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Posted at 12:50 PM ET, 12/14/2010

The difficult question of the health-care law's constitutionality

By Charles Lane

Judge Henry E. Hudson's decision striking down the health care law's individual mandate doesn't surprise me. I have never seen this statute as a constitutional no-brainer. To the contrary, it raises one of the most profound questions our courts can address: what is the meaning of American citizenship? And both proponents and opponents of the bill are offering answers with plausible roots in American constitutional tradition and practice.

To oversimplify a bit -- but not much -- the Constitution created a federal government of limited and enumerated powers. All other powers were reserved to the states or to the people. The Framers did this to protect against two specific forms of tyranny: domination of the states by Washington and control of individuals by Washington. One of the most important grants of power to Congress was its authority to regulate interstate commerce, which, by negative implication, left most intrastate and individual conduct beyond the reach of Washington -- but, importantly, under the near-complete control of the various state governments.

The entire system embodied an individualistic and localistic view of citizenship, one that emphasizes what the people have to lose, in terms of both rights and prosperity, when more and more decisions are made at the national center.

This is the view of citizenship embodied in the conservative reaction to the individual mandate. As Virginia Attorney General Ken Cuccinelli puts it: "This case is not about health insurance, it is not about health care. It is about liberty."

By the way, there's no contradiction, constitutionally, between conservative opposition to the Obama bill's individual mandate and conservative support (or toleration) of an individual mandate law in Mitt Romney's Massachusetts. The latter is well within Massachusetts' constitutional powers to regulate commerce inside its boundaries; anyone who doesn't like it can, in theory, move to another state. The federal mandate, it is argued, exceeds Congress's power to regulate interstate commerce; it not only dictates a specific purchase, but offers no way to escape it.

Since at least the start of the 20th century, however, a different view of citizenship has arisen, one shaped by the modern realities of urbanization and industrialization. On this view, citizens have rights and responsibilities as members of the community -- and the community, for most relevant purposes, has grown into a national one. Most problems are national problems, and therefore it makes less and less sense to address them on a state by state basis, or to leave them up to individuals.

A classic example is environmental protection. The Clean Water Act grants Washington the power to regulate effluents into the "waters of the United States," which has come to mean practically all water everywhere, since pollutants travel readily through water and all water -- from a single puddle to the mighty Mississippi -- flows downhill to the sea.

Environmental and other federal regulation is possible largely because, in a series of major decisions, the New Deal-era Supreme Court re-interpreted the Constitution in light of what it saw as modern reality. It ratified the expansion of national authority under the commerce clause, on the theory that interstate commerce meant not just trade across state lines, but the entire web of activity, individual and corporate, that defined a national economy united by a single currency. Some recent decisions trimmed commerce clause authority, in ways that may yet affect the health-care statute. But the main tendency of the court's jurisprudence for the last 80 years or so has been to define national markets broadly, and to uphold their regulation by the federal government.

Thus does the Obama administration reject the opponents' characterization of the individual mandate as a penalty on inactivity -- and defend it as necessary to prevent "free riders" from exploiting a system that all of us will have to use at one time or another. It is a view of citizens not as the heirs of yesteryear's autonomous yeoman farmers -- but as members of a nationwide, 21st-century risk pool.

Opponents of the individual mandate ask: if the federal government can order citizens to buy a certain health plan at a certain price, what's to stop them from ordering us to do almost anything? Supporters ask: if the federal government can't enforce this modest requirement in the public interest, what's to prevent the entire health-insurance system from unraveling?
We shall see which view of citizenship prevails in the courts. But let no one pretend it's a simple matter, or without major implications for the nature of American government in the century ahead.

By Charles Lane  | December 14, 2010; 12:50 PM ET
Categories:  Lane  | Tags:  Charles Lane  
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Comments

The Right has no intention of fixing healthcare. Which is fine with me because once the raggedy blue-hairs that make up the GOP base meet their makers, the party will shrivel up and die.

Posted by: SmallBusiness | December 14, 2010 1:58 PM | Report abuse

Why not set it up like highway speed laws? You can choose wether or not to comply, but if you don't comply you won't have access to this rather large pile of cash.

Posted by: ideallydc | December 14, 2010 2:05 PM | Report abuse

"...it not only dictates a specific purchase, but offers no way to escape it."

This isn't exactly true - the "public option" failed - remember? Those buying insurance will have a choice of companies and plans, and can buy across state lines.

Don't like it? You can still leave the country, although you might have to look pretty hard to find another one that doesn't have either a similar plan or single payer.

Posted by: Pamsm | December 14, 2010 2:11 PM | Report abuse

I'd much rather have Liberty than assured Health Care. What would the supporters of the mandate be willing to give up for assured heath care?

There has to be a trade off. For example, several times in the history of the nation we has instituted a draft. The reasoning was (supposedly) for national security. So, we accepted slavery, in the form conscription, for the benefit of national security.

Would you accept slavery as the price for health care? If not, then what would accept? But remember, the moment you give the government the power to do the thing you want you also give it the power to do things you don't want. It's a dangerous double edged sword.

