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It's on! 13 state attorneys general challenge healthcare reform law [UPDATED]

Bill McCollumThe gears of justice may turn slowly on the average day, but apply some political grease and the machinery springs to life. Tuesday morning the attorneys general in 13 states, led by former Republican congressman Bill McCollum in Florida, filed suit in Pensacola seeking to block implementation of two central pieces of the healthcare reform bill that President Obama just signed into law.

In particular, the AGs' complaint alleges that Congress violated Article I of the Constitution and the 10th Amendment by requiring all Americans to obtain insurance coverage and by  enforcing the mandate with tax penalties (a maneuver that, the AGs say, violates the constitutional ban on direct taxes). It also contends that the expansion of Medicaid violates the 10th Amendment by turning a voluntary partnership into a "compulsory, top-down federal program in which the discretion of the plaintiffs and their sister states is removed." The law, it says, turned Medicaid into a bait-and-switch, trapping states in a program they can't control or afford.

Finally, it argues the law contains unfunded mandates, particularly in the creation of state insurance exchanges for individuals and small groups to shop for policies. Those unfunded mandates violate state sovereignty under Article IV of the Constitution, the lawsuit contends.

The complaint asks the court to declare the entire law invalid.

I'm not a constitutional lawyer, so I'm not going to try to predict the chances of success here. Instead, I'll just point once again to Tim Noah's piece from Slate last year that explored the legality of the mandate. He concludes that it's constitutional, but his piece suggests it's no slam dunk. On the other hand, an Op-Ed by Edwin Chemerinsky, dean of the UC Irvine Law School (and noted liberal), in the Los Angeles Times claimed that the House and Senate reform bills were "unquestionably" constitutional.

If any of you readers are constitutional scholars, I'd love to hear your take on the specific issues the suit raises. If you're only pretending to be a constitutional scholar, please be clear about that too.

And just for the record, one of the AGs joining McCollum's lawsuit was a Democrat, albeit from Louisiana, where the partisan lines are defined a bit differently than they are in many other states. Perhaps the six other GOP attorneys general around the country are working on a lawsuit of their own.

Updated, 3:40 p.m.: In fact, at least one of them was. Virginia's Republican attorney general filed a separate suit this afternoon in U.S. District Court in Richmond. The lawsuit argues that the individual mandate is an unconstitutional "citizen to citizen subsidy or redistribution" in violation of Congress' enumerated powers under the Commerce Clause.

Updated, 5:54 p.m.: There's been an excellent discussion of the issue over at the Volokh Conspiracy, which defies ideological characterization. On Monday David Kopel argued that Congress overstepped its bounds, while Orin Kerr said the chances of the mandate being upheld were close to 100%. Today, Jonathan Adler was more iffy, although he generally agreed with Kerr.

Photo: Florida Attorney General Bill McCollum. Credit: AP Photo / Phil Coale

-- Jon Healey

 

Comments () | Archives (82)

The comments to this entry are closed.

Heather

Obama is a Constitutional law scholar. You can be sure that this is constitutional.

Jon

Whether or not it is constitutional isn't the question. Don't you think that the more important question should be whether we ever wanted this. I don't want my healthcare controlled by a government that can barely keep itself afloat our national debt isn't enough apparently we need more. To me and many of the people I have talked to worry that this is just start of all our other freedoms disappearring. No government has the right to tell a free person that I have to have anything that personally affects me without my say.

Trencher

I'm not a Constitutional law scholar, but I can read. No where in the constitution does innumerate these powers to the federal government. So no it is not constitutional.

10th Admendment
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.

Enough said

Jared Sichel

I'm no constitutional scholar, but the constitution isn't too complex. I think there are two simple reasons that the individual mandate is unconstitutional.

1) All rights not explicitly given to the federal government are reserved to the states. There is no explicit right for the federal government to mandate the purchase of a product.

