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Is health reform unconstitutional? Don't laugh.

President Obama’s signature is barely dry on the health-care bill, but already the legal challenges have begun. Most of them strike me as pretty implausible, with one exception: the complaint that Congress lacks the authority to impose an individual mandate to buy health insurance. To be sure, this claim, too, is a long shot, for reasons that Orin Kerr has articulated pretty well. But let me explain why I don’t think it’s a total laugher.

Congress can regulate activity pursuant to its constitutional power over commerce “among the several states.” The Supreme Court has struck down relatively few statutes as exceeding this authority. Not only that: The court has upheld such sweeping laws as federal limits on subsistence wheat farming and a federal ban on marijuana possession in states that allow “medical marijuana.” Basically, the court has found that even apparently localized activities have repercussions for national markets.

In recent years, however, the court has also struck down federal laws banning handguns within 1,000 feet of a school and permitting women to sue rapists in federal court. In those cases, the court attempted to set an outer limit on Congress’s Commerce Clause authority, warning that Congress cannot touch non-economic activities, or claim economic impacts that require “inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

Given that recent history, will the Supreme Court will simply duck this question out of deference to Congress -- as a number of pundits are predicting? True, federal statutes enjoy a presumption of constitutionality and, under normal circumstances, there has to be some disagreement among lower courts before the Supremes intervene. But we're talking about a court whose conservative majority just overturned a bipartisan campaign finance law, conferring free-speech rights on corporations for the first time. And, not too long before that, a different, liberal-led, majority of the same court struck down military tribunals that a broad bipartisan majority of Congress had created.

By contrast, health care passed with a narrow, partisan majority, and its popularity at the moment is at best unclear -- not that such considerations would ever penetrate the justices’ ivory tower, of course! During the election dispute of 2000, the legal professoriate chorused in near-perfect unison that the Supreme Court would never hear Bush v. Gore, and wouldn’t rule in favor of Bush if it did. We all know what happened to those predictions.

On the merits of the issue, I agree with health reform’s supporters that one’s decision not to buy health insurance has economic ripple effects. Basically, it turns you into a free-rider and that imposes costs on everyone else in the risk pool. As Prof. Erwin Chemerinsky recently put it: “There is no constitutionally protected freedom to be able to refuse to be insured or to avoid paying for the benefits provided.”

I’m less convinced, however, that eschewing insurance amounts to economic “activity.” The opponents have a point when they ask, “If Washington can require you to buy this product, what can’t it require you to buy/do?” (This was not an issue for Massachusetts’s individual mandate, by the way, because that was a state program and there has never been a question about an individual state’s authority to set such requirements.) Yes, being a free-rider may affect everyone else’s costs, but even if you shun insurance, you still have to pay for the services you use, at least if you’re non-indigent.

For many people, non-participation in the health-care risk pool is economically rational, and participation is not. For others, refusing health insurance might be a “statement” of sorts. There are a few Americans who want as little contact as possible with authority or the wider society. They prefer to live “off the grid.”

In other contexts, we applaud the exercise of the “right to be left alone.” Indeed, radical individualism, or, to be more precise, the possibility of radical individualism, is part of what’s always been different and, to many people, kinda special about America. As a practical matter, the scope for this kind of life has been diminishing for some time. The individual mandate limits it even more, in favor of social solidarity.

This may be a necessary change -- the price of living in a modern, urbanized society in which medical care has become both pervasive and expensive, far more pervasive and expensive than the framers of the Constitution, or the original Medicare statute, for that matter, ever imagined. The individual mandate may well be constitutional; the arguments in favor are indeed powerful. But it raises non-trivial issues of federal authority over the individual.

I would not be surprised if the Supreme Court wants to weigh in before it takes effect in 2014.

By Charles Lane  | March 24, 2010; 5:14 PM ET
Categories:  Lane  | Tags:  Charles Lane  
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Comments

While I support the idea for individual mandates I too wonder if it is constitutional. Right now I can make a case for either direction. Also, it appears the case is up for grabs. I am not sure if the Supreme Court will want to overturn this Congressional action though.

Posted by: grubbsbl | March 24, 2010 6:18 PM | Report abuse

I disagree with Professor Chemerinsky, the mandate is clearly unconstitutional. By his logic the Federal Government could mandate almost any action on the basis that failure to act may impose a cost on society. Also, I don't see how one could invoke the commerce clause where the affected individuals are not even engaging the the commerce supposedly covered. Finally, the most basic right that an individual has is the right to not participate, to be left alone.

Posted by: rexlex1 | March 24, 2010 6:30 PM | Report abuse

I like my right to privacy. How is this individual mandate not a violation of the right to privacy? Consider: This individual mandate says that we as private citizens have to do the private behavior of buying a certain type of private commodity coupled with this tax penalty for not engaging in this private behavior. I have seen some argue along the line that this is just the power to tax, in that government has the right to say, "OK, we're going to hit you with this tax, but if you engage in this private behavior that we tell you to do, then we'll wipe out the tax." I claim that this argument is subterfuge. Therefore, some questions: Why the subterfuge? Why not just tax us openly and in return give us a government service like oh, say, a strong public option? If this is held up as legal, then what's to keep government - including a future George Bush - from using the power to tax as a subterfuge for violating our right to privacy without end?

Posted by: Keefanda | March 24, 2010 7:52 PM | Report abuse

Wow! That was the best, most honest and objective legal analysis of the ObamaCare lawsuits that I've seen so far. I think you hit all the right points, cited all the relevant case law, and articulated why, even if ultimately unsuccessful, the challenges have a colorable argument against the mandate's constitutionality. How the courts will decide is anyone's guess (and anyone who claims to know with certainty one way or the other is blowing hot air), but it is an important constitutional issue and a legitimate argument can be made that the mandate exceeds the scope of the Commerce Clause.

Posted by: brianbrockmeyer | March 24, 2010 7:58 PM | Report abuse

When I used to live in DC I became quite familiar with the social emphasis of what I call the "Beehive culture", i.e. where the well-being, or even the convenience, of society often trumped the rights of the individual. Looks to me like the health care individual mandate is such a case. As an American, I will always choose the rights of the individual. If the courts say otherwise, we'll be much more like Europe or Japan, and we'll just drone on. There would be nothing which could not be mandated by congress for us to purchase, even it's just to get a better price if we're all in on the buy, whether we individually want it or not.

Posted by: gobeavs | March 24, 2010 9:30 PM | Report abuse

There is a strong argument that the commerce clause of the Constitution supports federal regulation as to the portability of health coverage from one state to another. That would certainly extend to federal regulation of insurance companies and banning denial of coverage for preexisting conditions.

As for the mandate that makes it all possible in actuarial and demographic terms, that is not visibly more unconstitutional than the income tax. It is however disgusting, a regressive tax, and a dangerous precedent. We suffer this so to prop up an insurance-based model that is inherently inefficient.

Challengers might want to think carefully, however, since the next resort, the so-called "socialized medicine" i.e. a single payer plan would be constitutionally unexceptionable.

Posted by: fzdybel | March 24, 2010 10:07 PM | Report abuse

"How is this individual mandate not a violation of the right to privacy?"

The founders never got around to that one. In terms of constitutional guarantees that would trump this legislation, you don't have a right to privacy. Not only that, you don't have any privacy either. Your every keystroke is the property of the Federal Government.

Posted by: fzdybel | March 24, 2010 10:16 PM | Report abuse


At least we know the difference between the Democrats & Republicans, the Democrats favor an active democracy where the needs of the people are met & problems in society are addressed through law or government...but the Republicans favor country-club, corporate dominated democracy where the law & government are mostly indifferent to the peoples' needs or challenges...where problems are met by begging for charity & government serves wealth creation by the elite investor class & the haves while the rest of us grumble & struggle to grab a little wealth which "trickles down" from the wealthy, elite, top 10% & corporate controlled government.

Posted by: Civilius | March 24, 2010 10:47 PM | Report abuse

Memo to Lane: While you're "waiting..for the supreme court to weigh in..."..you may want to take a look at the weigh-in offered by Ron Wyden. It gives states an opt-out for the federal program -INCLUDING THE INDIVIDUAL MANDATE. The stipulation for any opt out is that the state offer minimum standards as defined by the federal bill....Some State AG's (Idaho) offered the following caution before suing the feds via press conferences-- let's actually read and absorb the ENTIRE BILL FIRST! I understand that there are penalties for lawyers who file frivolous lawsuits. It would be a serious embarassment for a state's chief law enforsement official to be exposed to that charge.

Posted by: TruthHurts2 | March 24, 2010 11:55 PM | Report abuse

America was founded on individual liberal, responsibility, and opportunity, not Federal government dependence, activism and entitlements.

The question is whether we live in an America of counstitutionally limited Federal Government, or in an ObamaLand of unlimited, universal Federal Government power to make society in liberal's vision.
The founders distrusted and despised, and sought to severely limit central government.
* "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” - James Madison… Yet, today the States must ask the "permission" of the federal government to do almost anything important, and the Feds take whatever power they want. Clearly, then, something’s gone terribly wrong.
The former colonists were not eager to trade a despotic centralized Government across the ocean for one on their own continent.

Posted by: Amerman | March 25, 2010 12:05 AM | Report abuse

So I didn't hear any hue and cry about the constitutionality of states' madating purchase of automobile liability insurance?

Posted by: BBear1 | March 25, 2010 12:33 AM | Report abuse

The Health Insurance companies cannot carry the burden of people waiting until they are sick to buy health insurance. That would be like waiting until you have an accident to buy car insurance and expecting the insurance company to pay for the damage. Some 20 year olds may think they are healthy but what happens when they have an accident and break a leg or their back, can they pay the tab? Of course not, the taxpayers have to pay it. So, let's get real and know that no one is guaranteed to be healthy and accident free and therefore we all need to have insurance ... affordable insurance. It is as simple as that.

Posted by: paris1969 | March 25, 2010 12:34 AM | Report abuse

It our party and we'll laugh if we want to, Chuckles.

The chances of the SCOTUS sticking their noses in this hornets nest is slim and none. Go cry on Beck's shoulder, greed-head neo-con.

Posted by: st50taw | March 25, 2010 12:40 AM | Report abuse

So I didn't hear any hue and cry about the constitutionality of states' madating purchase of automobile liability insurance?

Posted by: BBear1 | March 25, 2010 12:33 AM | Report abuse

----------------------------------------
Too ancient a Huffington Post talking point.

If you want to drive a car, then you have to purchase automobile insurance. If you don't own an automobile, and don't want to drive, then you don't have to purchase insurance.

Compare with the new law. If you breathe, you must purchase a government directed health insurance policy. If you don't want to purchase a policy, then all you have to do is not breathe.

Good for four minutes or so, then there are problems.

Posted by: Paladin7b1 | March 25, 2010 12:54 AM | Report abuse

No one in this country truly lives "off the grid" because that is a privilege afforded only by the U.S. Constitution. You are a beneficiary of the U.S. Constitution whether you like it or not, and therefore you are subject to federal laws. If an "off the grid" person were harassed (vandalism, public denunciation) in a particular community for not participating in the predominant religion, what legal redress does that person have? That's right, the U.S. Constitution. No one has this protection in, say, Iran. Non-Muslims are routinely harassed and even denied education in that country. Living "off the grid" is a myth.

Posted by: scsmits | March 25, 2010 1:07 AM | Report abuse

hah.

Posted by: daphne5 | March 25, 2010 1:17 AM | Report abuse

Lane, just as Jon Stewart noted that Glenn Beck should apologize for wasting our time at the end of every broadcast, you should end the heading of everything you write with, "Don't Laugh."

Posted by: secretaryofspite | March 25, 2010 1:25 AM | Report abuse

According to section 1501 of the bill, you can be penalized if you go 1 month without coverage. So, if you are out of work for 1 month and can't afford COBRA you will pay a fine. Also, you can have health insurance, if that coverage doesn't meet the requirements of HHS, you pay a fine. So, if you chose high deductible insurance, this will not meet HHS minimum coverage requirements so you will be penalized.

Posted by: GoodandWelfare | March 25, 2010 1:27 AM | Report abuse

"The chances of the SCOTUS sticking their noses in this hornets nest is slim and none"

I wouldn't be so sure about that. They might be a little more eager after the prez called them out at the state of the union. I won't be surprised to see the court rule against the mandate. Recent precedent re: interstate commerce clause applies to economic activity, i.e consumption. Not consuming a good would there for not be considered economic activity. Besides, the mandate is not only way to solve the coverage problem. Also, since the fine under the mandate would be a direct tax, even fining someone for not having insurance is unconstitutional. Also, the individual mandate is not the only way to get the encourage universal coverage. Congress could use it's tax and spend powers, raise taxes, and create a tax credit for those with health insurance. But I guess we all know that congress doesn't have the stones to do that.

Posted by: GoodandWelfare | March 25, 2010 1:49 AM | Report abuse

I don't know, is torture unconstitutional? Let's forget about that for a moment, and ask ourselves what is right and wrong.

Torture is wrong. Healthcare is right.

Lane won't sway me one way or the other.

Posted by: kurthunt | March 25, 2010 2:25 AM | Report abuse

Carrying a handgun near a school has no economic impact. It does not affect interstate commerce, and, therefore, the federal government cannot regulate that activity under the Commerce Clause. In contrast, healthcare is 1/6 of our entire economy. The economic impact of health insurance is gigantic, and the effect on interstate commerce is gigantic. So, health insurance can be regulated under the Commerce Clause.

This situation is nearly identical to social security insurance , which we are all required to buy if we choose to work. The difference is that social security is 100% government run, while healthcare insurance is privately run under close government regulation. So the Commerce-Clause lawsuits don't make any legal sense.
Of course, the conservative crazies at the Supreme Court can make up their own rules, but Kennedy isn't going to go along with the 4 crazies.

Posted by: Renu1 | March 25, 2010 3:24 AM | Report abuse

In calculating premiums, if insurers are now prevented from taking into account actuarially whether a particular individual likely will need medical care, they need to be able to avoid the risk of free riders. If hospitals also now are prevented from charging more to patients with insurance to make up for treating patients without insurance, the hospital will suffer economically unless everyone it treats has insurance. To avoid insurers and hospitals from being put into an economically unsound position, all people potentially needing medical treatment from physicians and hospitals need to be paying into the system. Congress reasonably implements those realities by requiring everyone to be part of the medical care payment system since it is most reasonable to believe that sooner or later, everyone likely will need to use physicians and hospitals and everyone will not likely be able to pay the full and high costs of the medical treatment without having insurance. That a small number of people might be able to afford expensive care is not a reasonable basis for allowing everyone to decide whether or not to be part of the system.
So, perhaps the writer might like to revise his opinion.

Posted by: BacktobasicsRob | March 25, 2010 3:36 AM | Report abuse

The individual mandate, if affirmed, would surely help out on any future economics crisis. Next time, all the federal government will need to do is pass a law that we must buy a GM car, bingo, GM isn't going bankrupt.

Posted by: termiteavenger | March 25, 2010 3:46 AM | Report abuse

"...you don't have a right to privacy."