As a side note: I have always thought it was strange that the first time we ever used a draft was during the Civil War. In a sense the Union fought against slavery by using slave labour via conscription.

Posted by: BradG | December 14, 2010 2:13 PM | Report abuse

Liberty? If you have no health insurance and you go to an emergency room, you're not going to be turned away. You'll receive care. Someone will have to pay for that care, and that someone will be your fellow citizens. Are you at liberty to saddle them with the cost of your health care without giving them some say in the matter?

Posted by: jlhare1 | December 14, 2010 2:18 PM | Report abuse

Patrick Henry: "Give me Liberty or give me Death!"
Barack Obama: "Psst! Trade me your Liberty for Healthcare."
And of course, after you make that trade, Obama controls the healthcare you get or don't get.
I choose Patrick Henry over Barack Obama.
For generations, Americans have made the same choice.
Will this be the generation that trades their Liberty for Government entitlements?
Don't count on it.
Ghandi said: 50,000 British can't rule 400 million Indians against their will.
Federal bureaucrats can't run the US healthcare system against the will of Americans.
If the courts don't bring down this healthcare law, peaceful passive resistance will.
The resistance has begun.
The resistance will prevail.

Posted by: jfv123 | December 14, 2010 2:19 PM | Report abuse

Would a decision striking down the mandatory insurance law actually help the cause of health reform? Mandatory taxes are clearly constitutional, so if the Supremes strike down this requirement, won't the logical solution be a federal program available to all and supported by all via taxes. It seems if we can't make people buy insurance then we are actually a step closer to single-payer, Medicare for all type of thing. This conclusion assumes the status quo in 2009 is unsustainable and evenually the GOP will have to face the problem.

Posted by: outragex | December 14, 2010 2:21 PM | Report abuse

Wasn't the healthcare mandate originally a republican idea proposed as an alternative to "Hillarycare"? Didn't the health insurance industry demand the mandate and then use back channels to fight it tooth and nail? I guess lawyers call that job security. BTW the Virginia attorneys general is a nut job. He's sueing a scientist for fruad because he doesn't "believe" in science. Not fit for public office.

Posted by: lamarilium | December 14, 2010 2:22 PM | Report abuse

Here is a constitutional question. Isn't the judiciary supposed to be non-political? If so, how the heck does this case get assigned to Judge Hudson? He is involved with a Republican consulting firm that represents Sarah Palin among others.

Posted by: cdierd1944 | December 14, 2010 2:30 PM | Report abuse

Good write up, it almost addresses the core issue. Then doesn't.

The core issue in this case is "enumerated government". Mr. Lane correctly grasps what our Founders intended, then lapses into the the needs of a "modern" (whatever that means) government "one shaped by the modern realities of urbanization and industrialization". He then departs completely from the Constitution.

Is Mr. Lane giving the government a blank check to do whatever is needed in spite of the Constitution? Or is he calling for a new Constitution?

Sadly, most of the left really seem to want a new Constitution but lack the courage to call for one. Instead, Mr. Lane and those that share his views would rather twist and mangle the meaning of the Constitution to give the Federal government that blank check and pay lip service to select phrases in the Constitution, when it suits them.

It's very simple people, if you don't like the Constitution, then start lobbying for a Constitutional Convention to draw up the government we "need". If you lack the courage to amend or re-write our founding document, then at least be honest in accepting it for what it says and how it was intended. The alternative is a government that grows without bounds - in that mode, anything is possible.

Posted by: RichmondGiant | December 14, 2010 2:30 PM | Report abuse

DON'T TREAD ON GRANDMA

I agree that taxes should also be voluntary, and I'm counting on the Supreme Court's 5-4 vote striking down compulsory taxation.

We should be able to transfer our income to corporations and the wealthy without having to go through some government middleman!

As for health care, my grandmother never had "health insurance," and she lived to 97 years of age, smoking, drinking and cussing like a sailor her whole life. She also had lots of guns and was always shooting at varmints and passersby from her front porch. She sure didn't need no "Death Panel" to tell her when it was time to go! She simply rested her chin on her double-barrel 12-gauge and blew her brains out. Believe me, it was a mess to clean up, but that's what grandkids are for!

So, don't be thinking "Oh, gee, I'm sick. I think I need to go to the doctor."

Man up, like my grammy!

Posted by: motorfriend | December 14, 2010 2:31 PM | Report abuse

It's funny how "conservatives" never seem to worry about "liberty" when they are violating the Constitution themselves. When Bush are Chaney declared themselves to be above the law, with the power to torture and detain anyone indefinitely with no due process whatsoever, that was perfectly OK with the "freedom-loving" Republicans. When "conservatives" attempt to use the government to impose their religion on people, they claim that the establishment clause either doesn't exist or doesn't say what every legitimate legal scholar says it does.
These people are self-serving hypocrits. They wouldn't know a principle if one bit them in the hindquarters.