2) This does not fall under the power to "regulate interstate commerce". First, health insurance policies are legally banned from selling across state lines, meaning all health insurance is intra-state. Also, the constitution only allows the regulation of "commerce", meaning "activity", not the regulation of the "inaction of commerce".

as

Its not constitutional and the government needs to stop trying to control the affairs of ordinary Americans. I am going to laugh at Obama when law is found unconstitutional. He needs to stop "helping" Americans. Ronald Reagan once said the nine scariest words in English are " I'm from the government, and i'm here to help"

TJ

Jared is correct, and there is a precedent already: The "Sick Chicken" case that brought down FDR's National Recovery Administration (NRA). Hopefully someone is paying attention to history.

JL

You don;t have to be a constitutional lawyer to understand that the commerce clause just regulates commerce not the "absence of commerce"...translation...you can;t force someone to buy something they don;t want nor need for the "greater good" (pardon my laughter)...if the courts allow that one..then basically the entire US economy could be nationalized tomorrow (under the commerce clause for the "greater good" )by Obama and Pelosi and there would be nothing we could do about that. These clowns have overreached this time and I hope the courts do their job and protect our constitution and the founders intent with the commerce clause. I don;t think the entire law will be declared invalidated..but I do expect at the very least that the court requests (requires) the individual mandates to be modified to make them optional (ie no forced participation).

Caleb

Hooray Jon! I agree, me and my family have strong concerns over our freedoms. I thought the patriot act was bad enough, but now we're being forced to buy into a government program on top of paying taxes for it?

Rasmussens polls show that the people are not in favor by their survey methods. Shame on our Congress for not properly representing us, and instead representing a partisan agenda.

I'm proud to see our states standing up to the burdens and disrespect our federal government has absolutely crushed them with over the last decades.

Robert A. Heinlein:
"There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him."

Benjamin Tucker:
"To force a man to pay for the violation of his own liberty is indeed an addition of insult to injury."

Winston Churchill:
"There is no such thing as a good tax."

Winston Churchill:
"We contend that for a nation to try to tax itself into prosperity is like a man standing in a bucket and trying to lift himself up by the handle."

Benjamin Franklin, Poor Richard's Almanac:
"It would be a hard government that should tax its people one-tenth part of their income." Yeah, if it were only 10%. . .

JL

BTW...where is the ACLU protecting our civil liberties..against government mandates that violate them???
Govt forcing citizens to buy something is taking away personal choice and freedoms...I guess liberals are only against gov;t tyranny when it doesn;t agree with their politics or results are not to their liking.

John

As if state legislatures never approved unfunded mandates. Take away unfunded mandates and there'd be no reason for the Texas Legislature to meet.

liz

I thought the GOP hated lawyers/frivolous lawsuits and was all about tort reform or was that just a talking point used to score points with no substance behind such claims?

JL

Liz and all you libs out there...stop trying to make this about the GOP vs the democrats...in reality this is about a small group of progressive leaders (not JFK type dems but closer to Marx) that have unfortunately obtained power in Washington and are trying to transform this country into a model that looks nothing like the founding fathers wanted nor our Constitution perscirbes. Proof of this is the fact that you had bi-partisan opposition to this bill...there are still some democrats that are not progressives in the party.

andrew nelson

And Jon,

If you're going to point to leftist sources for legitimacy for this unconstitutional piece of trash the Democrats call a law,

let's look at a rightist source and compare the two...

http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional

But, cut to the chase:

Two simple reasons that the individual mandate is unconstitutional:

1) All rights not explicitly given to the federal government are reserved to the states. There is no explicit right for the federal government to mandate the purchase of a product.

2) This does not fall under the power to "regulate interstate commerce". First, health insurance policies are legally banned from selling across state lines, meaning all health insurance is intra-state. Also, the constitution only allows the regulation of "commerce", meaning "activity", not the regulation of the "inaction of commerce".