Google "9th Amendment" with "right to privacy" and see all that case law that you no doubt disagree with. If the 9th Amendment is not to be a bag of hot air, then it covers natural rights retained by the people like the right to privacy. I see no reason why this mandate cannot be challenged under this natural right protected by the 9th Amendment using all that case law. Besides: This fine is put forth as a universal tax to be "tax credited out of"? Yeah, right. Then, again, why not for this "universal tax" give in return a government service like oh, say, a strong public option?

Posted by: Keefanda | March 25, 2010 4:13 AM | Report abuse

I don't see why anyone would laugh at this, the latest in a series of blatant federal power grabs starting with income tax in 1913, that are, prima facie, unconstitutional.

Posted by: ddaly7 | March 25, 2010 5:19 AM | Report abuse

"This situation is nearly identical to social security insurance"

The situation is nothing like SS.

Social Security is a payroll tax and the government simply takes that tax and provides certain prescribed benefits.

But there is no tax here, the government is forcing you to buy something "for your own good" from a private party for benefits that aren't really defined.

What if the government forced you to buy fish on friday because fish was good for you and that by not paying for it you are harming fishermen. Seems to me under your logic, there is an economic impact to this, so that would be legal as well. You're really arguing the federal government can do any damned thing it wants to do under the commerce clause.

Posted by: Ombudsman1 | March 25, 2010 5:27 AM | Report abuse

"In calculating premiums, if insurers are now prevented from taking into account actuarially whether a particular individual likely will need medical care, they need to be able to avoid the risk of free riders."

That's a backwards law and merely points out how poorly thought out the bill is. You're basically stripping everyone of their rights in the name of protecting insurance company's business.

Posted by: Ombudsman1 | March 25, 2010 5:30 AM | Report abuse

The reason that this Court might look for an opportunity to strike down this new law is NOT because it is Constitutionally any more exceptional than many others that were approved in the past, but because of one simple reason- this Court is an activist, far-right Court. It looks for a way to interfere in the workings of our politics, and finds a rationale to do so after the fact.

Did ANYONE expect the Court to accept the Bush v. Gore case and decide the 2000 election for us? Did ANYONE expect the Court to jump hoops and find a way to strike down key elements of the Campaign Finance Law, to allow unlimited and unregulated "freedom of speech" to corporations (not people, CORPORATIONS!) in the midst of a campaign? There is no limit to the mischief this Court will seek to accomplish if given the chance. And the majority of this Court doesn't care about the "law" one single bit. Everything we learned in law school about the institutional desire of the High Court to respect stare decisis and not interfere unless the law required it to do so is now an utter lie.

Posted by: dyinglikeflies | March 25, 2010 5:31 AM | Report abuse

Let's pretend health insurance is instead internet cables (or any future cable needed to provide a new service).

The government decides to mandate everyone to pay a private company to run wires to their house from the next house. If anyone refused, the rest of us would have to pay to run wires past that person's house to the next house, and it is not fair to impose that cost on society, otherwise the system would fail to work because the wires would not be connected. As the system is used for interstate commerce, it is clearly within the rights of the government to make such a mandate.

What is different about that example and the individual mandate to purchase health insurance? How about if it were maintainance of roads, or even rail roads, or life insurance to cover all debts so society is not required to cover debts upon death?

Posted by: RichardCA | March 25, 2010 5:32 AM | Report abuse

What I find ironic about the entire process is the path we went down with with HIPAA and we continue in that direction with the bill. Under the current health care privacy act,one can be fined or do jail time as a provider for breaking patient confidentiality , which I think is good, but at the same time government crowed about confidentiality laws it made it easier for government and non government entities to have access
to your health care data, just not your friends, employers, and relatives.
Privacy is privacy and under the current health reform private information will be even easier for outside entities to collect, its like give the people a sense of privacy but then take it away big time, kind of a sleight of hand

Posted by: hoover2 | March 25, 2010 6:59 AM | Report abuse

This is not hard: the individual mandate takes the form of a tax. Congress has the authority to levy taxes, even in specific ways, such as the "Get health insurance or you pay this" tax.

If the individual mandate were to be struck down, it would have nothing to do with the Constitution, and everything to do with the conservatism of five activist judges.

Posted by: Anonymous_Coward | March 25, 2010 7:20 AM | Report abuse

The only thing unconstitutional at this time is the entire Republican Party. Don't think they won't pay at the polls.

They speak for the hardcore 30% of the American people who supported GW Bush up until his last day. There is not a thinking, informed person in this group of extremists. The GOP has no other constituency.

Posted by: walden1 | March 25, 2010 7:50 AM | Report abuse

Check out if constitutional under how states and nations regulated commerce with each other before and after the adoption of the constitution:

http://federalistblog.us/2006/08/busting_congress_interstate_commerce_myth.html

Posted by: JASinAZ | March 25, 2010 7:59 AM | Report abuse

This activist conservative supreme court will want to stick its nose where it doesnt belong to protect us from harms that dont exist. They already "elected" a phony president Bush using equal protection principles that dont apply anywhere else. Lawless court.

Posted by: paulnolan97 | March 25, 2010 8:09 AM | Report abuse

The fallacy of the constitutional attack is that there is a mandate, when there is not. There is a relatively small tax imposed on people who do not buy insurance. It is capped at a little more than $2000, less that two months of medical insurance premiums. Factually, the courts will never regard that as a mandate (because it isn't) and will defer to Congress' taxing power.

BTW, I opposed the HC bill for several reasons, one of which is that it doesn't contain a mandate, pure and simple. If I were in my 20's to 40's again, the bill gives me an incentive to cancel my health insurance b/c the tax is so low and I could get medical insurance whenever I get sick. That is a ridiculous scheme, but that is exactly what the Dems have done.

Posted by: Steve851 | March 25, 2010 8:22 AM | Report abuse

If you really think that you are losing your right to privacy because of this mandate to purchase health insurance, then I ask you (and all the Republican so-called leaders) what you thought was going on when George Bush invaded your e-mail, telephone calls, and homes without passing any laws at all? However, it seems to me that there are alternatives if you want to repeal the individual mandate. One, repeal the law that states that hospital ERs and doctors and nurses at a hospital must accept all patients even if they have no insurance. Then hospitals will not have unpaid bills and the rest of us will not make up the difference through higher premiums. Two, repeal Medicaid and the Children's Health Plans, so that taxpayers do not have to pay for those of you who have no insurance. Nor will we have to pay for the children of those of you who irresponsibly have children you can't afford to have because you have no insurance. Three, disallow medical bills in bankruptcies for those who had no insurance (not those whose insurance companies refused to pay) so that providers are not stuck with these debts and end up losing money. Just the way taxes, alimony and student loans cannot be written off through bankruptcies, those without insurance with medical bills will have to pay them off eventually. There are other ways of protecting those of us who do purchase insurance from your right to privacy.

Posted by: qrsi | March 25, 2010 8:27 AM | Report abuse

The author brushes up against the truth but doesn't see it. The Feds cannot force an individual to purchase a product. They do have the power NOT to pay for the uninsured's services when needed. In fact it is this mechanism which is missing, which is at the root of the medical cost problem. You would be greatly surprised how people will take care of themselves if the nanny state got out of the way. The remaining population who truly needed help could easily be handled by private charities.

The Feds (apparently) also have the authority to tax everyone in every state and then supply national healthcare, which is Obama and other's clearly stated goal in their own words, unedited. The republicans need to ram this unconstitutional part of the bill down the Dems throats until they choke and admit their true intentions.

Posted by: nonlocal1 | March 25, 2010 8:32 AM | Report abuse

SIMPLY PUT: NO! It's legal.

Posted by: crrobin | March 25, 2010 8:33 AM | Report abuse

One of the things I find fascinating about this is evident from the comparison, mentioned above, between health insurance funding and Social Security.

The argument coming from the right (of all places) is that it's OK to tax everyone and provide a service, but it's not OK to bypass the government and require that we all pay a private company to provide a given service.

Perhaps I am missing something - but I thought the idea behind a prime Republican position is that we all should be trusting in the ability of our capitalistic society to provide more efficient services, and this kind of "farming out" of government services is a good thing?

Perhaps we should have satisfied folks by taxing everyone, then provided vouchers that can be used for any accredited insurer.

Posted by: iamweaver | March 25, 2010 8:35 AM | Report abuse

"So I didn't hear any hue and cry about the constitutionality of states' madating purchase of automobile liability insurance?"

Posted by: BBear1

________
BBear1, that is because the states do not require you to buy it. If you drive a car you have to but if you do not own or drive a car you do not have to buy it. No one forces you to buy car insurance if you ride the bus.Everyone in America will be forced to buy this crap from the federal gov, there is no other choice.

Posted by: m11618 | March 25, 2010 8:39 AM | Report abuse

As I understand it, the Scalia wing of the Court opposes Roe v. Wade because they feel that the Constitution provided no right to an abortion. In their view, the only Constitutional rights are those specifically and explicitly provided.

So under their view, would not the tax on those not purchasing health insurance be Constitutional because the Constitution does not specifically and explicitly provide a right not to be taxed in such a manner?

Posted by: Garak | March 25, 2010 8:41 AM | Report abuse

And, if SOTUS were to declare the current legislation unconstitutional, I guess the Congress would just be backed into the public option after all.

Conservatives ought to be careful what they wish for--unless they just want to deny health care to all Americans as a matter of "principle".

Talk about the party of "No".

Posted by: yenta1 | March 25, 2010 8:42 AM | Report abuse

Is forcing Americans to buy health insurance constitutional?

We seem to have agreed that it's constitutional to force Americans to buy car, flood and homeowners insurance. How is this different?

Posted by: paul6554 | March 25, 2010 8:43 AM | Report abuse

... As an American, I will always choose the rights of the individual. ...

Posted by: gobeavs

So as a member of a group you choose the rights of an individual.

We "individuals" love our groups. Conservative, republicans, liberals, democrats, Catholics, protestants, Jewish, blacks, yellow, Caucasian, NRA, ACLU, Tea Party, Dallas Cowboy fans, American mileage member, IEEE, Slovak, German ...

When will the Courts hear this case. When the line item veto passed, the Court refused to hear the immediate appeal. No one had "standing" until they could show they were damaged in some way by the law. Up jumped Rudy G. when some NY pork was line item vetoed out.

Who and when will someone qualify as having standing and under what reason?

Posted by: James10 | March 25, 2010 8:47 AM | Report abuse

The purchase of flood Insurance is mandated by the federal government (through FEMA / Dept of Homland Security).

Uneven health insurance laws from state to state could cause migrations impacting the nation as a whole. That is why the federal government has a right to make this law.

Posted by: paul6554 | March 25, 2010 8:50 AM | Report abuse

Paul6554 - It's different because I can choose not to drive, choose not to own a home or choose to not live in a flood zone.

The only way to avoid buying ObamaCare is to choose not to breathe.

Posted by: TroikaPhoenix37 | March 25, 2010 8:51 AM | Report abuse

Why are the libs concerned with "activist judges" on the USSC but turn a blind eye to them elsewhere?

And to the original article: it's pretty telling that the author equates not wanting to rely upon the largess of the state as "living off the grid." That used to be called personal responsibility.

Posted by: damulljr | March 25, 2010 8:55 AM | Report abuse

You use the wrong reasoning to argue whether the HCR law is constitutional. It is unconstitutional simply because perceived public opinion is against it. Since interpretation of what the laws of the land mean (rather than what they say) is based on perceived public opinion, the HCR law actually means no healthcare reform. The Supreme Court was admonished by the President on national TV for deciding in favor of what the law says, they won't make that mistake again.

Posted by: rpatoh | March 25, 2010 8:56 AM | Report abuse

To force citizens to buy anything they don't need or want from another organization is clearly unconstitutional. The language of the Tenth Amendment is quite clear:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

No such power to mandate purchase of any product or service exists in the Consititution. Hence the tenth amendment applies, and the individual mandate is unconstitutional.

Of course, this simple clear meaning will not prevent armies of lawyers from doing everything to obfuscate, confuse and distract the court and the people. And in today's hyperpartisan environment, with demogogues in Congress and the Oval Office, that a divided court will make the clearly right decision is far from assured.

If the court does not due its duty, then the battle will only continue in the political arena for years to come, just as slavery did in the 19th century, and abortion continues to now.

Paraphrasing our Dear Leader's words: I don't know about the political impact, but I know that it is right for the court to strike down this unconstitutional mandate.

Posted by: blackmage | March 25, 2010 8:56 AM | Report abuse

I know who could give us advice on Constitutional rights, BUSH AND CHENEY.
I still remember their answer. SO

Posted by: shipfreakbo214 | March 25, 2010 9:00 AM | Report abuse

I thank you for your intuitive article. Factually, if the Supreme Court rendered as unconstitutional the mandatory purchase of Health Care under Obama's plan, it will be forced to overturn mandatory auto insurance, seat belt laws, motorcycle helmet laws where required, etc. There are many constitutionally controversial mandates currently in place. Precedent is an important and highly followed legal parameter. I think the right's attempts to sue are merely political posturing. They know their efforts are futile except to keep the issue before voters hoping to win back control of both the Congress and the Senate next November.

Posted by: ARNIESHERR | March 25, 2010 9:07 AM | Report abuse

It would be argued in the alternative as constitutional under the taxation clause. There is no technical mandate to buy insurance. There is a tax if you don't have insurance. The taxing clause allows any taxation for the public good. It would not be difficult to show that this bill is for the public good. (I am not saying it is an objective public good, but it is easy to make that arugment on one side). The Commerce Clause is the easy argument, but the backup argument under the taxation clause would be extremely hard to rule against. Check the Daily Beast for details on this.

Posted by: Noodles3 | March 25, 2010 9:08 AM | Report abuse

Insightful, fair minded analysis. Thanks for reminding us that Congress' powers under the Constitution are not unlimited, and that courts might find this health reform bill goes too far.

Posted by: junomoneta88 | March 25, 2010 9:10 AM | Report abuse

If this is legal, then Congress can MANDATE ANY action, which THEY deem in the best interest of the people. NOT THEM of course, since they are EXEMPTED from Obamacare!!
How is that legal!!

Posted by: morphy | March 25, 2010 9:14 AM | Report abuse

Also, after reading thruogh some comments, some more thoughts. The Federal Government can absolutely force you to purchase things. They force you to give money to poor people who need medicine (Medicaid) and seniors who need financial assistance (social security). You can't opt out of payroll taxes, last time I checked. You are forced to purchase streetlights and new roads through your local taxes. And it appears the cost of health care reform will be borne by upper income people with a payroll tax and dividend tax. All of these are considered part of the public good. Is the universal mandate or whatever you want to call it part of the public good? That's the question for serious debate.

Posted by: Noodles3 | March 25, 2010 9:15 AM | Report abuse


Speaking of "total laughter"...a crummy little string of words from someone who thinks he's a swell writer (which he is't)

(rather than just another ZIONIST TOADY on WaPo's editorial board, which he is)


Posted by: whistling | March 25, 2010 9:20 AM | Report abuse

"...one’s decision not to buy health insurance has economic ripple effects. Basically, it turns you into a free-rider and that imposes costs on everyone else in the risk pool..."

- - - -

This argument only holds water if people who don't decide to buy insurance are free loaders.