Posted by: DaveHarris | December 14, 2010 2:32 PM | Report abuse

I was pleasantly surprised to see an article that rather fairly laid out the opposing positions. Good job Mr. Lane.

Posted by: gregdn | December 14, 2010 2:35 PM | Report abuse

Jesus Christ what bizarre comments about "I'd rather have liberty than health care". What is it with the jabbering set that vomits the abstraction of "Liberty" as a concrete argument to serious issues? Why can't you have both, where not only are you "Liberty'd" all over your body, like a silk "Liberty" sash you can writhe under, but also be healthy and fit as you moan and gasp under your "Liberty" shroud metaphor?

Posted by: fmamstyle | December 14, 2010 2:49 PM | Report abuse

If there were a way that you could guarantee that you won't access the health care system without paying the bill, folks would have a point in objecting to the purchase of insurance. they can't, so they don't.

not buying insurance may not be activity, but going to an ER and expecting care is, and the minute you do that, I can insist that you have insurance.

Unless we repeal the law Reagan signed that tells ERs that they can't turn anyone away because they can't pay. or you wear a bracelet that tells the ambulance to leave you to die. until then, the nonsense about the right not to be made to buy insurance is just that - nonsense

Posted by: JoeT1 | December 14, 2010 2:50 PM | Report abuse

Many people seem to think that the Constitution was created in a vacum: that is, the system of government we created came out of thin air based upon what would be the "best form of government." What people fail to realize is that the Constitution created in 1787, was for the framers in Philadelphia that hot summer, those who ultimately signed the document, and the state conventions that ratified the document, the "best" they could create for its time. In fact, many of the framers (i.e. Madison, Hamilton, Franklin) thought it a very imperfect document.

Yes, the Constitution did create a limited "federal government" with enumerated powers and left the rest to the states. That was because given the feeling in 1787, they needed a strong national government given the failure of the Articles of Confederation, while mantaining state's rights because they feared what the British unitary system had shown them leading up to 1776.

What Mr. Lane, and many conservatives fail to recognize, is that the Constitution has changed in many fundemental ways. There has been a noticeable shift towards greater federal control that began with the policies of Alexander Hamilton, the Marshall Court, the Civil War, 14th Amendment, and various Supreme Court decisions and Congressional action. Many "federalist" conservatives feel that "liberty" is threatened by greater federal control, when history shows us the opposite. It has been the state or local governments that have been a greater threat to individual liberty than the federal government has ever been. Jim Crow, Machine Politics, Corporate control of state governments, are but a few examples. Even Madison in Federalist 10 demonstrated that the rights of the individual were threatened most by a faction within a "small republic" like a state than within the federal government.

There is an irony that the Constitution has survived for so long because it has been able to adapt to "modern" reality, albeit with some real pain (i.e. the Civil War). Conservatives look too much to the Constitution of 1787 to answer the questions for today, when in reality they need to look to the Constitution of 2010. The Constitution of 1787 can not answer the problems of our health care system because such problems did not exist in 1787. We did not have a national market economy to the extent that we do today. Maybe in 1787, 13 ways of dealing with health care would make sense, but in 2010, 50 ways does not and those that suffer is ourselves.

Posted by: smith6 | December 14, 2010 2:54 PM | Report abuse

jfv123, Don't tread on my rights. I do not want your world. I will not allow you or anyone like you to replace what I want with what you demand. It's not me, it's you.

Posted by: fmamstyle | December 14, 2010 2:54 PM | Report abuse

Americans should understand that this is not a question about healthcare. This is a question of whether the government can force a citizen of this country who is doing nothing to do something. In this case, can the federal government force a person to buy something, specifically health insurance.

This question exceeds past aplications of the Commerce Clause in that the previous case of a wheat farmer or pot growers planting crops for personal consuption, entailed a person producing a commodity. But what about a person who decides that they will live their life in peace and die of causes yet unknown without using conventional healthcare resources? Does this person impact anyone but those who knew and cared for him or her? The government of course will argue that millions of people choosing this path will impact society at large because at some point, many of them will use the healthcare system.

But this argument relies on a very slippery slope, because the government could essentially decide that anything a person does not do could impact America in some fashion. There is essentially no check left against, for instance, the government deciding that we must buy cars made in America because it will impact the economy and everyone negatively if we don't.

Make no mistake, the government is in a very new area with this mandate and they know it. I don't think they knew it before (certainly Pelosi didn't understand the ramifications), but they are slowly getting it.

The question is, are we as Americans willing to be forced to buy something we may not want or need? But more importantly, can we be made to do something when we are doing nothing?

Posted by: bencher23 | December 14, 2010 2:55 PM | Report abuse

Of course the Supreme Court will rule the requirement to purchase insurance as unconstitutional. Clarence Thomas' wife openly lobbies against it. Alito and Roberts attend arch-conservative meetings. If I were on Wall Street, I would market a credit default swap to bet on it.