Brian

Liberty is defined as
1.
a. The condition of being free from restriction or control.
b. The right and power to act, believe, or express oneself in a manner of one's own choosing.
c. The condition of being physically and legally free from confinement, servitude, or forced labor. See Synonyms at freedom.
2. Freedom from unjust or undue governmental control.
3. A right or immunity to engage in certain actions without control or interference: the liberties protected by the Bill of Rights.

I would say that mandating a financial burden on a citizen of the United States steps all over my bill of rights as an American!!! Nancy Pelosi stated that healthcare is a right. Rights are not things that are imposed upon others!!!

Alvin E

Health care is a right only in advanced first-world countries, not in the U.S.

andrew nelson

"Health care is a right only in advanced first-world countries, not in the U.S.

Posted by: Alvin E | March 23, 2010 at 01:47 PM

---------------------------------------------------------

Do you mean those advanced socialist first-world countries that we subsidize in defense spending, protect against Nazis, Communists, Islamofacists, and terrorists, spend all of our treasure rebuilding their societies, so that they can come over here, for the best medical care in the world, instead of waiting in long lines over there, for barely adequate medical care?

You mean those first-world countries?

Bud Winterstein

Barack Obama taught constitutional law at the University of Chicago, one of the premiere law schools in this country. I know you probably can't just ask him, but it's a pretty safe bet that he believes it passes muster.

andrew nelson

"Well, if Barack Obama taught constitutional law at the University of Chicago, one of the premiere law schools in this country. I know you probably can't just ask him, but it's a pretty safe bet that he believes it passes muster."

Posted by: Bud Winterstein | March 23, 2010 at 02:21 PM


Well, let's ask him this:

Is it true they added $10 Billion Dollars to the IRS to assign 16,000 IRS agents to enforce mandatory premiums to private insurance companies (you know, those evil guys)? (YES)

Is it true that if you don't pay a premium you can be fined $780 dollars a month for each and every month you don't pay a premium to a private company? (YES)


Is it true that if you don't pay this fine to the IRS, you can go to jail for up to a year and pay an additional $25,000 fine, plus all the other fines you didn't pay? (YES)


Is it true that the IRS can sieze your property, your house, your car, any tangible asset of value, to pay off your fines? (YES)


Is it true that this Bill of Attainder really passed a Democrat congress, senate, and was signed by a Constitutional Scholar Democrat President? (YES)


If someone, say a President of The United States, swore an oath to Protect and Defend the Constitution of the United States, and was a constitutional scholar, and knowingly and willing participated in creating an illegal breach of that same constitution, is that a "High Crime or Misdemeanor", as in an impeachable offense?

Arabella

God , these guys are sore losers and hypocrits and totally unconcerned about the needs of the American people and the abuses & discriminatory insurance practices, , annual preventable death rates, provoked middle-class medical bankruptcies, unsustainable escalating prices, suffering Medicare and fiscal perils for US economy which the dysfunctional health care system represents.

This is a 100% political move. According to Len Nichols, New America Foundation, the individual mandate was originally a Republican idea and in 1993, four current GOP senators, Orrin Hatch, Chuck Grassley, Christopher Bond & Robert Bennett co-sponsored a bill with an individual mandate. Now, they've mobilized GOP state AG's to sue, just in a last minute bid to defeat the Democrats not because they believe it's unconstituional!!

andrew nelson

"God , these guys are sore losers and hypocrits and totally unconcerned about the needs of the American people "

Actually, this isn't a Republican Democrat thing. I will confess my secret agenda right now, to all who are interested. This is simply one individual American concerned about losing a constitutional right.

I don't want to see this stand, because the next thing this arbitrary, tyrannical congress can do, is make me buy a union made GM or Chrysler car, maybe even an electric one, 'for the good of the country and the environment'.

I simply hate GM and Chrysler cars, because of the government takeover of private car companies, and I sure as hell don't want an electric car.

Ken

I wish you people would stop crying abou this old myth about how, "All our freedoms are going away", it's just as lame as, "The illegals are taking all the good jobs"! Please shut up already!

Deal with the changes that are going on, we went overboard on one end & now there's a correction going on to bring things more in balance.