Hello? Ever heard of self-insurance? See http://en.wikipedia.org/wiki/Self_insurance

Thankfully I live in Virginia, so I won't have to buy Obama's health insurance plan. I will either self-insure, buy managed health care, or join a health discount plan.

Posted by: dmarney | March 25, 2010 9:22 AM | Report abuse

I think this is much ado about nothing. We are forced to buy a government provided healthcare plan in Medicare. This applies to everybody in the Country. I can't chose not to pay medicare taxes.

Posted by: ProudLib | March 25, 2010 9:22 AM | Report abuse


The Lanes of the world, neocons first,
have their insurance

and Just CANNOT SEE useing American taxpayer money for insurance for poor Americans who can't afford it.
Netanyahoo could use that money for more wars and more settlements!

And Americans aren't even Israelis!

Posted by: whistling | March 25, 2010 9:24 AM | Report abuse

Dumbo- anything can have an economic effect if you think hard enough. for example- i didn't buy breakfst this morning & now the waitress at the diner will not get her tip so now she can't buy gas to drive to another state, etc., etc. any big mouth congressman can always make an argument to regulate soemthing of other. don't believe me, just look at other countries that already have universal health care.

Posted by: tillman2 | March 25, 2010 9:26 AM | Report abuse

The federal government already forces us to pay for lots of goods and services through income, Social Security, and Medicare taxes, including the cost of running the government itself and all the services it provides through the federal Departments, Agencies, and other parts of the federal bureaucracy, services such as killing civilians in other countries in the wars in Iraq and Afghanistan, killing people in New Orleans after Katrina by giving them trailers with formaldehyde in them, and killing American children and adults by allowing health insurance companies to refuse coverage for them because they are already sick when they try to buy health insurance or, if they already have health insurance, dropping their insurance if they get sick.

Posted by: foofoofoo | March 25, 2010 9:27 AM | Report abuse

THE FEDERAL GOVERNMENT HAS THE RIGHT TO TAX. If you do not buy/have health insurance, you will be TAXED. The IRS will enforce this provision. Those without health insurance cost everyone money once they inevitably become ill. They are sicker by the time they seek help and use emergency rooms for primary care. This is where you fall into the sphere of the Commerce Clause. The budgets of both state & federal governments are very much affected by the costs involved with uninsured citizens.

Posted by: foyelady | March 25, 2010 9:33 AM | Report abuse

Sorry, society has no rights. Only individuals have rights. No groups has more rights than the individuals that make it up. Rights are not additive, 100 people do not more rights than 1 person. Individual liberty is supreme. Saying its ok to infringe on the rights of an individual, that has not infringed on another individuals rights, in favor of so called "rights of society" is unethical, immoral & wrong.

Just because the thugs in the federal government do something over and over, doesn't make it right.

Those of you that want the FedGov to tax everyone to provide healthcare for all, would you approach me individually, threaten me with the use of force, and demand I pay for your healthcare? Then why are you ok with asking the government to do exactly that for you?

Posted by: BillTuttle | March 25, 2010 9:41 AM | Report abuse

We need to remember that even though the term "unconstitutional" has a nasty-sounding ring to it, while "constitutional" sounds all right and proper, the fact is that whether something is or is not constitutional does not actually make it moral or immoral, right or wrong. After all, it was once perfectly constitutional to deny women the right to vote or to own African slaves until an amendment changed the constitutionality of such acts. Likewise, it was unconstitutional to have a simple drink during Prohibition or to cast certain votes if you were under the age of 21. Yet in each case, the rightness or wrongness of these actions was not really determined by their constitutionality. I do feel it is outright wrong for the federal government to insist that merely because you are a citizen you should have to buy a particular product (or choose from a government list of products) and it will remain wrong even if the courts find it "constitutional."

Posted by: ToughChoices | March 25, 2010 9:41 AM | Report abuse

Seems to me that if it is Constitutional for the federal government to grant tax deductions for mortgage interest in order to encourage homw ownership, it can impose a tax to encourage health care insurance. Both encourage a particular economic behavior through the tax code, which has been done since the founding.

I see no big legal issue as far as the mandate goes.

Posted by: tunkefer | March 25, 2010 9:41 AM | Report abuse

There is one point in which the author is wrong - if a person does not have health care coverage, the impact is, actually, direct. Since hospitals (and many doctors) will not turn down patients, the cost of their care is reflected in higher premiums for the rest of us. That is a rather direct cost.

Another possibility might be possible. As a pastor, I can opt out of Social Security during a "window," soon after my ordination. Once opting out, I cannot opt back in. Perhaps those who are opposed to having any form of health insurance could do the same. However, they would have to pay all of their own costs, should they need the services of a doctor or hospital and, once out, they could not opt back in, in effect, sponging off the rest of us. That would settle any constitutional requirement.

Posted by: garoth | March 25, 2010 9:42 AM | Report abuse

Those who beleive that if you drive a car you must PURCHASE auto insurance are just dead wrong. There are several states that allow you to self-insure. If you don't have an accident for 10 years you don't pay a single dime and may even earn interest on the monies you set aside to self insure. For instance every vehicle owned or leased by the state of Illinois is self insured (no premiums paid) Also the car I drive for work (140,000 miles in two years) is self insured by the company I work for. If I had the monies (two kids in college) I would self insure my personal vehicle. Get your facts straight and besides you are talking about a state mandate not a federal mandate. States have this power. The federal government does not.

Posted by: proman | March 25, 2010 9:44 AM | Report abuse

The most interesting legal challange to this bill does not end in the supreme court, not directly anyhow. Following passage of the sedition act, madison and jefferson crafted the virginia and kentucky resolutions. In those resolutions jefferson and madison laid out the case that each state enters the union voluntarily and as an individual sovereign, and that each state may determine on its own, independent of the supreme court, whether the federal government exceeded its constitutional authority when adopting laws affecting the state. Each state may, according to madison and jefferson nullify a federal statute it deems exceeds the feds constitutional authority. Both kentucky and virginia nullified the sedition act. John adams was furious but congress agreed that states had this right and the resolutions ruled the day and the sedition act was not the law in virginia or kentucky. Similarly after the civil rights act was passed several southern states threatened to nullify it. Johnson feared the courts would uphold the right of the states to do so. He threatened to send the military if any state did not comply. Finally, the controlled substances act lists marijuana as a schedule one narcotic. A schedule one means the drug is highly addictive and without medicinal value. State medical marijuana laws, would appear to violate the supremacy clause of the constitution as those laws are contrary to existing federal law...states have effectively nullified the controlled substances act. Some states have simple determined that the states, not the fed, have the constitutional authority to determine what is used for medicine in their state. The courts dodged the question but have consistently refused to limit the states right to pass laws contrary to the csa. The court has effectively sanctioned nullification of the csa. Currently there are 30 states ready to pass some form of nullification legislation on some or all of the healthcare bill.

Posted by: PSOG | March 25, 2010 9:48 AM | Report abuse

Those of you that think it's just fine for the FedGov to demand that you purchase something to support a right, would you be ok with them mandating that you purchase and keep a loaded gun to support your 2nd amendment rights? It does make us all safer as crime is reduced - statistics show this time and time again.

Initiation of force is wrong. And if I don't choose to buy the health care mandated by the FedGov, you approve of them initiating force against me.

Posted by: BillTuttle | March 25, 2010 9:50 AM | Report abuse

BillTuttle, I respect your passionate devotion to concepts of individual liberty, but i must respectful disagree. Congress has broad taxing power. You can disagree with the purposes of those taxes, but they can then levy on your goods and possessions. Or throw you in jail. By force. That's what happened to Henry David Thoreau when he refused to pay taxes to support the Mexican American War. The government threw him in jail. You may find it unethical, immoral and wrong, as Thoreau did, but the government can still seize your home, your car, your valuables, and your freedom as a consequence.

Posted by: Noodles3 | March 25, 2010 9:51 AM | Report abuse

It's ironic that most illegal immigrants come to this country because they want to participate in all that it offers, and the right says they have no place because they weren't born here. I believe those illegals have a better understanding of what it means to be an American and appreciate the privileges that come with that than many natural born citizens who take those things for granted. I am not in favor of violating our immigration laws. However, for all of us natural born citizens who won the genetic lottery in being lucky enough to have been born in this country, there is an obligation that goes with that lucky event. Complaining that illegal immigrants have no right to participate in this country because they weren't born here, while at the same time claiming that being born here gives us the right as citizens to opt out of participating in the common good makes no sense.

Posted by: grantmh | March 25, 2010 9:52 AM | Report abuse

Folks! You continue to equate not having health insurance with not paying your way. While that does seem to be the liberal view of the world, many of us pay our own way.

Also, many of you seem to think that because we are against the confiscation of our money by the FedGov, that we are against helping out those that need it. Why are liberals so narrow minded? Why is government the only answer for you? Do you personally choose not to help anyone unless forced to by the FedGov?

Posted by: BillTuttle | March 25, 2010 9:56 AM | Report abuse

I never said that the FedGov couldn't or wouldn't use force against those that don't bend to their will. I asked if you approved of this? It is beyond cowardly to hide behind the thieves at the FedGov and ask them to steal for you.

Posted by: BillTuttle | March 25, 2010 9:58 AM | Report abuse

The Constitution states that an idividual mandate cannot be repealed. Case Closed.

Latest Gallup poll taken Tuesday after bill signing. 49% yea, 40% nay. That is not an equal division.

Posted by: lbeck49 | March 25, 2010 10:01 AM | Report abuse

I agree there is wiggle room for the 5 justices to attempt to undo the biggest legislative overhaul in 60 years, but if they do there will be a FLOOD of lawsuits regarding other items that the conservatives do support. It will be very difficult for them to strike down this and not eliminate some of their own pet laws.

This will get interesting without a doubt.

Posted by: theobserver4 | March 25, 2010 10:02 AM | Report abuse

If the Supreme Court had been doing it's job, about 80 percent (or more) of what the FedGov does would have been struck down. There are no real checks and balances in our system. It's like a three-handed monster.

Posted by: BillTuttle | March 25, 2010 10:07 AM | Report abuse

I see a lot of people comparing laws like auto insurance, seatbelts, motorcycle helmets and the like to the health care law. The major difference is this; health care law is federal where the others are state laws. States have the ability and right under the constitution to do a lot of things that the federal government can't. Also the state laws only occur if you do something. Don't like auto insurance, don't drive a car. Seatbelts, Don't ride in the front seat. Helmets, don't drive or ride a motorcycle. If you don't do these things there is no fine for not doing them. Health care you get the fine for not doing something.

Posted by: rchayes | March 25, 2010 10:07 AM | Report abuse

It doesn't matter if you pay your own way. Many people don't take social security payments, despite having paid in. Many do not take medicare, they would rather stay on a program of health benefits extended from their job. The government makes that determination. I'm sure you are for helping people, but what about those people too proud to take a handout. What about those people who are not fortunate enough to have such benefactors.

I support the Federal government using the police power. I don't know if unviersal healthcare is a public good. But I don't think it is for individual citizens to decide what is the public good. That's why we have representative government, ostensibly to reflect the will of the people.

Posted by: Noodles3 | March 25, 2010 10:07 AM | Report abuse

For those who insist that they will pay their own way for health care, are you willing to post, say, a $250,000 bond per person to guarantee that you will in fact do so?

Posted by: tunkefer | March 25, 2010 10:08 AM | Report abuse

So I didn't hear any hue and cry about the constitutionality of states' madating purchase of automobile liability insurance?

Posted by: BBear1 | March 25, 2010 12:33 AM | Report abuse
-- - - - - - - - - - - - - - - - - - - - -
Driving is a priviledge! Being insured is required to drive.
Now go back to your Mother's basement!

Posted by: thornegp2626 | March 25, 2010 10:09 AM | Report abuse

Considering how our feckless leader snubbed the SCOTUS at the state of the union, and considering that Justice Thomas's wife is a tea party activist, I'd say a lil judicial payback is in order =)

Perhaps Bambi will learn to shut his piehole once in a while lol.

Posted by: segeny | March 25, 2010 10:11 AM | Report abuse

Why is that individuals that can, but do not purchase health insurance, believe that, and even demand, that when they are injured or sick and have to be admmitted to a hospital, they receive top notch services, regardless of costs to the hospital and doctors; and will sue if they do not receive it. Someone has to pay for these uninsured services, and often long-term after care services. Guess who pays, the taxpayer in resulting higer insurance premiums and co-pays. Further, as we all know, members of Congress have the best health care insurance in the world, PAID FOR WITH TAXPAYER DOLLARS. Yet not one Congress person voting against universal health care stated that their health insurance, which many will receive for life, was too expensive for us tax payers. And while protecting the unborn is laudible, do not they need quality health care when born. What hypocrisy

Posted by: farmerm1 | March 25, 2010 10:11 AM | Report abuse

I'm a Republican (law student) who opposed passage of this bill on policy grounds. But it seems very clearly constitutional to me under the Commerce Clause or Congress's Tax & Spend powers.

My understanding is that the mandate is critical to a significant component of this comprehensive commercial regulatory scheme. (Raich) Without it the scheme would unravel -- at least as designed.

The Democrats are endeavoring to distribute the costs of covering those with preexisting conditions among those without such conditions (subsidize coverage of preexisting conditions). By declaring that insurers cover those with poor health at below an actuarially fair rate, insurers have to recover the losses they suffer from covering the unhealthy somewhere else (the healthy). So they will charge the healthy above the competitive rate for someone with their risks. This makes purchasing health insurance increasingly unattractive to the healthy as the price rises substantially above the "actuarially fair" price. Particularly those who are more readily able to tolerate absorbing lumpy health care costs -- the rich -- will opt not to buy health insurance. As the healthy leave the pool of the insured, possessing insurance becomes increasingly unattractive for all, and eventually the middle class opt not to buy health insurance. And when the healthy middle class are gone from the pool of the insured, we're back to square one.

Also -- by mandating the purchase of insurance, consumers will be engaging in commercial activity.

On top of that, Congress has the power to tax in order to incentivize various activities/behaviors that Congress finds desirable. Not having insurance isn't criminalized, it's simply taxed. Not paying your taxes is a crime, which is a constitutional punishment. So long as the underlying tax is constitutional the fact that you could go to jail for not buying insurance is immaterial. You would be going to jail for not paying your taxes.

Posted by: TheThinkingMansMan | March 25, 2010 10:13 AM | Report abuse

It seems to me that even if the courts determined the mandate is unconstitutional, the congress could easily adjust the language of the legistlation to get around this. Instead of a "mandate" required an individual to buy insurance, why couldn't they structure it as a tax instead of a "mandate"? In any case, I'm sure the congress could weasel-word their legislation to make it palatable to the court. Personally, I reject the mandate because I'm concerned about the slippery slope; there are political activists out there right now drafting legislation to "mandate" our purchase of everything from electric cars to solar panels.

Posted by: JohnR22 | March 25, 2010 10:15 AM | Report abuse

Think about what I am going to say here.