Posted by: Poster3 | December 14, 2010 3:01 PM | Report abuse

The health industry sells their products: surgery, wellness medicine, drugs, critical care, everything. Are we to believe the conservative argument that this product is only available to the wealthiest few in the country? Is that the "Constitutional" argument they foist on us? If so, then I say we go along with the conservative position and deny health care to everyone except those who can afford what the health industry is charging. Let's see how long it takes before their revenues dry up.

Posted by: fmamstyle | December 14, 2010 3:02 PM | Report abuse

The whole trumped up "states rights" notion is an anachronism from a time when states were like individual countries, it took days or weeks to get to the next one over, and people had wholly different identities, ethnic backgrounds, and cultures than those in the next state. Most of that is but a charming bit of history now. Hey what's on sale down at the WalMart? Did you see that story this morning on CNN? No, not the stuff the town crier heard about from the Pony Express rider three days ago. The stuff that happened in Europe two minutes ago I mean.

Can we stop pretending it's 1650 already? Some of us want to live in the 21st century, and in the United States of America.

Posted by: B2O2 | December 14, 2010 3:06 PM | Report abuse

"Americans should understand that this is not a question about healthcare. This is a question of whether the government can force a citizen of this country who is doing nothing to do something. In this case, can the federal government force a person to buy something, specifically health insurance."

You are already "forced" to buy car insurance (liability, anyway) if you want to drive on the streets. It's about living with the other kids in nursery school. Sorry, maybe you didn't attend - which would explain a lot of things you "don't tread on me" folks want to pretend.

Posted by: B2O2 | December 14, 2010 3:09 PM | Report abuse

Charles Lane says: "Opponents of the individual mandate ask: if the federal government can order citizens to buy a certain health plan at a certain price, what's to stop them from ordering us to do almost anything? Supporters ask: if the federal government can't enforce this modest requirement in the public interest, what's to prevent the entire health-insurance system from unraveling?"

In answer to the first question-virtually nothing. If the fed can make you buy something for your entire life simply because you live, there is little else they cannot force you to do or buy.

In answer to the second question, many, many things. And the fact is that "...the entire health-insurance system from unraveling?" was not and is not the pressing problem of our time. To spend a year and a half passing an unnecessary and extremely expensive new entitlement, they could have taken some measures that cost nothing and would actually save money.
They could have enabled interstate competition between insurance providers and some type of tort reform.
Those two would surely provoke lobbyist backlash but they wouldn't have a prayer in today's overall climate.

Posted by: spamsux1 | December 14, 2010 3:10 PM | Report abuse

"The question is, are we as Americans willing to be forced to buy something we may not want or need?"

=======================

I can make a decision about whether or not I want to buy a new iPod, or a dishwasher, or a new car. So I guess I should also decide whether or not I should just die from an ailment, knowing full well there is an easy cure for it. Welcome back to the 15th century.

Posted by: fmamstyle | December 14, 2010 3:11 PM | Report abuse

I think that if the federal government can draft folks to die in a war they have the power to institute ObamaCare. So Congress decides they want to raise a healthy army and part of that process is single-payer.

Republicans need to get back to their basics of abortion and & gay marriage.

Posted by: Maddogg | December 14, 2010 3:11 PM | Report abuse

Charles Lane says: "Opponents of the individual mandate ask: if the federal government can order citizens to buy a certain health plan at a certain price, what's to stop them from ordering us to do almost anything? Supporters ask: if the federal government can't enforce this modest requirement in the public interest, what's to prevent the entire health-insurance system from unraveling?"

In answer to the first question-virtually nothing. If the fed can make you buy something for your entire life simply because you live, there is little else they cannot force you to do or buy.

In answer to the second question, many, many things. And the fact is that "...the entire health-insurance system from unraveling?" was not and is not the pressing problem of our time. To spend a year and a half passing an unnecessary and extremely expensive new entitlement, they could have taken some measures that cost nothing and would actually save money.
They could have enabled interstate competition between insurance providers and some type of tort reform.
Those two would surely provoke lobbyist backlash but they wouldn't have a prayer in today's overall climate.

Posted by: spamsux1 | December 14, 2010 3:11 PM | Report abuse

Is not the answer to repeal the R. Reagan approved law that requires ERs to provide health care and instead allow hospitals, ambulances, and health care providers to refuse care if they are not going to be paid. If we as a country mandate care at its citizen's expense, but if citizens cannot mandate that people have the means to pay for care, should the country not remove the mandate for care?

Posted by: alfarmerboy | December 14, 2010 3:14 PM | Report abuse

Is not the answer to repeal the R. Reagan approved law that requires ERs to provide health care and instead allow hospitals, ambulances, and health care providers to refuse care if they are not going to be paid. If we as a country mandate care at its citizen's expense, but if citizens cannot mandate that people have the means to pay for care, should the country not remove the mandate for care?

Posted by: alfarmerboy | December 14, 2010 3:15 PM | Report abuse

"Would a decision striking down the mandatory insurance law actually help the cause of health reform? Mandatory taxes are clearly constitutional, so if the Supremes strike down this requirement, won't the logical solution be a federal program available to all and supported by all via taxes. It seems if we can't make people buy insurance then we are actually a step closer to single-payer, Medicare for all type of thing. This conclusion assumes the status quo in 2009 is unsustainable and evenually the GOP will have to face the problem."