Sailaway2C

For God's sake, don't buy an electric car you dim wit! However, those of you who don't want to be forced to purchase insurance would rather clog the E.R for hours with your flu symptoms and then likely not pay the bill thus forcing the Federal government to give the hospital Federal money for some of your uncompensated care so the hospital doesn't go out of business. The lack of knowledge of just how things work never ceases to amaze me when reading the rantings of the tea party fanatics or the "less government" right who historically have grown the government when in power to the point of the government breaking into pieces. Other countries who view themselves as democratic and not all in Europe by any means have laws requiring those who can afford insurance to buy insurance. It works and if you blow hards would do at least a little research further than wathcing FOX news, you might realize that it will of course cost money, but it's cheaper to provide pre-natal care to an uninsured woman than to pay for 3 month care for her pre-term baby in the NICU. Wayyyyy cheaper. Think of something or someone other than yourself for once.

Jon Healey

@Andy -- I hate to repeat myself, but since you don't mind posting the same erroneous information over and over, I guess I have to.

You said, "they added $10 Billion Dollars to the IRS to assign 16,000 IRS agents" -- That's false. There's no money for the IRS in the bill. Period. No such provision exists in *any* bill.

You said, "you can be fined $780 dollars a month for each and every month you don't pay a premium" -- that's false. See http://www.opencongress.org/senate_health_care_bill?version=eas&nid=t0:eas:2335

You said, "if you don't pay this fine to the IRS, you can go to jail for up to a year and pay an additional $25,000 fine" -- that's false. See http://www.opencongress.org/senate_health_care_bill?version=eas&nid=t0:eas:2419

You said, "the IRS can sieze your property, your house, your car, any tangible asset of value, to pay off your fines" -- that's false. See http://www.opencongress.org/senate_health_care_bill?version=eas&nid=t0:eas:2420

In short, all these statements of fact in your comment were incorrect. Every one. I'll disregard the bill of attainder nonsense because it's your opinion, not a rebuttable fact, but please -- do you really think your analysis of the law is better than that of Bill McCollum and a dozen other attorneys general? Don't you think they would have raised the issue if it were legitimate?

One more time: In this wonderful era we're living in, anyone with an Internet connection can do original source research. No one has to rely on news organizations like ours to tell them what a bill or a lawsuit says. They can read it for themselves. Andy, please do.

Ed

As I third year law student at Hastings I'm at a loss to comprehend who any legal expert can think a mandate to buy a service is constitutional. Overall consensus of my peers and myself is the interstate commerce clause cannot be used to regulate a mandate. The commerce clause regulates commerce, those who don't partake in commerce can't legally be mandated to so, that is patently obvious and unconstitutional. However, the courts rarely uphold the constitution, which is simply an atrocity.

andrew nelson

@ Jon, again...

I'm not making this stuff up, dude.

http://cnsnews.com/news/article/63181

You're not analyzing the bill in regard to the consequences of the bill. Trend it out.

Everything I said was true.

Ken Grindall

The amount of ignorant whining from libertarians here is frightening. If you buy healthcare now, you are not going to see much change. If you think it is your right never to pay for healthcare based on the commerce clause you are ignoring the reality that everyone passes through the health care system. This is the same denial that led people to smoke pack after pack of cigarettes when they knew it was bad for them. People just don't plan well for the future, and this petulant display of "I'm immortal and I don't need to buy health insurance." Is just ridiculous. I can think of nothing more apt than the commerce clause to explain what happens when a U.S. citizen from one state who is a healthcare freeloader unexpectedly visits an emergency room in another state. There commerce, you didn't MAKE THE CHOICE TO GET SICK...PEOPLE JUST GET SICK. The sooner you realize that, you understand why we have insurance in the first place, otherwise we would just pay as we go, and people would just be left to die. Well, that's what we have been doing for years now, letting people die. I'm really glad you people have been OK with that for this long. Thanks, I guess making you feel immortal is what America is all about.