This is a federal system. Fifty states and one overarching Federal government. This is what the founders created. If the Federal government cannot impose a mandate on the states or individual citizens, then there can be no draft in war time, no Federal Income tax, no prohibitions against illegal drugs, and many other items that we think are natural everyday, with the possible exception of the income tax, which many would rather not pay anyway. If the Supreme court majority, republican ideologues all, vote to overturn the mandate in health care as not constitutional, they will have basically done away with the need for the Federal government, including themselves. It is that simple. That is what is at stake, intellectually if the mandate is found to be unconstitutional. We cannot say we mandate that you give us your sons and daughters for war and that's constitutional and also say that a mandate for all to have health insurance is not constitutional. Either the Federal government has the power to mandate to the states and citizens in an overarching, rationalizing manner or it does not. Before all of you constitutional scholars say that the constitution has wording about providing for the common defense, it says nothing about conscription and until the U.S. Civil War, there was no conscription, though we did have wars, defensive and offensive prior to that time. To do away with the mandate is to dissolve the Union. That would leave fifty separate nations, where there is now only one. I thought this was settled in 1865. Is this what we want? Think about it. NO, REALLY THINK ABOUT IT!!!!

Posted by: robertmerry | March 25, 2010 10:16 AM | Report abuse

Umm -- anyone making reference to an argument containing "case law" in this piece is deluded or not reading. There is no mention of a single court decision relevant to the matter at hand. Most of what Mr. Lane offers is not germane to any discussion of the constitutionality of a statute. The only thing that would overturn this law would be activist justices on the Supreme Court. That Mr. Lane is openly advocating for such a thing shows his disrespect for democracy.

Posted by: jjhare | March 25, 2010 10:16 AM | Report abuse

Excellent analysis thinking mans man. Someone stayed awake in Con Law! It's not terribly different from Social Security. The working pay money to those who no longer work. That is the nature of the current system, and the problem of many who want to privatize social security. In the alternative system, it would be savings system, rather than the current transfer system. The nhealth care bill uses private insurance companies as an active actor in a health care transfer system.

Posted by: Noodles3 | March 25, 2010 10:18 AM | Report abuse

grantmh: I must challenge your absurd statement that "It's ironic that most illegal immigrants come to this country because they want to participate in all that it offers, and the right says they have no place because they weren't born here."

You are confusing illegal immigrants with all immigrants. We oppose ILLEGAL immigration because the illegal immigrants decided to disobey and disregard our laws--ALL immigrants were born somewhere other than here, but only the illegal immigrants decided that they don't have to follow the normal procedure for becoming a legal resident or even becoming a citizen. They have no right to just sneak into our country any more than they have a right to sneak into your house (which, incidentally, many of them do, especially in the souithwest where many US citizens live in fear of waking up inb the middle of the night to find strangers in their house ...)

Posted by: ToughChoices | March 25, 2010 10:19 AM | Report abuse

wow, nearly all of these comments are respectful and thoughtful. must be a first for the wapo.com! Can I add that if someone declines to purchase health insurance after the new rules are implemented, I hope they refuse any medical treatment that they can't personally pay for out of pocket. I think they would agree that having other taxpayers contribute to their care would be too much government intrusion into their lives.

Posted by: acpinono | March 25, 2010 10:24 AM | Report abuse

The government should be more accomodating though. If say, Virginia, wants to opt out of the individual mandate, that should be allowed. They would then as a consequence lose all medicaid payments from the feds, all medicare payments from the feds and all medical related grants and funding to hospitals (research, assistance, whatever). Further, Virginia residents should not be able to receive federally subsidized cares in hospitals outside Virigina. If you're gonna opt out, opt all the way out. (I personally believe this would lower the costs, because the obesity levels in some of the states who have filed lawsuits are some of the highest in the country, and obesity carries with it a giant medical price tag)

Posted by: Noodles3 | March 25, 2010 10:30 AM | Report abuse

http://calorielab.com/news/2008/07/02/fattest-states-2008/

http://abcnews.go.com/Politics/HealthCare/states-launch-legal-challenge-health-care-law/story?id=10178015

3 of the top 5 fattest states have sued. In a spirit of full disclosure, then thinnest state, colorado, also sued, but they and Utah are the only ones in the thinnest 10.

Posted by: Noodles3 | March 25, 2010 10:35 AM | Report abuse

One of my strongest arguments against the new bill is not simply the mandate but the fact that the federal government has now created a strong icnentive for my employer to drop my healthcare coverage--because now i can buy my insurance from the government-approved plans on the exchanges. Of coruse, that will also mean that I will have to pay 100 percent of the cost of those premiums (versus just a portion of those costs now, since my employer pays the bulk as a benefit in order to attract good employees). Thus, my personal healthcare coists will likely double or even triple just to pay for the new exchnage premiums ... perhaps THAT is how ObamaCare plans to reduce overall healthcare spending--because once I've paid all that extra money just to have insurance I won't be able to afford to actually go see a doctor anymore! Forget about constitutionality--this plan is just plain STUPID!!

Posted by: ToughChoices | March 25, 2010 10:38 AM | Report abuse

The legislation is clearly unconstitutional and will require an amendment, as was done when the federal income tax was inflicted on us.

Posted by: Jerzy | March 25, 2010 10:38 AM | Report abuse

To quote John McLaughlin, "Wrong!"

Social Security and Medicare are taxes imposed on working. The taxes are then used to fund pensions and health care for the elderly.

This bill is different. It imposes a tax CONTINGENT on a citizen buying a product. This is not "uniform application under the law," so it fails as a tax. It also has nothing to do with interstate commerce - taxing someone for doing NOTHING is not commerce.

Dies in 11th Circuit. Upheld by SCOTUS 5-4.

BTW ... maybe it's time the SCOTUS moved out of Washington ... to avoid the stench.

Posted by: mabarnes66 | March 25, 2010 10:39 AM | Report abuse

The simple fact is that if this is constitutional the Government can make you buy a Chevy, a new house or even tell where to work. We will have turned the Constitution on its head. And the libs will be joyful for there would be no reason the Government could not set salaries for anyone engaged in interestate commerce.

Posted by: jdonner2 | March 25, 2010 10:39 AM | Report abuse

Tough Choices, there are significant tax breaks built into the bill designed to combat that possibility. While it is still possible that it may occur, it may be a short sighted move by your employer, actually resulting in increased taxes to be paid by your employer by virtue of failing to take advantage of tax breaks and penalties for dropping coverage.

Posted by: Noodles3 | March 25, 2010 10:41 AM | Report abuse

One more thing. Those who are citing their right to privacy as a reason why the mandate is not constitutional must have been asleep for since 1972. The ongoing fight over abortion rights is about the right to privacy. It is still at issue that you actually have a right to privacy and it is not specifically mentioned in the Constitution. The most ardent opponent of the right to privacy, is Antonin Scalia. So if you're a republican or a teabagger and you are hanging your hat on that idea, you will lose. This is not to say that the Supremes cannot come up with some other intellectual dodge to find the mandate unconstitutional. However, read my first post to see what happens if they do that.

Posted by: robertmerry | March 25, 2010 10:43 AM | Report abuse

Is it not an amazing FACT that Senator McCain,Mitt Romney,& many republicans & insurance companies supported the compulsory insurance provison that all of the republican Attorney Generals that are now wasting the public monies to kill something that this country has to have for the health care system to survive for all. Young people under 30 do not need health care( they think). But, when they have a car wreck, & have bills in the 100's of thousands, who pays? Those with insurance & the taxpayers. When an illegal or a druggie goes to the E R for treatment, & has no insurance, who pays? Insurance companies & taxpayers.So, as Senator McCain, Tommy Thompson, & Mitt all knew(but some may have forgotten) the provision these A G's are attacking are republican ideas & good ones.

Posted by: tlrasnic | March 25, 2010 10:45 AM | Report abuse

robertmerry ... let's REALLY think about what you've said there .. so: in his ideologically driven desire to be the new FDR/JFK/LBJ all rolled into one, Obama has created a plan that we MUST accept otherwise we THREATEN the entire UNION!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Perhaps Mom and Apple Pie are doomed as well if we don't accept Obama's mandate !!!!!!!!!!!! Perhaps it's the Proverbial "Mandate" of Heaven that Chinese emperors always sought?????????????????
Hmm ... or perhaps you're being just a bit hyperbolic there? If the Supreme Coiurt strikes down the mandate--as I hope they will--the only loser will be overreaching, everexpanding government and the bureaucrats who feed off our hard-earned tax money. Putting government back in its proper place--as the servants of the people, NOT the masters--can only help the Republic return to the principles of individual freedom and personal responsibility that made us the most prosperous and successful human experiment in self-government in the history of the world (and THAT is NOT being hyperbolic)

Posted by: ToughChoices | March 25, 2010 10:47 AM | Report abuse

This bill take away our freedom of choice.

Most people are too ignorant to see this because of our failing education system, except for the people who compair auto insurance to health insurance, they're just morons.

Posted by: OldHippie | March 25, 2010 10:47 AM | Report abuse

Noodles3--thanks for the comment. can you point me to what sections in the law might cover this scenario? Or do you know what key words to seacrh on that might direct me to the relevant section? I do hope you're correct but I'd like to find out definitively.

Posted by: ToughChoices | March 25, 2010 10:50 AM | Report abuse

The constitutionality issues around taxation and commerce in this bill are valid. If the bill had imposed a tax on ALL taxpayers for "healthcare", then allowed an income deduction or tax credit for any coverage you BUY, then IMHO, the constitutional limits are met.

This bill gets it backward, and that will be where it falls, if SCOTUS has any courage!

Posted by: Ramblwrk68 | March 25, 2010 10:58 AM | Report abuse

Lane. One thing your are missing is that Obama seriously embarrassed the Court with his denunciation of their ruling on campaign finance at his State of The Union Address. I believe that the conservative members of the court and now anxious to get back at Obama, and might use this challenge to Obamacare to get even.

Posted by: mike85 | March 25, 2010 10:58 AM | Report abuse

Someone asked for case law.

- objection that state cannot be required to carry out administration of federal initiative: New York v United States (1992) 505 US 144 {interesting language of note: "crossed the line distinguishing encouragement from coercion"}

- objection that not buying insurance is not commerce: Lopez (1995) {"To uphold the Government's contentions here, we have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."}

- objection that tax is unconstitutional as unapportioned direct tax: definitions, Bowers v Kerbaugh-Empire Co. (1926) {"It was not the purpose or effect of [16th] amendment to bring any new subject within the taxing power."}

Posted by: RichardCA | March 25, 2010 11:02 AM | Report abuse

Tough Choices, I believe this link is a pretty solid analysis of those tax credits. The focus of my comment was the retroactive credit for small businesses. I haven't analyzed some of the longer term things, but this bill is bound to amended again and again and again.

http://www.taxfoundation.org/news/show/26037.html

Posted by: Noodles3 | March 25, 2010 11:02 AM | Report abuse

grantmh: I must challenge your absurd statement that "It's ironic that most illegal immigrants come to this country because they want to participate in all that it offers, and the right says they have no place because they weren't born here."

You are confusing illegal immigrants with all immigrants. We oppose ILLEGAL immigration because the illegal immigrants decided to disobey and disregard our laws--ALL immigrants were born somewhere other than here, but only the illegal immigrants decided that they don't have to follow the normal procedure for becoming a legal resident or even becoming a citizen. They have no right to just sneak into our country any more than they have a right to sneak into your house (which, incidentally, many of them do, especially in the souithwest where many US citizens live in fear of waking up inb the middle of the night to find strangers in their house ...)

---------

I fully understand the difference between, illegal and illegal immigrants. The point is moot. The reason they come here, legally, or illegally, is they want to enjoy what America has to offer. The point I was making is that they are willing to risk life and limb to come here, so they most have a rather significant appreciation for what this country has to offer. By comparison, citizens who are citizens by birth have done nothing to EARN the right to be here. They simply are here, and are automatically afforded all the privileges of citizenship through no effort of their own. Those privileges come with a moral obligation to participate in providing for the common welfare of the nation. Claiming you have the right to decline participation because you're entitled to do so as an American citizen according to the constitution, demonstrates a rather perverse interpretation of citizenship.

Posted by: grantmh | March 25, 2010 11:02 AM | Report abuse

This may be a little off-base, as I am not a constitutional expert by any means, but I can think of another example of a federal mandate that leaves it up to the states to manage... driver's licenses and/or identification cards. Correct me if I'm wrong, but didn't the Patriot Act require all US Citizens to obtain a federally approved driver's license, or, if an individual does not intend to drive, then that individual must then obtain an "official" identification card? And there is a fee (tax) for obtaining that card... Opinions everyone?

Posted by: PeterPamZ | March 25, 2010 11:08 AM | Report abuse

1. The chances that the SCOTUS will avoid the case out of deference or controversy is ZERO. The left likes to tell themselves a lot of self-soothing myths.
2. If I get sick and go the hospital, I pay my bill. I am therefore not a free rider. I am "off the grid" in an abstract sense, and nobody has any right or valid interests in compelling me to make my payments through the insurance system.
3. Non-activity is not activity, and you cannot argue that basic fact away. Don't be surprised if the wheat farm ruling is overthrown.

Posted by: G418 | March 25, 2010 11:10 AM | Report abuse

grantmh: The problem is that for centuries ouf country prospered because it was based on the concept of free men and women freely choosing to work together for the common good--THAT idea created the greatest society the world has ever known. But for too long now, the government has been directing and even coercing people toward its version of the "common good" which too often is radically different from what large pluralities or even the majority of citizens (as is the case with the new healthcare law) actually sees as the common good. Right now, most Americans see the need to rebuild the economy and generate more private-sector jobs as the common good--yet Obama is doing everything he can to undermine the private sector and hamstring its ability to help the nation recover. Even his "reform" actually does nothing to help reduce the legacy healthcare costs of GM, for instance, because GM will still be bound by its union-negotiated healthcare contracts. So how does this help the common good?

Posted by: ToughChoices | March 25, 2010 11:14 AM | Report abuse

Actually, Scotus didn't "confer free-speech rights on corporations." Corporations, like individuals, enjoy the God-goven right to free speech that the First Amendment protects from government interference. What the Court did was strike down a campaign-finance law that infringed on that right.

Posted by: JMosesBrowning | March 25, 2010 11:17 AM | Report abuse

PeterPamZ: I think the Patriot Act merely required that all driver's licenses become those special "Real ID" licenses ... but it did NOPT require that all citizens get such a license, or any other kind of license ... driving has always been considered a privilege rather thana right and therefore can be more heavily controlled by the government. If you choose not to drive, you do not need a driver's license (it's just convenient to have one for ID purposes ...)

Posted by: ToughChoices | March 25, 2010 11:19 AM | Report abuse


Sure didn't take the 'Victim Party' long to play the VICTIM did it?? They were above listening to the American people; they sold their votes; they played the constituents as fools; they made decisions based on the perpetuation of their own power ---- and now, JUST WHAT DO THEY EXPECT??

Do not condone violence, but a lot of this nonsense that we are now seeing was SEWN BY OBAMA, PELOSI, AND REID!! Their months of arrogance; 'Bertha Better than You's'; dictatorial edicts; daily doses of press briefings by 'MR. PERFECT" -- Robert Gibbs; way too many teleprompter demonstrations by PRESIDENT PERFECT OBAMA; and bare knuckles, Chicago type enforcement TURNED THE VAST MAJORITY OF AMERICANS OFF -- and candidly, engendered anger! Their acolytes are now paying the price!! Obama will probably go down as one of the most divisive presidents in our history. Very sad!