That is correct, but the Obama administration clearly wanted to avoid calling this a "tax," because Mr Obama promised not to raise taxes on the middle class. With this medical plan, he's essentially raising everyone's taxes.

Posted by: linguist64 | December 14, 2010 3:23 PM | Report abuse

Fmamstyle didn't really understand the larger question. The question is not "should" one choose inaction, but can they choose inaction. If you are chossing the 15th Century to imply an unenlightened period, then why not cite the Amish in our country, which is obvious more compelling and realistic?

Are you willing to say that the Amish in our country must be forced to make decisions based off of the 2010 world? Well the Obama administration did not think so as they offered exemptions to certain religious and other organizations.

Posted by: bencher23 | December 14, 2010 3:25 PM | Report abuse

This is not rocket science: at present, the cost of treatment for those without insurance is covered by those of us who have insurance, given that most of treatment of the uninsured takes place in exceedingly expensive ER facilities. And this, of course, accounts for the skyrocketing cost of health insurance. Now, I quite agree that if one insists, they should be allowed to opt out of having insurance, just as they can in most states opt out of auto insurance. But that opt-out obviously must come with a trade-off, which is that no medical practitioner or facility can ever be required to treat a patient until he/she has shown proof that he/she has the cash reserves to pay any and all bills. If the uninsured are willing to forgo all treatment except that for which they can guarantee payment, then I have no problem with an opt-out clause. This, of course, requires immediate repeal of the Reagan era law that says ERs must treat everyone regardless of ability to pay, but, gosh, isn't that what liberty is all about? Indeed, it gives new meaning to the phrase "Give me liberty or give me death"!

Posted by: james1939 | December 14, 2010 3:29 PM | Report abuse

Hmmm. Most of the country is insured through their employer based programs. Wages have been flat for a long time (adjusted for inflation) mostly due to rising premiums that employers must absorb and are now passing on to employees. By requiring those who can afford but don't have health insurance to pay for coverage, its supposed to lower premiums. This in turn lowers the burden on employers and thus wages can grow again. Doesn't that sound nice? Its a net gain here people. People w/o health care get coverage, people already paying get to keep more of their money. Why is that hard to understand. What the fight is really about is the mandate that health insurers actually use 85% of their premiums to cover actual healthcare costs.

Posted by: lamarilium | December 14, 2010 3:44 PM | Report abuse

It's not Patrick Henry who should be quoted, but Thomas Jefferson. He said that a man should be free to do as he wishes, so long as he does not "break my bone or pick my pocket". That fellow who takes works the system by not paying insurance and then shows up at an emergency room demanding health care is picking the pockets of all those responsible folks who have chosen to pay insurance. If you want to know what the founding fathers might have expected of the citizens related to this health care debate, Jefferson's remark is closer to the bullseye than "give me liberty or give me death", which was uttered in an entirely different context.

Posted by: truthwillout | December 14, 2010 3:56 PM | Report abuse

the government forces us to pay for social security and Medicare even though we may not want it, or ever live to use it. The state government make me pay for auto insurance even though I am a safe driver with no accidents in my 45 years of driving. But the government can't make us pay for healthcare?
You must be joking.

Posted by: hairman | December 14, 2010 4:02 PM | Report abuse

The Supreme Court should be declared as enemy combatant and should be treated as such.

Posted by: bluethunder1 | December 14, 2010 4:10 PM | Report abuse

this issue is more political than anything else. the judge should have recused himself in that he owns a percentage of a consulting firm that was paid to lobby against the health care bill. now he gets to decide a legal case that he has been paid to stop. can you have a better defination of conflict of interest.

Posted by: blinwilly | December 14, 2010 4:10 PM | Report abuse


Nicely written to show both points of view.

The stickler however is the Constitution and it’s mechanism for change- AMENDMENTS.

If liberals want to make changes, follow the proper procedure and AMEND it. Until then we must stick with what the Constitution says and the SC will have to rule the mandate unconstitutional especially in light of the fact that a proper mechanism exists in TAXATION to implement this law.

There is NO reason to violate the Constitution when the law can be been done properly!


Posted by: bcarte1 | December 14, 2010 4:13 PM | Report abuse

the government forces us to pay for social security and Medicare even though we may not want it, or ever live to use it. The state government make me pay for auto insurance even though I am a safe driver with no accidents in my 45 years of driving. But the government can't make us pay for healthcare?
You must be joking.

Posted by: hairman

=========================================

This whole thing comparing the mandate to auto insurance is getting really, really effing old. Once again, the requirement for auto insurance is not only predicated on a person owning and operating a car, it's also acceptable within states' constitutions. The question here is whether the US Constitution is framed similarly.

BTW Mr. Lane, great summary of the issue.