Jon Healey

@Andy -- Trend it out? You take a real number from the bill -- $187 -- and turn it to $780, then say "Trend it out"? You take a real prohibition in the bill on jail terms and liens, insist that the bill would do just the opposite, then say "Trend it out"? Please. Read. The. Bill.

Ken Grindall

@Andrew Nelson. CNSNews? Are you serious? We're supposed to take this right wing mouthpiece seriously as a source? No wonder you sound like you have nothing but garbage in your head, that's what you've been putting in there. Look, you have the right as an American to be an ignorant fool, but to expect respect from your fellow citizens crosses the line into arrogance. My father died for the flag of this country, and he's buried in Arlington, what is his blood worth to you? He didn't give up his life so his grandchildren could be dropped at will and left to die by a heartless insurance industry. You as a citizen are responsible for your other citizens, they sacrificed for you. Be a man, Andrew, step up and pay your damn taxes like the rest of us.

Richard Deight

Sometimes it is better to do nothing than rush headlong to "solve" problems that, both real and imagined, have a way of solving themselves. Throwing money at a problem, or throwing out the baby with the bathwater, rarely solves the problem.

Let's turn the argument around for a minute: Where in the Constitution does it say we have a right to health care? Where does it say we have the right to life, liberty and the pursuit of happiness at someone else's expense? Or that we have to tolerate this and countless other top-down government mandates, rules, regulations and intrusions into our lives?

The first decade of the new century, regrettably, will be remembered as the turning point when this once-great nation took that final turn to the left, and became the United Socialist States of America. It will be remembered as the decade when the Bobble-heads, led by Nancy Pelosi and Co., were on an unbridled power trip and having a field day.

Lest we forget, the Revolutionary War was a rebellion against just this sort of tyranny. And some ask what the Tea Party movement is all about.

Gilman

Obama was not, and is not, a Constitutional law scholar. He is a lawyer and taught two issues related to the Constitution. He has never specialized in the broad protections covered in the document.

Never argued a case before the Supreme Court, actually only handled about 10 minor cases during his long 3 year stint as a full time lawyer.

Was, and is, more interested in social issues and how to use the law to further his agenda/views.

PNUT

Here's President Obama, a Lawyer, President of the Harvard Law Review, a Constitutional Scholar and Professor, and these clowns think that they know more than him ? About what is and isn't Constitutional no less ? HAHAHA !. Of course they do, he's black...that's how they think. I hear it all the time, Obamas an idiot, Obama is dumb, ,this generally comes from people with an IQ less than half of his, and accomplishments amounting to nothing. We won this election Mr.President, it's about time we start running things. Forget Bi-partisanship, it's impossible when they just want to see you fail. Godspeed Obama.

calfuture

FYI, some of us choose to carry insurance today only for catastrophic situations (which is what insurance was intended for) and not to cover my son's visit to the doctor for the flu. I'd much rather pay directly for small, incidental visits vs. paying extra AND wrestling with insurance forms, only to be denied payment or have my Doctor paid 3 months later anyway. I NO LONGER HAVE THIS OPTION BECAUSE OBAMA HAS DECLARED THAT I MUST CARRY A MINIMUM LEVEL OF INSURANCE THAT MAKES SURE I PAY MORE TO THE INSURANCE COMPANIES. And this is Constitutional????

Mr. Z

It looks like the people of America are fighting a new enemy these days.

The Republican Party is showing a new type of Communisms these days. There acting like CORPORATE COMMUNISTS, siding with BIG Corporations to keep Americans under their control and in their debt!

You want to save Grannies life? Don’t look to Republicans for help; the commies don’t care about granny. She can’t pay her way so “GRANNY MUST DIE”!


The Republican Communist party cares NOTHING about the average citizen! They LIE to their own supporters just to keep them in line and voting for the New Communist party line!!

Your commie leaders Glen Beck & Rush Limbaugh will send you to your death! Glen Beck & Rush Limbaugh had their fellow commies stockpiling guns & ammo to get ready for a bloody fight with the American people!