There are a lot of lessons for all politicians in the despicable state we find ourselves. A wise thing for future presidents: DO NOT SELECT CABINET MEMBERS WHO CHEAT ON THEIR TAXES, and CALL AMERICANS COWARDS! One sure does not build confidence or credibility that way -- AND PLEASE, refrain from placing the IRS in charge of policing HEALTH CARE!! This legislation was not thought through!

Posted by: wheeljc | March 25, 2010 11:20 AM | Report abuse

"

Is forcing Americans to buy health insurance constitutional?

We seem to have agreed that it's constitutional to force Americans to buy car, flood and homeowners insurance. How is this different?

Posted by: paul6554 | March 25, 2010 8:43 AM"

_______________________________

It's different for obvious reasons.

Purchasing insurance for the items you mentioned above is accepted as being legitimately compulsory because said items were initially purchased by means of a free and voluntary exchange between the individual and the seller.

Step 1: Purchase the thing. Step 2: Purchase the legally required insurance for the thing.

The compulsory requirement to purchase car insurance applies only to those individuals who have purchased a car (which they ostensibly intend to drive on the roads ) from a car manufacturer. The initial purchase of the car is a voluntary exchange between private entities in a free market: car buyer and car seller.

The purchase of insurance attains its compulsory character only after the individual has made the initial purchase of the product.

Step 1: Purchase the thing. Step 2: Purchase the legally required insurance for the thing. This applies to the initial purchase of a car or a house and the subsequent insurance requirements which come afterward.

The health insurance mandate lacks the element of an initial purchase. There is no initial entry point into realm of "commerce".

If I have never had health insurance, do not intend to have health insurance, or simply do not want health insurance, it's the same as if I never owned a car, never intend to own a car, or simply never want to drive a car.

Posted by: williakj | March 25, 2010 11:22 AM | Report abuse

Thanks, Noodles3 ... I will have to check out that link.

Posted by: ToughChoices | March 25, 2010 11:23 AM | Report abuse

The Supreme Court has lost its moral authority to rule on this issue either way.

Posted by: HillRat | March 25, 2010 11:28 AM | Report abuse

ToughChoices, thanks for your response.
And I understand what you're saying about driving priveleges and I agree completely, we do not have the "right" to drive, however I do know that here in Florida if you not intend to get a driver's license, you must then obtain a "Real ID" identification card (sorry, I know that's redundant lol) I had thought that was a Patriot Act requirement, but that may be a state mandate.

Posted by: PeterPamZ | March 25, 2010 11:28 AM | Report abuse

Noodles3: The link you provided seems to discuss the House's healthcare proposals--but those were abadoned in favor of the Senate version (which the House had to accept as is and then try to change in the reconciliation bill). Does anyone know of the Senate version or reconciled version contain similar provisions regarding tax breaks and penalties for employers who keep/dump their healthcare coverage?

Posted by: ToughChoices | March 25, 2010 11:29 AM | Report abuse

It's neither constitutional nor unconstitutional until the Supreme Court issues a ruling.

I look forward to reading and learning about various aspects of the legal issues as we move forward. (I will look for informed analysis in the Economist, and not on blog sites. The Economist, by the way, that left-wing communist rag, supported passage of the health care reform bill.) Whatever the court decides, I am fine with it. If this law is ruled unconstitutional, we will end up with single-payer not too far down the road of life, and I'd prefer that anyway.

Posted by: guitar1 | March 25, 2010 11:39 AM | Report abuse

As Prof. Erwin Chemerinsky recently put it: “There is no constitutionally protected freedom to be able to refuse to be insured or to avoid paying for the benefits provided.”
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Sure there is. It's called the 9th Amendment.

Posted by: BradG | March 25, 2010 11:40 AM | Report abuse

grantmh: The problem is that for centuries ouf country prospered because it was based on the concept of free men and women freely choosing to work together for the common good--THAT idea created the greatest society the world has ever known. But for too long now, the government has been directing and even coercing people toward its version of the "common good" which too often is radically different from what large pluralities or even the majority of citizens (as is the case with the new healthcare law) actually sees as the common good. Right now, most Americans see the need to rebuild the economy and generate more private-sector jobs as the common good--yet Obama is doing everything he can to undermine the private sector and hamstring its ability to help the nation recover. Even his "reform" actually does nothing to help reduce the legacy healthcare costs of GM, for instance, because GM will still be bound by its union-negotiated healthcare contracts. So how does this help the common good?
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The "government" is run by elected officials. If you don't like what they are doing, vote. However, sometimes in a representative democracy your vote will be the minority vote. That doesn't represent a loss of liberty, or government coersion. There will never be a perfect anything, including a perfect healthcare system. I don't see how anything regarding existing conditions of GM's insurance structure serves to nullify any of the greater issues surrounding healthcare insurance for the nation as a whole.

"So how does this help the common good?"

Removing denial of coverage at the very time you get sick, even if you've been paying for insurance out of your own pocket all along; removing denial because of pre-existing conditions; reducing strain, misused services, and cost of people without insurance seeking treatment for non-ER related services in Emergency rooms, providing for the healthcare of children regardless of the wealth of their guardians; providing a mechanism to dampen the rise of healthcare cost through larger pools and greater distributed risk. The latter is the lynchpin to all the others, hence the need for participation by all.

Posted by: grantmh | March 25, 2010 11:43 AM | Report abuse

http://www.washingtonpost.com/wp-dyn/content/graphic/2010/03/19/GR2010031905407.html

2000 per employee penalty for large companies not offering coverage.

http://www.businesspundit.com/what-health-care-reform-means-for-small-business/

Sorry for the earlier screw up. This info appears current.

Posted by: Noodles3 | March 25, 2010 11:43 AM | Report abuse

"How is this individual mandate not a violation of the right to privacy?"

The founders never got around to that one. In terms of constitutional guarantees that would trump this legislation, you don't have a right to privacy. Not only that, you don't have any privacy either. Your every keystroke is the property of the Federal Government.
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Not true. Your right to privacy is covered mostly but the 9th and 10th Amendments as well as 4th amendment.

In the Constitution all power is retained by the people except those powers that are explicitly given to the Government. Our country was founded on the idea of a limited government not a limited people.

Posted by: BradG | March 25, 2010 11:48 AM | Report abuse

it actually is just a tax. there is no mandated anything, just a tax consequence of not buying insurance, designed to incentivize you to do it. If you pay the penalty, end of story.

It is like auto insurance, because you cannot choose never to have a heart attack and stick me with your bill for the care the hospital cannot, under law, deny you whether you can pay or not. repeal that law, maybe you have an argument.

and if it's thrown out, it may not be a problem anyway. it's not intended to be a revenue source, unlike tobacco taxes, it's intended to get people to buy. we could probably live without it altogether if people do, in fact, buy. and there are about a zillion ways to accomplish the same thing that everyone agrees would be constitutional. like just tax everyone for the cost of ER care, and credit back that tax if you have insurance. etc.

Posted by: JoeT1 | March 25, 2010 11:48 AM | Report abuse

I find it surprising that anyone can find any rational argument that the individual mandate has any constitutional foundation, when it so clearly has none at all. The federal government has absolutely NO authority to compel private citizens to purchase any product from a private company. There is no analogy to car insurance, social security, medicare or anything else.

I realize the liberals have personal policy reasons to want this bill to be law, but it's not even close. I think when it gets to the Supreme Court, the individual mandate will fall 6-3. 7-2 if there's a little more intellectual honesty in the court's leftist partisans. The court can't uphold the mandate, because it is facially unconstitutional - they would lose their legitimacy if they upheld it.

Posted by: _BSH | March 25, 2010 12:01 PM | Report abuse

I'm with _BSH. The comparison of the individual mandate to car insurance makes no sense.

Posted by: williakj | March 25, 2010 12:04 PM | Report abuse

Opponents of the bill should be wary of getting it struck on this ground. While I agree it is an open question whether the government can require an individual to purchase a service from a private company, it is clear the government can tax you for government run services. Think social security, etc.

So if the opponents get a judgment that the individual mandate is unconstitutional, the next best step for the government (assuming congress can pass it) would be the full-on universal single payer program.

Posted by: jonstewart1 | March 25, 2010 12:07 PM | Report abuse

grantmh: Your "linchpin" is part of the whole problem with thius law (indeed, the whole basis of the constuitional question). Most people want to do something about healthcare costs and something about the uninsured and soemthing about preexisting conditions--but what we've been told is that you can't do ANYTHING about any of thoise issues UNLESS we do EVERYTHING: force people to buy gvoernment-approved insurance, subsidize those who (supposedly) cannot pay for it themselves, etc., etc. ... and YET even after all this, the plan does NOTHING to reduce GM's or other large employers' costs (which was originally one of the justifications for the whole effort). Thus, the whole enterprise becomes nothing but an expansion of Big Government at the expense of employers and middle-class citizens (the vast majority of whom have insurance and are relatively content with that coverage) without doing anything about controlling overall costs .. thus: it is hardly in the public good.

Posted by: ToughChoices | March 25, 2010 12:19 PM | Report abuse

jonstewart1, people opposing the constitutionality of the individual mandate often fall into a group that is fine with single-payer or a tax credit for purchasing insurance, but not okay with the precedent set by allowing the federal government the power to compel economic activity that is entirely tangential to the government.

It is the precedent, not the specific action. The government would effectively have the power to tell you what you must do on virtually everything, leaving very few freedoms to the individual. The government would also have the power to use the force of law to compel people to hand their money to someone else who the people do not elect, effectively causing taxation without representation.

Posted by: RichardCA | March 25, 2010 12:19 PM | Report abuse

The question of whether this is constitutional or not is laughable. Of course it is unconstitutional. John Marshall would have laughed such a law out of court.

The question of whether the Court will find it unconstitutional, whether it wants to get involved in a messy partisan political fight is an altogether different question and one that has to do with American exceptionalism.

In other words, will the Court be so disgusted by this power grab-- a grab that turns our cradle of liberty into just another european-style semi-authoritarian, malaise-stricken, doubt-filled, guilt-ridden state-- that it rejects it, or will they simply slink away and leave it up to the people, who are losing more and more of their rights to statist big-government types every day, to repeal and reverse?

It's more likely the latter that will occur, but it wouldn't surprise me if Kennedy and the Conservative four do strike it down for the legislative atrocity that it is.

Posted by: theduke89 | March 25, 2010 12:23 PM | Report abuse

jonstewart1 wrote: "So if the opponents get a judgment that the individual mandate is unconstitutional, the next best step for the government (assuming congress can pass it) would be the full-on universal single payer program."

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The only reason this passed is because the Senate briefly had a filibuster proof majority. The chances of that happening in the future, given the public outrage at this bill, are slim. It's a good bet Republicans will always be able to stop a single payer plan in the Senate. He11, they may even be in the majority in BOTH Houses, come next January.

Posted by: theduke89 | March 25, 2010 12:29 PM | Report abuse

By that logic, the US government could require everyone to buy a General Motors car say every four years. Clearly, if GM went out of business there would be economic impacts across many states, and would also impact the US government as owners of GM.

The average cost over four years would not be onerous compared to the cost of health insurance.

I rest your case.

Posted by: mzarowitz99 | March 25, 2010 12:48 PM | Report abuse

robertmerry:

Your general observations are accurate but the problem with your analysis is that there are separate and distinct constitutional grants of power to Congress to draft soldiers (raise an army), levy an income tax (16th Amendment)and ban drugs (Commerce Power).

Traditionally, "police powers" (health, safety, welfare, morals, etc) have been left to the states. Congress’s power has expanded greatly as interstate commerce has become more connected—which is understandable as the founders probably couldn’t have conceived of the information superhighways let alone asphalt ones. Now I am not a Glenn Beck wing nut who thinks everything is unconstitutional that I don’t agree with. However, what I am saying is that Congress can't simply act in a certain way because it acts powerfully in a bunch of discrete other ways. To say that would indeed trample on the Constitution.

Posted by: middleamerica1 | March 25, 2010 12:56 PM | Report abuse

The Justices are always sensitive to political winds and the fact that this measure was enacted by the thinest, strict partisan margins in both Houses will be a factor -- as would a sizable voter repudiation of its supporters next November at the polls, well before th Court would hear the case.

On the Constitutional merits, Lane leaves out a cricial point: it's not just that the law compels individuals to engage in an economic act against their will; it compels them to enter into a contract with another private party (an insurance company) against their will to make possible a government policy goal. In that sense, it is exactly the same as a law that compelled people to buy Chevrolets to support the policy goal of keeping GM alive.

But here's the twist: there is little, if any, doubt that the law could compel us all to pay a tax (graduated or not) in exchange for universal membership in a government-run health care insurance plan, a la Medicare. A tax is a tax and the feds can impose taxes. They can also run health care insurance systems and ban private insurers. The question is: can they force me to do business with a private insurer under penalty of law (i.e., a fine)? Almost certainly not. That said, Justice Kennedy may see fit to let the matter go in the feds' favor rather than stick it to the political branches. Then again, he may stick it to them if he sees the country really doesn't want this to happen.

Posted by: jeburke242 | March 25, 2010 1:05 PM | Report abuse

The government should be more accomodating though. If say, Virginia, wants to opt out of the individual mandate, that should be allowed. They would then as a consequence lose all medicaid payments from the feds, all medicare payments from the feds and all medical related grants and funding to hospitals (research, assistance, whatever). Further, Virginia residents should not be able to receive federally subsidized cares in hospitals outside Virigina. If you're gonna opt out, opt all the way out. (I personally believe this would lower the costs, because the obesity levels in some of the states who have filed lawsuits are some of the highest in the country, and obesity carries with it a giant medical price tag)

Posted by: Noodles3

**************************************************************

Everyone in NOVA will hop the border to Maryland even if the employing companies don't. Hospitals will also close up shop and bring the doctors with them.

The first state to fully opt out would commit economic suicide; which would make the rednecks in Richmond happy and everyone else in Virginia miserable. You obviously know that this very condition would keep all 50 states from opting out.

Good idea :)

Posted by: theobserver4 | March 25, 2010 1:11 PM | Report abuse

Jeburke, you make a great point. But there's always caveats. Say you don't want to do business with the insurer. ok, fine. But what if a contingency of your medical license issued by the state is that you do business with all insurers. You may ask, why would my state do that? Perhaps the federal government would mandate such a condition in order to receive certain grants and subsidies. They do this with federal highway funding, by making the drinking age, a state issue, a contingency of federal aid. Louisiana looked into lowering the drinking age but determined the loss of the highway funding was too much. You may potentially have a sitatuation where your state allows more freedom to doctors, but they might lose a ton of money from the feds.

Posted by: Noodles3 | March 25, 2010 1:15 PM | Report abuse

By that logic, the US government could require everyone to buy a General Motors car say every four years. Clearly, if GM went out of business there would be economic impacts across many states, and would also impact the US government as owners of GM.

The average cost over four years would not be onerous compared to the cost of health insurance.

I rest your case.
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Sigh.

Should the bill pass, you will be required to purchase insurance (or pay a fine), but who you buy that insurance from is not stipulated, that will be whomever you chose. Big difference.