Posted by: bbface21 | December 14, 2010 4:16 PM | Report abuse

Posted by: james1939 …... Now, I quite agree that if one insists, they should be allowed to opt out of having insurance. But that opt-out obviously must come with a trade-off, which is that no medical practitioner or facility can ever be required to treat a patient until he/she has shown proof that he/she has the cash reserves to pay any and all bills. If the uninsured are willing to forgo all treatment except that for which they can guarantee payment, then I have no problem with an opt-out clause.
==================

What about the 50M illegal aliens who receive no benefits through their employers (for obvious reasons) and their illegitimate anchor babies?


Because they are illegal aliens (according to Obama) they can't legally take advantage of the tax funded discounted insurance plans offered on the exchanges for themselves or their children.

Because they are illegal, they will be paid under the table so businesses are not penalized and will not be able to afford insurance.

BUT .... while Obama rules, only citizens and legal residents will be mandated to buy insurance while we pay an additional add-on to our premiums to cover the costs of the illegals who will continue to get their free health care at our local ERs

Posted by: asmith1 | December 14, 2010 4:20 PM | Report abuse

We are spending so much on health care that if we don't fix it, we won't have money for anything else. It's time for the freeloaders who want to pay for health care only when they inevitably need it (and go broke trying to preserve their health, forcing the government to pick up any subsequent costs through programs for the poor) to start paying, because keeping hospitals and doctors and other health care personnel and their expensive equipment available just in case a person needs care costs money every day, not just when that person is ill. And for those who think they will never be ill, there's a first time for everything, and it will happen to them eventually.

Posted by: CMNC | December 14, 2010 4:22 PM | Report abuse

Constitutional or not, Obamacare simply cannot work. It is constructed on the awful crazy-quilt of the present messed- up system, with the greedy foxes of the insurance industry in charge of the henhouse. Better we scrap the whole thing ASAP and go to a single-payer system. Medicare has been with us for 44 years now, and nobody has challenged its constitutionality.

Posted by: sameolddoc | December 14, 2010 4:37 PM | Report abuse

To help everyone here with the confusing title.

The Judge found it UNCONSTITUTIONAL.

All the liberals with their fancy attempts at lawyer speak may make it confusing for some of you....

but the judge found it UNCONSTITUTIONAL.

did NOT make a big deal about it... did not distress about it... did not claim to be conflicted about it....

didn't seem all that "difficult" a question for the judge to answer.

Posted by: docwhocuts | December 14, 2010 4:38 PM | Report abuse

docwhocuts --

Really hate to burst your bubble, but the judge found one teeny-tiny part of the bill unconstitutional (and other judges, even in Virginia, disagree). That part appears to be rather insignificant within the larger picture.

Frankly, I find it ironic that those who don't want to be "forced into" getting health insurance and then go to the emergency room when they're sick, are "forcing" the rest of the population to pay for that visit -- and emergency room visits are artificially high for a reason.

*say, isn't that, um, SOCIALISM????*

Cool.

Posted by: ftb3 | December 14, 2010 4:47 PM | Report abuse

dear ftb3:

the little mandate part is teeny-tiny?

don't bother talking to me again.... if you think that way, we have nothing to discuss.

I will educate you as you can tolerate, but I will not be listening to you about anything ever...

teeny tiny.... the entire bill rests on the mandate.... you're so simple.

Posted by: docwhocuts | December 14, 2010 4:50 PM | Report abuse

B202-No, car insurance is not a good example. If you use public transportation, ride a bike or walk places, you do not need car insurance. This is the example used by some who have not thought this out very far. Classifying me as some sort of "Don't Tread on Me" type is I guess a personal attack. I'm guessing by your last statement that you did attend Nursery School and further that it was not that long ago.

Posted by: bencher23 | December 14, 2010 4:58 PM | Report abuse

If the GOP put as much energy into solving the health care mess as they have in trying to stop its solution, we probably wouldn't even be having this debate.

Posted by: MidwaySailor76 | December 14, 2010 5:06 PM | Report abuse

dear midwaytointelligent:

"its solution"

and there lies the great fallacy of logic.

Some idiots think this law is a solution? Some idiots shouldn't be voting.

Posted by: docwhocuts | December 14, 2010 5:12 PM | Report abuse

It's funny how "conservatives" never seem to worry about "liberty" when they are violating the Constitution themselves. When Bush are Chaney declared themselves to be above the law, with the power to torture and detain anyone indefinitely with no due process whatsoever, that was perfectly OK with the "freedom-loving" Republicans. When "conservatives" attempt to use the government to impose their religion on people, they claim that the establishment clause either doesn't exist or doesn't say what every legitimate legal scholar says it does.
These people are self-serving hypocrits. They wouldn't know a principle if one bit them in the hindquarters.

Posted by: DaveHarris | December 14, 2010 2:32 PM
========================================
Get a clue Dave and the rest of the Liberals who continue to believe in this "Roswell".

It was all legal. Everything. The Congress voted on all of it, including the vast majority of Democrats.

