forced to pay a nominal tax, which will be waived in the event that they are not so moronic as to not carry health insurance.

It is a tax on morons.

If you want to be the lawyer that argues a violation of the commerce clause, bring along some ear plugs so you won't hear all the laughter that your dead-on-arrival arguments will inspire.

Posted by: Patrick_M | March 23, 2010 8:00 PM | Report abuse

TOMHERE:
"This argument is NOT about health care reform, this argument is about OBAMA. The conservative jacka**es in this nation will never settle for being governed by a NI**ER.
Plain and simple truth."

Since Obama's election I've vehemently argued against the opinion you state, but I'm almost ready to start agreeing with it.

Posted by: jonboinAR | March 23, 2010 10:17 PM | Report abuse

Posters and ed-ops can camouflage their remarks all they want, but the recently passed legislation is all about win-lose politics. The Dems won big time, the Repubs lost. This is great if you're for one or the other, but what about the rest of us? Pelosi needs to start listening to the dissenting side and stop all the chest pumping, pen raising foolishness. We are a nation terribly divided. If she really gave a sh.. about this country, she'd make an effort to stop the overt partisanship. I am really disappointed with her use of her very powerful office. Get us united again Mrs. Pelosi or at least make an effort.

Posted by: yankeei | March 24, 2010 6:35 PM | Report abuse

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