Posted by: grantmh | March 25, 2010 1:17 PM | Report abuse

Thanks Observer. That is the nature of the beast. Do what the Feds want or commit economic suicide. By doing this, the Feds can avoid real conflicts over constitutionality. They tell the states, do whatever you want...at your own risk. Best not to bite the hand that feeds you!

Posted by: Noodles3 | March 25, 2010 1:18 PM | Report abuse

There is an additional problem with the law. Health insurance is purchased on a strictly intra state basis. Many people urged Congress to outlaw the prohibition on interstate sales of health insurance but Congress declined to do so. Assuming arguendo (as the lawyers say) that the decision not to purchase insurance is viewed as commerce, it is, by defintion, not interstate commerce.

Posted by: dlcr | March 25, 2010 1:21 PM | Report abuse

Has this occurred to anyone? All persons have a 5th Amendment right to refuse medical or other healthcare services, as a matter of due process. See eg Cruzan v. Dir., MDH, 497 U.S. 261, 278-279(1990). Requiring one to insure the purchase of services he legally can and does refuse is arbitrary, irrational, and thus a deprivation of due process. Whether or not expanding health care availability may be a compelling government interest sufficient to justify the deprivation is irrelevant. That is because a mandate for insurance is not narrowly tailored to achieve that interest; taxes are.

Posted by: bogden1 | March 25, 2010 1:25 PM | Report abuse

Like the matter isn't complicated enough, let me add my spin. Medicare, Medicaid, Social Security, federal education funding, the Veterans Affairs health system, the federal highway system, Civil Right Act, OSHA, EPA, RDA, USDA, and the G.I. Bill, are either examples of federal over-reaching or they are not. Remember under Medicare, citizens are mandated to buy into a government program which provides coverage after they retire. Under the present HCR citizens are required (through punitive taxation) to buy into private insurance plans before they retire.

A twist, suppose HCR's mandate to buy into private insurance plans is found unconstitutional. What's Congress' constitutional fix? Since Medicare's government administration of retirement health care is constitutional (Medicare has weathered constitutional challenges), Congress' fall back position is a public option. Let's get serious. Does anyone really believe that the a conservative SCOTUS is going to throw out mandated private insurance in favor of a mandated public option? Does anyone believe that these "constitutional" challenges are credible, that they are not merely political posturing?

Posted by: Reesh | March 25, 2010 1:35 PM | Report abuse

The most annoying point of this entire debate is not providing healthcare for the poor, or getting rid of pre-existing conditions. Instead the point that galls me the most is that my family has bitten the bullet to pay for insurance for decades. In the meantime, many of my peers opted to use that money for new furniture or a vacation or any of the intangible disposable and desirable perq's of modern life. Even now, I teach some kids who are the scions of wealth whose parents choose not to buy health insurance unless they need it. Through my life, I have never been wealthy. In fact the argument could be made that as a teacher, I am barely middle class. But I knew enough to get insurance to cover the off chance of serious illness or injury. For my family to pay, it takes out of income that is not acquired easily. But I could point out people in my neighborhood who go without and pocket the money. While that is their choice, NOW I will have to pay more to subsidize those who CHOSE to go without and now find themselves injured or ill. I am not without compassion, but I do believe charity begins at home. And the Democrats DO NOT GET IT that when economics is discussed, this is the kind of issue that drives us away from Washington and their insular bills.

Posted by: TruBluTopaz | March 25, 2010 1:36 PM | Report abuse

Auto and home insurance are completely different from the individual health insurance madate.

Auto insurance is mandated by the states. The states, as the author pointed out, have the "police power" while the federal gov. does not. Also, the mandated insurance is only to protect the other drivers and pedestrians. You don't have to have insurance for yourself.

Home-owner's insurance is only required by lenders not by the government.

Posted by: sakalava47 | March 25, 2010 1:39 PM | Report abuse

I am a Professor of Constitutional Law.The so-called individual mandate in the Health Care Law is not a Commerce Clause issue at all-it is a tax issue. The law requires certain businesses to have health insurance for their employees-this is certainly within the Federal power to regulate commerce. These businesses can be fined. Individuals who are required to file tax returns must show on their return if they have Health Insurance either from their employer, a private plan or a government program including the VA. Some persons are exempt from this requirement. Persons who do not have insurance are then subject to a tax. However, there are income exceptions to the imposition of the tax. No one is required to have the insurance at all. Right now if you have children you pay less tax then people who don’t have children-no one is required to have children. Congress Could have avoided the entire potential Constitutional problem by simply imposing a tax on all taxpayers-clearly within the Congressional power to Tax and then exempting everyone who proved that had insurance from the tax. It is possible that some members of the Court will rule that because the tax is only imposed on people who don’t have insurance instead of a tax on all with an exemption for those who have insurance that the law goes beyond Federal taxation powers. This would be a somewhat surprising result as the tax code is full of very arcane systems of tax and exemption. Overall though I disagree with Professor Chermerinsky’s idea that Congress could force someone to buy health insurance they could not under the Commerce Clause, however under the Tax powers they can certainly impose atax penalty for not having the insurance.

Posted by: kravitzlaw | March 25, 2010 1:52 PM | Report abuse

A tax on what? It took a constitutional amendment to authorize a federal tax on income.

Posted by: bogden1 | March 25, 2010 2:01 PM | Report abuse

The whole issue of the constitutionality of mandated insurance coverage could have been avoided if Congress had tackled the issue from a different direction. The taxing authority of the Federal goernment is not a issue that can be challenged constitutionaly. The imposition of a Federal Healthcare Tax on every individual and family would do away with the need for mandated coverage. Instead, a refund of the tax for every individual and family who can prove coverage, perhaps on a Form 1040HC, would preserve the private insurance industry and the credits provided in the current bill for those who cannot aford coverage would allow everyone who wished to buy coverage and avoid the tax to do so. Those who elected not to buy coverage would not get the refund but at the same time would not be officially "penalized" for failing to do so. The income collected by the government from these individuals could be applied against the tax credits used for the less well-off. This assumes we still want healthcare reform, of course. For those opposed to the current bill, I'm sure this idea would be considered just as bad.

Posted by: sgssbi | March 25, 2010 2:02 PM | Report abuse

There is no "right to privacy" or a "right to be left alone" in the Constitution; these fictional "rights" are the result of overreaching by the Warren Court. An academic point, to be sure, but let's stop kidding ourselves about what the Constitution actually does and does not secure as rights.
Besides, the government could get around this question quite easily. Simply make everyone liable to pay the penalty as a "indigent and uninsured persons' health care contribution", but offer a credit for this tax for those that have their own private insurance. The "mandate" would thus be morphed into a tax preference item.

Posted by: dminnich312 | March 25, 2010 2:03 PM | Report abuse

If the court looks at the larger implications of this bill, e.g. that the bill replaces the American concept of individual liberty with the concept of potentially endless individual mandates, they might just find it tyrrannical enough to over-rule.

Re the idea that the power to tax gives them the right to impose penalties, I think the Justices are smart enough to see behind that fig leaf. It's a de facto mandate and one that should not be viewed as constitutional under the commerce clause.

My own feeling is that like the income tax, which was passed in one form (a tax on the wealthy) and is now applied to nearly all income levels, government-mandated health insurance should be passed as a constitutional amendment by the state legislatures.

Of course, that means it will never happen. Which tells you something about the popularity of this bill.

Posted by: theduke89 | March 25, 2010 2:05 PM | Report abuse

Well,

This are all interesting comments but I have a few questions.

1) The terms of not having insurance is the word "fine" not tax exactly to overcome the apportionment issues of taxes within the Constitution. If it is a fine for not participating in an activity then it certainly calls into question the USG's very wide spread power to tax.

2) Wickard is a pretty poor argument and many Constitutional scholars have called that a huge overreach by the Courts. Nothing out there says it couldn't be overturned. Wickard also might not be on point given that Wickard was actually taking part in an activity...wheat farming...for his own use and thus, found to ultimately impact interstate commerce. Though in Lopez, I think the courts would find that an "inference of an inference" now. In this case, an individual is being forced into the stream of commerce by buying healthcare.

3) As for the comment that if there is no Mandates then the scheme falls apart...that isn't the problem of the constitution that was the legislatures problem in drafting the bill forcing everyone to buy insurance to spread out the costs. They could have as easily just issues a tax on something to pay for the program.

4) I also think there is an inherent liberty/privacy issue. If one reads Roe v. Wade and its progeny, there is certainly a right to privacy with respect to what one does with their own body (though there are certainly restrictions around the margins). So I would find it hard to overcome the privacy issues (particularly the medical records being provided to the government) forcing someone to buy insurance or pay the fine.

What is really sad is this program will cost approximately 2 trillion dollars over the next ten years and because of the need for the government to "control" the issue it won't solve any problems only inflame them. It would have been cheaper and more economically efficient if we just gave all the uninsured (30 million) 67,000 dollars each over the next 10 years and let them figure out what best works for them.

Posted by: SteelHop | March 25, 2010 2:18 PM | Report abuse

@kravitzlaw

So, what is your explaination for the reason that this "tax" originated in the Senate? Doesn't that violate the constitution requirement that bills to collect revenue originate in the House?

Posted by: BradG | March 25, 2010 2:20 PM | Report abuse

If I don't carry health insurance but pay cash for all my health care, how am I "free-rider imposing costs on everybody else"?

If I choose to carry health insurance with a high deductible and pay for the less than catastrophic or serious stuff in cash, how am I a "free-rider"? The latter kind of insurance is also illegal under Obama care.

Never in our history has the federal government been allowed to tell us we had to buy a product or service and on top of that, only to exact government specifications.

This law is an unwarranted intrusion into private lives and an outrage. Typical of the meddling the Left so loves.

Posted by: Chan1947aolcom | March 25, 2010 2:21 PM | Report abuse

All taxes, laws, etc. are mandates of one sort or other. The key: can this insurance "mandate" fit into an existing structure of constitutionally-permitted federal action? The answer is: yes it can.
The states don't have a chance of prevailing in their lawsuits, which is why GOP knows it must go for repeal, or else live with the law.

Posted by: dminnich312 | March 25, 2010 2:22 PM | Report abuse

@dminnich312

You are flat out wrong. The constitution is not a document of Positive Liberty but rather one of Negative Liberty.

The 9th Amendment acknowledges this. We do not derive our rights from the Constitution. The Constitution ennumerates certain powers to be given from the people to the Federal Government. All other rights and powers remain with the people.

The Constitution was never considered to give the people any rights as it was understood by the Framers that the people already possessed said natural rights.

Reading the Federalist and Anti-Federalists papers would be a good starting point to see what the original frame of mind the Founders had.

Posted by: BradG | March 25, 2010 2:30 PM | Report abuse

BradG

The Constitution says nothing of negative or positive liberty. While these concepts are of interest in a philosophical discussion, they are of no effect in common or statutory law.
As far as the Ninth and Tenth amendment, look back at your actual laws that have been deemed to be constitutional. The Constitution also states that federal law is supreme. If you have problems with judicial review, well, you'll have to change that.

Posted by: dminnich312 | March 25, 2010 2:38 PM | Report abuse

Simple question: does the mandated health insurance only cover you in your home state, or does it provide coverage where ever you happen to be in the US?

Posted by: archaeoman | March 25, 2010 2:43 PM | Report abuse

BTW, here's a law that fines you if you don't do something: filing your Federal income tax.

Even if you don't have income, you are required by law to file a return. Even though this requirement could force one to self-incriminate oneself, you have to file a return. The courts have upheld this requirement, even though the 16th amendment only mentions levying and collecting income tax.

Also, by law, we are all suppose to figure out our tax by the ATM method, even though most of us clearly will not owe on this basis.

Posted by: dminnich312 | March 25, 2010 2:48 PM | Report abuse

http://www.healthcarereformconstitution.com

TAX and SPEND CLAUSE

The authority to tax and spend is contained within the introduction to Article I, Section 8 and states, “The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defence and general Welfare of the United States…”

Proponents who recognize the weakness of the Commerce clause argument have alternatively proposed that a federal government-run or government-managed health care or insurance program, which requires participation through an individual mandate for coverage, is authorized under the tax and spend authority of this Section.

Congress however, cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In Bailey v. Drexel Furniture (1922), the Supreme Court ruled that Congress could not impose a tax to penalize conduct it could not otherwise regulate under the Commerce clause. Consequently, Congress cannot use a tax to regulate conduct that is otherwise beyond its regulatory power.

COMMERCE CLAUSE

If the US Congress can mandate that an individual purchase a product, i.e. health insurance, from another government or private entity, solely because of that individual’s existence, where is the firewall against future mandates not related to health insurance? Should the People be required to purchase a place of residence to somehow reduce the social service costs of homelessness, which is transient and may cross state lines? Should the People be required to purchase vehicles made in Detroit to somehow reduce the suffering of the American auto industry, which manufactures and ships parts across state lines? I am afraid that our concern for the micro-issue of health insurance coverage has blurred our vision of the macro-issue that is a general shift from federalism to statism.

CONSTITUTIONAL AMENDMENT

In order to protect this firewall and defend the vertical and horizontal separations of power, I have argued that Congress should begin proceedings under Article V to formally amend the US Constitution. Such an action would avoid the type of abuse we are now witnessing of the Commerce Clause; it would give clear authority to the US Congress to enact a government-run or government-managed health care or insurance program; it would give clear authority to the US Congress to mandate that individuals purchase health insurance (in the same way that the 16th Amendment requirements individuals to pay a federal income tax); and, it would require popular support by three-fourths of the States (as opposed to 279 legislators and one (1) executive in Washington D.C.).

Posted by: dskilborn | March 25, 2010 2:57 PM | Report abuse

dskilborn

Well - we've come a long way since Bailey v. Drexel Furniture (1922!!!)and other such rulings. In the past, federal laws against child labor were deemed unconstitutional under this reasoning, which has long been abandoned by the courts.

I do agree with you the only way to change these uses of the Commerce Clause is by amendment.

Posted by: dminnich312 | March 25, 2010 3:06 PM | Report abuse

Wake up people – throw the bum’s out – ALL OF THEM ! ! ! How is HOPE & CHANGE working out for you ? Is it time for a dictator and chief ??

If you disagree then go ahead and call me names, you don't have facts or an original opinion, watch the dems quit, find some excuse to not run again or just run for the hill's before someone get's out the tar & feathers, and find's a good rail ! !

Don't get violent, do it at the ballot box. If people turn to anchry then we will have a dictator, please be carefull. Keep it peaceful and respectful, it’s the only way to get it behind us. We will take all of them out in November.

MY BODY, MY CHOICE ! Sound familiar Libs ?

Posted by: LawFinder | March 25, 2010 3:14 PM | Report abuse

Of course ObamaCare is unConstitutional.

Everyone knows that.

It never stops Democrats though.

They would like to burn the Constitution and let Barack H. Obama and Nancy Pelosi write one of their own.

If they are not stopped soon, that may happen.

Posted by: battleground51 | March 25, 2010 3:25 PM | Report abuse

HERE IS THE REAL INFO ON GOVERNMENT HEALTH CARE, IT’S NOT LEGAL

U.S. SUPREME COURT
LINDER V. UNITED STATES, 268 U.S. 5 (1925)
LINDER V. UNITED STATES
NO. 183
SUBMITTED MARCH 9, 1925
DECIDED APRIL 13, 1925
268 U.S. 5

CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLLABUS

1. Any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power but solely to the achievement of something plainly within the power reserved to the states, is invalid and cannot be enforced. P. 268 U. S. 17.