The reason Bush and Cheney will never go to trial is that persons such as Pelosi will be forced to disclose their knowledge of, and their approval of, these programs.

And while Bush and Cheney may have "tortured" people who were hardly innocent victims, ORambo and Biden continue to assassinate thousands of innocents via the drone program.

What a party Dupe!

Posted by: krankyman | December 14, 2010 5:14 PM | Report abuse

Well stated. The article provides a sober view of the issue without all of the hyperbole that usually drives this debate.

Posted by: outcast | December 14, 2010 5:16 PM | Report abuse

Without forcing all to pay, it will fall apart.

The only way to do this is to create a new amendment to the Constitution. Not likely.

Better to seek solutions to reducing the cost of HC. That is addressed only superficially in the bill.

Poorly thought out bill, IMHO.

Posted by: primegrop | December 14, 2010 5:19 PM | Report abuse

Principles matter not to the left, particularly Constitutional principles. In their stampede to address their "concern of the day", real or imagined, they will throw away any shred of freedom that we have. Just as long as it feels good in the moment.

It is shameful to see our Republic, that so many fought and died for, squandered this way.

Posted by: concernedcitizen3 | December 14, 2010 5:20 PM | Report abuse


" Most problems are national problems, and therefore it makes less and less sense to address them on a state by state basis, or to leave them up to individuals."

The above assertion may or may not be true. Regardless, it does not alter the wording or intent of the Constitution. The courts should be a conservative institution, otherwise why would they exist. Their function is to hold present governments to the intent of the adopters of the Constitution. Courts have already trampled all over the rights of states by using the commerce clause to aggrandize federal authority. Enough is enough.

Posted by: edbyronadams | December 14, 2010 5:20 PM | Report abuse

It's funny how "conservatives" never seem to worry about "liberty" when they are violating the Constitution themselves. When Bush are Chaney declared themselves to be above the law, with the power to torture and detain anyone indefinitely with no due process whatsoever, that was perfectly OK with the "freedom-loving" Republicans. When "conservatives" attempt to use the government to impose their religion on people, they claim that the establishment clause either doesn't exist or doesn't say what every legitimate legal scholar says it does.
These people are self-serving hypocrits. They wouldn't know a principle if one bit them in the hindquarters.

Posted by: DaveHarris | December 14, 2010 2:32 PM
========================================
Get a clue Dave and the rest of the Liberals who continue to believe in this "Roswell".

It was all legal. Everything. The Congress voted on all of it, including the vast majority of Democrats.

The reason Bush and Cheney will never go to trial is that persons such as Pelosi will be forced to disclose their knowledge of, and their approval of, these programs.

Posted by: krankyman |

=======================================

Despite the fantasies of the far left that matter of the Bush administration is closed because there's nothing there.

It reminds me of my favorite line from the Law and Order series when ADA McCoy said he would indict a ham sandwich because at least that had some meat on it.

Posted by: bbface21 | December 14, 2010 5:26 PM | Report abuse

This healthcare bill does nothing to really change healthcare. It does not attack the cost of healthcare, it tries to regulate health insurance. It does nothing to reduce healthcare costs such as mitigate tort that drives up a doctors, hospital or nurses' cost of malpractice insurance. It does nothing to invest in pharmacutical research. It does nothing to invest in medical technology where an instrument or a laboratory costs millions. It attacks the individual, forcing them to buy insurance, it threaten a "penalty" (was called a tax until someone realized that was illegal) if they do not. People I am all for doing something about our health costs but not at the expense of my taxes or my liberty or rights. And for gawd sake quit trying to compare it with auto insurance, mandatory auto insurance at the state level mandates liability insurance to protect the other guy in your wreck. Give me a break. The author is another guy trying to say the Constitution is wrong or at least any one that is interperting it other than the way he interperts it is wrong.

Posted by: staterighter | December 14, 2010 5:27 PM | Report abuse

Fairly well written. However, there was a time in the "modern era" when those who wished for something different went about that by amending the constitution. Now, the process is simplified: just find 5 justices who are creative in their use of the English language.

As for the phrase "yesteryear's autonomous yeoman farmers" to describe the dynamic individuals from all walks of life who brought forth the freedom that Obama hates, I would admonish the author to revisit his prejudices.

Posted by: Cdgaman | December 14, 2010 5:57 PM | Report abuse

Here's the contradiction:
The claim is that by forcing people to purchase health insurance, we are protecting ourselves from "free riders".

But at the same time, the law generously expands medicaid, and subsidizes the purchase of insurance for a large percentage of the population.

So, how are we ridding ourselves of the free rider problem? If we are paying for their health care through insurance subsidies, they are still free riders.

Ultimately, all the bill does is remove the incentives to reduce costs by transferring payment responsibility to a third party. Instead of the uninsured individual *attempting* to pay for what he can, and minimize his health care consumption, we give him a blank check to spend what he likes and have taxpayers pick up the bill by paying his insurance premiums.

Posted by: tjk1 | December 14, 2010 6:25 PM | Report abuse

Seems to be a "difficult" question for those that lost.