2. Direct control of medical practice in the states is obviously beyond the power of Congress. P. 268 U. S. 18.

3. Incidental regulation of such practice by Congress through a taxing act, like the Narcotic Law, cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure. P. 268 U. S. 18.

When will the people wake up and throw these bum’s out, all of them ! !
we need to downsize on the size of the government by about 50%, and get back to the basic duties of the fed. no more laws, enforce the ones we already have – execpt this new healthcare bs. the States are already bringing lawsuits, writing laws and amendments to block this nightmare. I think it’s written somewhere that the States have the right to desolve the current batch of crooks and start over with new people, but Nov will take care of that soon enough. I think the FBI or special prosecutors will need to get involved soon, laws are being broken, bribes, threats, payoff’s and lies are everywhere.

Posted by: LawFinder | March 25, 2010 3:35 PM | Report abuse

While I think it is likely that the supreme court will uphold it, I wonder what the limits of the governments power to tell you what to buy are. There may be a good to society here, but they are entering a zone that makes me a bit uncomfortable.

Posted by: invention13 | March 25, 2010 4:07 PM | Report abuse

LawFinder: Re Linder (1925)

This ruling basically stated that the Feds overstepped their bounds in determining what was good medical practice in relation to the Harrison Narcotics Act (Justice James Clark McReynolds stated, "Obviously, direct control of medical practice in the states is beyond the power of the federal government.")

In practice as well as rulings, Linder has largely been overturned, as anyone familiar with federal drug regulations is now aware.

Posted by: dminnich312 | March 25, 2010 4:37 PM | Report abuse

Growing wheat and possessing marijuana are positive actions. There is no action by a person without insurance other than existing. By this logic, there is NO LIMIT ON WHAT CONGRESS CAN LEGISLATE. The original intent of the Constitution was to limit the power of government. If you dispute this, please reference the Federalist Papers and learn a little history rather than merely what law school taught you. Why would they put in an escape clause that would essentially allow them to justify any legislation for any situation? The simple answer is that the would never do this. The same is true for the clods who argue "general welfare". Once again, why would they go through the motions of creating a Constitution to limit the 3 branches and then allow Congress a loophole with which to do anything they wish? They would not. This mandate is unconstitutional. If it is not, then we are in big trouble, because any Congress, democrat or republican can legislate whatever they wish under the commerce clause or general welfare gambit. You must run 5 miles a day. It affect national health which crosses state lines. You must buy a Chevy Impala. Big Mac's are now illegal. You get the picture.

Posted by: dmorris1 | March 25, 2010 4:48 PM | Report abuse

The health care bill is unconstitutional because it is a bill that raises revenue that arose in the Senate. Article I, Section 7 of the Constitution provides that ALL bills for raising revenue SHALL originate in the House.

Can't anybody in DC read plain English?

Posted by: rocks1 | March 25, 2010 5:03 PM | Report abuse

BradG

The Constitution says nothing of negative or positive liberty. While these concepts are of interest in a philosophical discussion, they are of no effect in common or statutory law.
As far as the Ninth and Tenth amendment, look back at your actual laws that have been deemed to be constitutional. The Constitution also states that federal law is supreme. If you have problems with judicial review, well, you'll have to change that
-------------------------------------------

You sound like a part-time strict-constructionalist (ie only when it suits you). Discussion of framer intent is very important to disecting the Constitution. The concept of the Constitution is one of ennumurated powers. This fits in whith the concept of Negative Liberty. The Constitution was designed to constrain the government and not the people. The main objections to the Bill of Rights in the first place was not to retain more power to the state but rather because people thought it was redundant. Hamilton even asked what is the point in securing rights that the Government has no power to take.

Precedent gets overturned all the time in the Courts. ust look at the massive re-wrting of federal power that happened in 1936-1937. It is more important to looks at the document itself than what previous courts have said.

On a personal level I think the Constitution was a mistake. The articles of confederation are much more to my liking. If we must have a government then make it small.

Posted by: BradG | March 25, 2010 5:34 PM | Report abuse

rocks1, the bill originated in the House. The Senate then amended it by striking all text after the title and replacing it with the amended text. The House then accepted that amended version of their own bill.

Posted by: RichardCA | March 25, 2010 6:04 PM | Report abuse

Commerce, of course, is not the only Constitutional issue at-play here. It is doubtful that taking from me my property (money) without due process is NOT a violation of both the 5th Amendment and Article 1 of the 14th Amendment.

But there is a more disgusting level of unconstitutionality at-play here: Legislated inequality.


Three classes of Americans now exist -UNDER LAW:
1. The People
2. Government elected officials
3. Sr staffers of those elected officials.

The first of these three classes - We The People - now are to be FORCED to engage in UNWANTED commerce (the forced purchase of govt healthcare), a violation of the takings clause in both the 5th and 14th Amendments - and so unconstitutional.

The second two groups, SIMPLY BECAUSE OF THEIR EMPLOYMENT STATUS within the Government, are NOT to be forced to engage in said commerce. Even if one were to make an exception for elected leaders, as they are exempt from arrest and trial for certain offenses during the Term, the exception for staffers disgusts.

Congress has passed, and the Executive has signed in to law, legislation making these groups unequal before the law. One group is to be forced to do something, the other groups excused from doing so.

Legislated inequality.

If that is not a violation of equal protection under the law, the 14th Amendment, then that Amendment means nothing at all.

Posted by: inthisdimension | March 25, 2010 6:05 PM | Report abuse

You sound like a part-time strict-constructionalist (ie only when it suits you).

> Just pointing out that these philosophical debates - which BTW are well known to any judge, senator, representative, or president - don't have an impact on their decisions, given that their decisions are so distant from these concepts.

Discussion of framer intent is very important to disecting the Constitution. The concept of the Constitution is one of ennumurated powers. This fits in whith the concept of Negative Liberty. The Constitution was designed to constrain the government and not the people.

> Government is inherently restraining on individuals; you're taking the negative liberty argument out of its context.

The main objections to the Bill of Rights in the first place was not to retain more power to the state but rather because people thought it was redundant. Hamilton even asked what is the point in securing rights that the Government has no power to take.

> A philosophical question, and the answer is simple: one can lose rights by the actions of individuals as much as by the actions of government. Government is there to secure these rights against encroachment by individuals. To do so the government itself must restrain individuals - the paradox of trying to preserve freedom via coercion. In the end, it's always a trade-off, rather than an adherence to fixed principle.

Precedent gets overturned all the time in the Courts. ust look at the massive re-wrting of federal power that happened in 1936-1937. It is more important to looks at the document itself than what previous courts have said.

> Not holding my breath on this one!

On a personal level I think the Constitution was a mistake. The articles of confederation are much more to my liking. If we must have a government then make it small.

> Hmm, I agree a confederation (with a Bill of Individual Rights) would have been the way to go, and the original constitution (as interpreted) was closer to a confederation than it is today. But we have to work with what we've got, and this court will not likely rule against the mandate.

Posted by: dminnich312 | March 25, 2010 6:50 PM | Report abuse

If the mandate is judged constitutional, I look forward to the day a Republican supermajority mandates that everyone buy a gun.

Posted by: TXKafir | March 25, 2010 7:15 PM | Report abuse

Why are you furthering the lie that Citizen United gives corporations free speech rights, for the first time? It does neither. This is why the Washington Post is going broke. You call this quality reporting?

Posted by: TheLastBrainLeft | March 25, 2010 7:24 PM | Report abuse

The Supreme Court was originally set up to protect the people from an over-bearing corrupt government and are as relevant today as they were 200 years ago. Let what is best for ALL the people prevail, and not just those that are friends of one political party.

Posted by: DL13 | March 25, 2010 7:24 PM | Report abuse

The government can't mandate personal behavior, fine somebody for NOT buying something, or mandate that somebody buy something from another private person. Anyway, the USSC needs to slap down the inpertanent, rude SOB, the POSOTUS, just for general principle.

Posted by: ecartr5 | March 25, 2010 7:37 PM | Report abuse

how can a clause that is supposed to encourage commerce between the states be used to justify forcing someone to purchase a policy that is only available to you in the state that you live? in other words, the commerce clause is for interstate commerce, but in this case the only purchase i can make is intrastate. also, i believe we are afforded due process before my property (money) can be taken.

Posted by: razor44 | March 25, 2010 7:38 PM | Report abuse

Quick point. Liberals cannot claim that healthcare mandate is constitutional because it's a tax. A known constitutional scholar Barack Obama - also the man who signed the medical care bill - during his interview said that fining people who don't buy insurance is not a tax...

"President Barack Obama says requiring people to get health insurance and fining them if they don't would not amount to a backhanded tax increase. "I absolutely reject that notion," the president said."

http://www.cbsnews.com/stories/2009/09/20/politics/main5324703.shtml

Not only president Obama disagreed with the idea that health care fine is a tax -he absolutely rejected that notion.

So, whatever arguments the left make about the constitutionality of the mandate - they cannot use the argument that it is simply a tax. It is NOT a tax.

Posted by: hyphenatedamerican | March 25, 2010 7:45 PM | Report abuse

the only reason this is an issue is because congress was able to hide the true costs of the overhaul by forcing people to purchase the plan. by doing it this way, rather than by tax, any money used to purchase healthcare is not included in the overall cost of the bill. had this just been a tax that provided everyone health insurance, the true cost of the bill would have certainly been trillions more.

Posted by: razor44 | March 25, 2010 7:51 PM | Report abuse

Thank you for this - it's very insightful. Just wanted to share a blog that has a great allegory to this issue:
http://www.doczero.org/2010/03/the-parable-of-the-satellite-dish/

Posted by: teresakoch | March 25, 2010 7:56 PM | Report abuse

"I agree with health reform’s supporters that one’s decision not to buy health insurance has economic ripple effects. Basically, it turns you into a free-rider and that imposes costs on everyone else in the risk pool. As Prof. Erwin Chemerinsky recently put it: “There is no constitutionally protected freedom to be able to refuse to be insured or to avoid paying for the benefits provided.”

What kind of logic is that? It completely inverts the entire point of the Commerce Clause. By that rationale, anything I DON'T do also has economic ramifications that require me to somehow be subject to some crazed Federal scheme. By literally sitting on my (intrastate) porch, I am NOT out engaging in interstate commerce, which under that twisted view of Constitutional law means I actually AM engaging in interstate commerce. That's just common sense.

Contrary to "Professor" Chemerinsky's viewpoint, there actually used to be a constitutionally-protected right to not being forced to pay for insurance - it was literally freedom, pure and simple. I mean, why even bother with the Fifth Amendment Takings Clause when the government can basically order me to spend my money anyway, or that pesky 4th Amendment right to be secure in my person and effects against unreasonable search and seizure. All those considerations fly out the window when I somehow "free ride" on society but NOT buying something I don't read.

This is what we get for electing an ivory tower Constitutional scholar. Sweet jesus.

Posted by: zippyspeed | March 25, 2010 8:14 PM | Report abuse

Edwin Cherimerinsky is a total leftist who while probably understands the constitution is spinning it to promote his own leftist radical views.

He's right, the constitution doesn't give you the right not to be insured. The problem with that leftist spin is that it doesn't have to. The Constitution gives certain powers to the federal government, while it does list some individual rights it also states that individuals have other rights not listed and the fact that it lists some doesn't mean individuals aren't entitled to those not listed.

The leftist problem is that the constitution does give the federal government only the powers listed. All other powers are granted to the states. Forcing someone into commerce so you can then regulate them under the commerce clause is not one of the powers given to congress.

Posted by: robtr | March 25, 2010 8:16 PM | Report abuse

Cherminsky is a leftist (i mean, he's a professor and he came of age in the 60's to boot) and his framing of the issue tells you all you need to know.

instead of asking "can the government do that?" he asks "does the individual have that right"? thats how he ignores the commerce clause and focuses only on the amendments.

luckily our founding fathers were not leftists and both granted government limited powers (the original constitution) and gave individuals rights (the bill of rights)

Posted by: dummypants | March 25, 2010 9:17 PM | Report abuse

The argument that people should be forced to pay because if they don't then they are raising costs for everyone else is specious.

One only effects others costs if/when one incurs said uninsured costs AND fails to pay for them.

So the new law of the land finds us all guilty preemptively of failure to pay for health care services that have not been rendered and may never be. And then it forces us to pay a fine every month for our crime.

The only logic under which that makes sense is classifying the money we're forced to pay as a tax rather than a health insurance premium.

If the personal mandate is found constitutional, then it means we've fallen into an abyss where the federal government can and will begin to remove other freedoms and liberties one by one.. all for our own good and the good of the whole of course.

Posted by: DrDeano | March 25, 2010 9:20 PM | Report abuse

Its amazing how the leftists posting here all think alike in that they all want this healthcare but know that without FORCING everyone to pay then the plan will fail..awe too bad. With leftist its always ME,ME,ME...and" you'd better help me because I can't make it on my own". Its always all about what they need and screw everyone else, who JUST WANT TO BE LEFT ALONE! I'm really tired of this crap and so are a lot of other people.

Posted by: tractah | March 25, 2010 9:35 PM | Report abuse

Wickard v. Filburn has long been due for being overruled.

Posted by: ooyah32 | March 25, 2010 9:43 PM | Report abuse

Can we stop with the "decision not to buy insurance" nonsense? Someone who does not buy insurance need not make any decision at all.

And the economic effects for not buying insurance are another example of inference upon inference. For an uninsured individual to cost the system, first he must get sick, then he must actually go to the ER or somewhere to get care, then he must get care from a health care provider that chose to give care, then he must go bankrupt in order to avoid paying, then that provider must have chosen not to absorb the costs by reduction of profits, and instead pass those costs onto the overall system.

And in case anyone wants to challenge the assertion that a health care provider chose to give care, every provider has the choice to participate in Medicare. If that provider chooses not to participate in Medicare, they need not serve those unable to pay.

Posted by: RichardCA | March 25, 2010 9:54 PM | Report abuse

It the courts rule the mandate constitutional, what is to stop congress from demanding that all new car purchases be GM or the purchaser will be penalized with a "tax"? Congress could declare that it is in the interest of the country's general welfare that GM survive and prosper, and Americans have an obligation to participate in that process as it will benefit the country as a whole.

Or, they could demand that those with adequate financial means purchase a home rather than renting, claiming that it is in the country's best interest to stabilize the mortgage and construction industries and stabilize home prices.

Posted by: anna_78750 | March 25, 2010 9:57 PM | Report abuse

What kind of logic is that? It completely inverts the entire point of the Commerce Clause. By that rationale, anything I DON'T do also has economic ramifications that require me to somehow be subject to some crazed Federal scheme.
**********

thats the dirty secret behind all the so-called "social insurance" systems that liberals and all equality-of-results people try to push (i.e, social-ized, rather than privately sold and bought, insurance).

at the end of the day, they end up costing you your freedom.

afterall once we all "agree" to pick up the tab for others actions (i.e., statist liberals tell you that doing so is good for your soul) they turn around and have the perfectly reasonable excuse to tell you can't do some things and that you must do other things.

Posted by: dummypants | March 25, 2010 10:34 PM | Report abuse

Can we stop with the "decision not to buy insurance" nonsense? Someone who does not buy insurance need not make any decision at all.
*********

yeah you know, just like not paying for some one else's health insurance is "murder" according to liberals like alan grayson and so they get on MSNBC saying asinine things like (they claims) 40,000 people dying a year because they dont have health insurance is a "holocaust"

Posted by: dummypants | March 25, 2010 10:47 PM | Report abuse

and also because your thoughts are now interstate commerce.

Posted by: dummypants | March 25, 2010 10:48 PM | Report abuse

A better way to put this issue is to say that under current law, it would appear that Congress can do this and it is not unconstitutional. But if the Supreme Court wanted to make a radical departure from current law, they could change the way the Commerce Clause is interpreted and limit Congressional power. Your article makes it sound like a balancing of pros and cons without a history. Congress has tremendous power to regulate under the Commerce Clause. When I read some of what Congress has regulated under the Commerce Clause, I find it shocking. So it is not a toss up.

Posted by: marcseltzer | March 25, 2010 10:48 PM | Report abuse

To follow-up my posts on March 24, 2010 7:52 PM and March 25, 2010 4:13 AM: Suppose some future government dominated with religious conservatives - modern Republicans - were to put forth the individual mandate "In order to protect America's children, you shall buy and use filters in your TV sets and computers, or you're fined." Suppose they were to say, "Oh, it's not universal and unconditional since it applies to only those who own TVs and computers." OK then? ----- There is no end to this very slippery slope on individual mandates. ---- Where is the ACLU? Where are the true civil libertarians?

Posted by: Keefanda | March 25, 2010 11:23 PM | Report abuse

I heard O'Reilly ask a NY democrat Congressman last night if he could tell us WHO is going to know, and how would they find out, that I did not buy insurance, and WHO will assess a fine against me? The Congressman avoided the question of course, because answering would divulge the ugly truth that this is a government controlled mandate, which is "slightly" unpopular and very possibly unconstitutional for the variety of reasons others have commented on here.

Posted by: clarkohrepub | March 26, 2010 12:21 AM | Report abuse

The individual mandate is unconstitutional, and here's why: the Constitution does not grant the federal government the right to require individuals to engage in commerce with private institutions (insurance companies). Unless a power is delegated to the federal government, it lies with the States or with the People. Therefore, the federal government doesn't have the power to require individuals to buy life insurance from a private company.

The insurance mandate isn't a tax; everyone has to pay a tax. Now, if Obamacare had been written to charge everyone a health care tax, and then offer a tax credit for those with qualifying insurance, that would have been legal. The Dems blew it; they didn't want to be seen as raising taxes on everyone (which they, in effect, did).

I'd bet that the SC will take this on, and decide in favor of the plaintiffs/states. I'm sure that Obamacare has a severance clause (overturning of one part leaves the rest intact), so now you'll have an extremely expensive healthcare program that lets people opt out, that forces the insurance companies to insure anyone at any time without preconditions, and forbids the insurance companies from raising their rates. Can you say 'bankrupt insurance companies?' The Dem response will be single-payer (government) healthcare. The GOP response had better be along the lines of Paul Ryan's plan.

Posted by: johnclif | March 26, 2010 1:18 AM | Report abuse

There are a lot of fact and logic problems with this article, which I'll list.

1. The author wrote: "But we're talking about a court whose conservative majority just overturned a bipartisan campaign finance law, conferring free-speech rights on corporations for the first time." This statement is absolutely and shamefully false. Corporations are known in the law as "legal persons", and the supreme court extended the protections of Bill of Rights, including the 1st amendment, to legal persons a very long time ago.

2. The author wrote: "On the merits of the issue, I agree with health reform’s supporters that one’s decision not to buy health insurance has economic ripple effects. Basically, it turns you into a free-rider and that imposes costs on everyone else in the risk pool." This argument is logically invalid because it's circular and assumes facts not in evidence. It's circular because it posits the conclusion (Congress has the constitutional authority to impose an individual mandate) as a necessary component of the justification. One cannot argue the economic impact of not buying insurance assuming the individual mandate is already in place. Moreover, it assumes that uninsured individuals can't or won't pay cash or receive charity when obtaining health care, which is obviously false. Both of these flaws arise from the author's assumption that America already has a unitary risk pool for health risks. This assumption is also false on the facts and invalid on the logic.

3. The author wrote: "This [social solidarity in the form of government run medicine] may be a necessary change -- the price of living in a modern, urbanized society in which medical care has become both pervasive and expensive, far more pervasive and expensive than the framers of the Constitution, or the original Medicare statute, for that matter, ever imagined." This argument is the foundation upon which all statism rests, but it is circular and thus logically invalid because it assumes that the authority of state to control society arises from society's need for such control. Thing is, we have a constitution that says otherwise in no uncertain terms. What is more, this argument falsely assumes that society has no means to control itself other than state control.

Anyone who bothered to read the four paragraphs above is now armed to argue effectively against ObamaCare's supporters particularly and statists generally. Arm yourselves with facts and logic, fellow citizens, for we must defeat the statists lest they fundamentally transform America into a country none of us want to live in.

Posted by: Lavaux | March 26, 2010 2:50 AM | Report abuse

So let me get this right. When the Supreme Court, by liberals' estimation, finds penumbrae and implied rights in various amendments of our Constitution that permit ending the life of an unborn child or the free exercise of non-procreative sex that violates the laws of biology and the doctrines most of the world's faiths,then there is a right to privacy. But, alas, when it comes to mandates to participate in commerce regardless of individual choice, then liberals don't seem to think there is a right to privacy.

What amazes me is that both parties create these types of situations by pushing the ideological envelope so far. Some say conservatives have no heart, liberals have no brains. I would add that the bulk of publicly known libertarians lack both. If the nanny state nonsense of both parties doesn't end, this country will be led by a libertarian someday.

Conservatives should stay out of the bedrooms and personal affairs of American citizens, no matter how distasteful they and others might find certain "activities and predilections." It's a free country and we are not exempt from being offended. Liberals need to stay out of people's wallets and their kitchen cupboards and their medicine cabinets and every other thing they stick their noses into. Folks will prosper or fail on their own and that is just how it is. No amount of government meddling and legislating will end suffering and inequality. That is just a fact of human existence.

This country needs a common sense leader who can get things moving again and will leave this fringe partisan stuff behind. The voters don't want Social Security and Medicare repealed and the right should give up on that pipe dream. They are part of the safety net and social fabric of America. By and large, American citizens don't want and don't trust vast new spending programs and entitlements and constant intrusions into every facet of daily life--diet, energy consumption, health care, etc. That is something the left had better learn before they are back in the wilderness as the untrustworthy and unelectable lot they have been for most of my lifetime.

Posted by: rkhasenpfeffer786 | March 26, 2010 3:51 AM | Report abuse

I'm curious what people think about the privacy issue raised by an individual mandate. Do people think there is a constitutional challenge based on privacy?

I would think the government requiring people to enter into a contract with an insurer which then has access to your every medical decision seems like an invasion of privacy far more than not being allowed to have an abortion. When applying for insurance, an insurer even pulls your medical records. What are the legal grounds that say one is okay, but the other is unconstitutional infringement upon privacy?

Posted by: RichardCA | March 26, 2010 4:58 AM | Report abuse

The insurance mandate isn't a tax; everyone has to pay a tax.
***************

But, it IS a tax. That what it says in Sec.59B of Title V of the Bill: "In the case of any individual who does not meet the requirements of subsection (d) at
any time during the taxable year, there is hereby imposed
a tax equal to 2.5 percent...".

The thing I don't get is the protestations by the Right that the Government is "forcing" you to buy insurance.

The Government isn't "forcing" you to do anything. It is merely putting an extra 2.5% tax on your income if you don't have health insurance.

If you want to live "off the grid" or "just be left alone" then you pay the 2.5% tax and you'll be left alone.

The system proposed in the Bill is in fact very similar to the one that operates in countries such as Australia. At tax filing time, you show the Internal Revenue proof that you have held a health insurance policy during the year. If you can't show this proof, then you pay a tax surcharge.

Posted by: Vik_2010 | March 26, 2010 5:30 AM | Report abuse

Vik_2010, the difference is a subtle one. Some believe the government is allowed to encourage behavior, but not allowed to coerce behavior. The Supreme Court actually ruled on exactly that difference, although it was coercion of state government and not an individual, in New York v United States (1992) when saying the government "crossed the line distinguishing encouragement from coercion" in the ruling.

I don't portend to know how the Supreme Court would rule on the individual mandate's coercive effect, nor even if individuals have the same right as sovereign states. I do definitely understand why someone resists coercion far more than encouragement though.

Posted by: RichardCA | March 26, 2010 6:39 AM | Report abuse

We're really being mandated to purchase one product (insurance) to help pay for another product (healthcare) with no regard that we may want to purchase medical services with cash...most pundits call it a "free ride" on the system...since when is paying by cash a "free ride?"

Posted by: gsdk9rat | March 26, 2010 7:13 AM | Report abuse

@dminnich312

In the end I fear you are right. I doubt this will be considered uncostitutional. Although, I think that the founders would consider it to be a gross over-extension of federal power. What is and what should be, in my opinion, are two very different things.

Posted by: BradG | March 26, 2010 12:38 PM | Report abuse

This article well illustrates the dilemma, and paints the hard choices for this nation clearly.

However, the irony of introducing the argument 'free riders' into this is thick beyond belief.

What is next? Mandating that all have a job, or pay a fine-- as opposed to, receive 'free ride' subsidy?

Why not, if we can 'remedy' their free ridership by putting a gun to employers and forcing them to give these people jobs, so that they are no longer 'free riders?'

(Madison Ave. has nothing on modern left wing political repackagers and remarketers.)

The national divide is cleary based on the split between those with a bias towards free associations, plural, and those with a bias towards forced association, singular. Or, as that was dressed up in the article, 'rugged individualism vs. social solidarity.'

One of those groups requires access to offensive first use of force to achieve their ends, the other doesn't.

Posted by: Frediano_B | March 26, 2010 1:47 PM | Report abuse

This was exceptionally well written and fair minded. I am a first year law student and studying Constitutional Law at the very moment, so I find the Un/Constitutional arguments regarding this legislation utterly fascinating.

I think this writer rightfully notes that the past 100 years or so has seen a general expanding of Congressional power/reach under Commerce Clause authority.

While the Lopez (gun) and Morrison (female abuse) cases were significant in that they clearly expressed that such authority is not entirely absolute, the subsequently decided Gonzales (medical marijuana) case was a return (if not furtherance) of interpreting the Commerce Clause as extending VERY broad power.

What I think will be most interesting will be how Scalia and Alito vote (assuming that the Court even grants cert - though I both suspect/hope they do).

Thomas would strike it down 1000%.

I think it almost certain to assume Ginsburg, Breyer, Stevens, and Sotomayor would uphold. Kennedy too - though more the wildcard there.

I think Alito would actually strike down (given what I consider his Libertarianist leanings).

Most interesting will be Scalia - particularly in light of his concurrence in Gonzales.... I think he would like to strike it down, but given what he wrote in Gonzales, I can't fathom how he could justify it....

Roberts - probably leaning toward unconstitutional, given I've read he views the Commerce Clause narrowly...

So...

Unconstitutional: Thomas, Alito
Constitutional: Breyer, Ginsburg, Sotomayor, Stevens

Leaning Constitutional: Kennedy

Unconstitutional: Thomas
Leaning Unconstitutional: Roberts, Alito

Scalia - SHOULD be Constitutional, if he adheres to what he wrote in Gonzales - but then again, I thought he was WRONG in Gonzales as well as inconsistent with his past decisions/comments so... it sure will be interesting to find out!!!

Posted by: jpsartrean | March 26, 2010 4:06 PM | Report abuse

Bogden1:

That’s actually a novel point on the 5th Amendment. I don’t know that I ultimately accept it (I am not convinced that this law is unconstitutional) but it is food for thought and I would like to hear an informed legal response to your argument. Because even though health care and health insurance are not one and the same, they are closely related. My gut tells me that the Commerce power allow this law and that the Roberts court will likely go along. But I pretty much feel the way the article does…I am not guffawing at the notion of it being unconstitutional as crazy, but I reject most of the uninformed (shall we say “Glenn Beck” type) of arguments that have been thrown out there.

Posted by: middleamerica1 | March 26, 2010 4:15 PM | Report abuse

After re-reading the complaint filed by the Florida AG, a few more things caught my attention... Count 2 is a challenge to the universal mandate insofar as it is alleged as an "unapportioned capitation" or "direct tax" impermissible under Art. I, Sec. II, Clause IX of the Constitution -to quote the complaint: "Said tax penalty applies without regard to property, profession, or any other circumstance, and is unrelated to any taxable event or activity. It is to be levied upon persons for their failure or refusal to do anything other than to exist and reside in the United States."

This appears an argument distinct from the Libertarian/Commerce Clause authority challenge though it looks like the AGs are trying to link them... I have no idea what (if any) precedent there is regarding this "direct tax" challenge...

I'm also curious as to if the Ninth Amendment could perhaps come into play in this debate and/or the "right to privacy" - the famed Brandeis "right to be let alone" could, imho, be invoked to favor the "in/non - activity" vein of argument.

Though I personally feel this legislation probably does overstep Constitional authorization, I'm also starting to worry... what IF the Supreme Court does strike it down? Backlash? Ramification? Believe it or not, Court decisions have power/authority on insofar as the PEOPLE (and/or Executive??) truly RECOGNIZE such authority... Futhermore, you've got a PRESIDENT who has been the head of the law review for arguably our most prestigious legal institution (Harvard Law) as well as CONSTITUTIONAL LAW PROFESSOR who has signed this bill into law.... and.... it could end up being judged "unconstitutional"?? Troubling wouldn't begin to describe that situation...

Posted by: jpsartrean | March 26, 2010 10:19 PM | Report abuse

jpsartrean,

The precedents for direct taxation are pretty easy to find. Just look at the 16th amendment, and why it came into existence (Pollock). After the income tax was made legal, there are few cases as Congress generally just used income taxes which had virtually unlimited scope. Bowers v Kerbaugh-Empire Co. (1926) comes to mind for a post-16th.

What if the Court does not overturn the individual mandate? There are consequences either way, although I don't see there would really be overwhelming controversy if SCOTUS overturned only the individual mandate and left the remaining health care reform package intact. It would leave Congress strongly wanting to fix the hole left behind, but New York actually proves it is not absolutely necessary to pair an individual mandate with guaranteed issue (insurance just becomes far more expensive in the individual market).

Posted by: RichardCA | March 26, 2010 11:37 PM | Report abuse

Thank you Middleamerica 1. The 5th Amendment refusal right seems more securely founded in the Bill of Rights than the vague right to privacy arguments, and as an amendment, it trumps any contrary Article 1 provision. Realize, however, that it's not for the faint of heart. It takes overcoming the fear of death, which all the cowards favoring this legislation aren't willing to do. Let's not forget that on Memorial Day.

Posted by: bogden1 | March 31, 2010 1:27 PM | Report abuse

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