Mandated purchase of any good, at any time.... was struck down.... this is not "difficult" at all.

Losers make it difficult... take your loss and make a better law.

Posted by: docwhocuts | December 14, 2010 6:29 PM | Report abuse

I submit you are absolutely wrong in your opinion. The Judge's background suggests he might have considered recusal, so he was predisposed to find the law unconstitutional. Yet he found only one part of the law unconstitutional, and declined to stop its implementation in any respect. (In doing so, he also made a rather egregious error in legal reasoning.) Were the constitutionality as murky as you try to suggest, he would have done more.

Posted by: fred110 | December 14, 2010 6:51 PM | Report abuse

Comparing other nations single payer systems or National Healthcare plans is a 'red herring' comparison.
Being forced to pay Private ... for profit suppliers is a Very, ... different issue.
With no checks or balance applied to the 'board' of trustees to any private supplier, patients ... and doctors, are subject to the whims of unelected, profiteering business types.
I would absolutely love to head a business that can 'mark up' it's prices .... at will.
The USA has to decide. Is health care a right? ... Or is it a privilege?
If .... it is a privilege, then only those citizens who can afford it, will have 'real time' health care.
This is the "system" we now have.

In the 'crucible' of this arena, 'politicians' seem to be all for punting ... the "problem" ... into the future. ....... How sad.

It's "gut check" time Congress. ... Just do your job.

Posted by: deepthroat21 | December 14, 2010 6:55 PM | Report abuse

The individual mandate was originally a Republican idea, and no, team Obama did very little to sell it is an attack on free riders.

Posted by: scientist1 | December 14, 2010 7:39 PM | Report abuse

All health insurance qualifies as "interstate commerce". For example, I am insured in DC, but if I go to a hospital in MD, VA, or any other state, my care is covered by my insurance.

As for the Liberty issue, I say fine. If you want the "freedom" to opt out of buying insurance even though you can afford it, I say that is your right. We should create a 3 tier system.

Tier 1 will be those who can afford to purchase insurance, and do. Their premiums will pay for their care as well as care that is not covered by those insured in tier 2.

Tier 2 will consist of those who want insurance but cannot pay or cannot pay full price. This group will pay what they can afford, from nothing (medicaid) to near full price. Their insurance will pay as much as it can. Additional cost will be picked up from Tier 1.

Tier 3 will consist of those wishing to exercise their "freedom" not to purchase insurance. They will not be required to hold any insurance, however they must be able to offer up proof of ability to pay out of pocket before any care is rendered to them. This means 911 systems and hospitals alike will be allowed to check bank statements, assets, and credit histories and will be allowed, at their discretion, to refuse care if they are unable to pay.

Tier 3 members however, will be required by law to hold either Tier 1 or 2 insurance for any minor children under their care until such time as that child has reached the age of legal consent in their state, at which time that child will be able to choose whether to become insured or not.

Additionally, Tier 3 members will be allowed to purchase insurance at any time of health, however shall not be permitted to do so during the course of any medical treatment regimen, including ER visits, overnight hospital stays, or during prolonged treatment for any chronic disease or condition.

Further, any person in Tier 3, during a time of sickness, shall at the local/state/federal govt's discretion, placed in a quarantine until healthy (or dead) so that their decision to not purchase health care shall not pose a public health risk, especially for those who do have health care, and shall be made legally liable for spread of any disease caused by their decision to forgo insurance.

As a healthcare provider, I cringe at the idea of turning someone away because they cannot afford treatment, and as an unashamed liberal I cringe at the idea of denying someone access to medical care simply because they cannot afford insurance. As such, I have no issues with my tax dollars going to medicaid/medicare, or the higher prices I pay for insurance to help those who cannot afford as much.

However, if those who can afford insurance believe that it violates their individual liberty to be "forced" to purchase it, then I would argue that it violates my individual liberties to have the money I pay into my insurance premiums go to pay for medical treatment (of which I receive no benefit) for those who simply choose not to be insured

Posted by: johnqpublic1 | December 14, 2010 7:55 PM | Report abuse

>You are already "forced" to buy car insurance (liability, anyway) if you want to drive on the streets. It's about living with the other kids in nursery school. Sorry, maybe you didn't attend - which would explain a lot of things you "don't tread on me" folks want to pretend.

That's liability insurance. It is in case you hurt someone else. it is not to pay for your own car repairs when you get in an accident.

Posted by: tjk1 | December 14, 2010 9:26 PM | Report abuse

The types of free samples you can get from "123 Get Samples" are shampoo, coffee, diapers, medicine, greeting cards and more.

Posted by: merelevi | December 15, 2010 1:40 AM | Report abuse

hairman,

My wife does not work, so she does not pay social security and medicare. My grandfather does not drive so he is not forced to buy insurance. Your examples are not the same, as there is a choice. In what way does the mandate allow you to choose not to do it? It doesn't.

Posted by: Bosoxfan | December 15, 2010 3:15 PM | Report abuse

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