The Tea Party movement led by Glen Beck & Rush Limbaugh is made up the KKK membership rolls from around the country. There joined by far right wing extremists who require a purity test to join their group, and simple minded home grown terrorists who just hate EVERYBODY THAT’S NOT WHITE & CHRISTIAN. They even use OLD WHITE PEOPLE with nothing better to do but to cry about “STOP Socialized Medicine” on one side. They wave signs that says “Hand off MY Medicare" & "Hands off MY Social Security”

These poor people are just JOKES for late night TV & the Republican Party!


Anybody with an IQ above 40 knows that Medicare is “Government Ran Health Care” yet these people are lied to by the Communist Republican party time & time again!

The American people have spoken and WE have spoken LOUD enough for Washington to hear us over the LIES & DECEIT being told by The Corporate Republican party!

We will keep on fighting the Commies of the Republican Party in every election and every turn.

Each day the American people wake up and we start the fight all over again to keep American safe and to keep the people of America FREE from CORPORATE LIES & DECEIT TOLD BY THE REPUBLICAN PARTY AND THEIR MISGUIDED SUPPORTERS WHO BELIEVE THE LIES THERE TOLD!!

We the people of America work & hope for the day we will defeat the Republican Communist and bring real peace and prosperity once again to the United States of America.

Until that day finally arrives (2012) I and people like me throughout America will rise up and beat back the Republican Communist influence and STOP YOU COMMIES ONCE AND FOR ALL! THE UNITED STATES OF AMERICA BELONGS TO THE AMERICAN PEOPLE AND WE WILL NOT ALLOW YOU TO STEAL IT FROM US!!!

WE HAVE DEFENDED THIS LAND WITH OUR SWEAT, BLOOD & LIVES BEFORE AND WE WILL KEEP ON FIGHTING YOU AND EVERYBODY LIKE YOU!!!

Health Care is not just for the very RICH anymore!!!

The Republicans have spent the last 8 years WORKING ON DESTROYING THE UNITED STATES OF AMERICA SO THEY CAN FORM THE "NORTH AMERICAN UNION"!


TODAY the people have had ENOUGH…your time is limited and your power is eroding. You may THINK nobody noticed that it was the REPUBLICAN PARTY who crashed our economy and CAUSED THIS DEPRESSION!!


You may THINK nobody noticed that It was the REPUBLICAN PARTY who choose to borrow over 100 billion dollars from Communist China so THEY
COULD GIVE IT TO the Leman Brothers, Goldman Sacks, AIG and OTHER Republican supporters!

You may THINK nobody noticed that it was the REPUBLICAN PARTY who FORCED MAIN STREET TO SUFFER THE MOST!


You may THINK nobody noticed that Republicans had French Champaign, Japanese Kobe beef & Russian Caviar for lunch at our expense.


While the American people had grilled (government) cheese on stale white bread with TAINTED TAP WATER!

The American people will NOT FORGET and WE WILL NOT FORGIVE YOU IN THE REPUBLICAN PARTY!!

ad

In Australia we have had a universal health coverage for many years. Everyone has basic free coverage for doctor or public hospital......Americans have no idea. Perhaps get over the pitiful childish politics, get a system in place where all Americans have at least basic coverage. Get a life USA.

Bill Saunders

This "Health Reform" bill is a disgrace. The federal government has no right to tell me that I must enter into a private transaction with another citizen or group of citizens simply because I happen to be alive. This is nothing more than a power grab and is intended to ultimately destroy private insurance in America. Perhaps whether or not this bill is constitutional is irrelevant because the country cannot afford to pay for it anyway...

andrew nelson

@ Ken Grindal: Are you serious? Your father died for the flag of this country, and he's buried in Arlington, what is his blood worth to you? He didn't give up his life so his grandchildren could lose the protection of the Constitution that he swore an oath to defend. You as a citizen are responsible for your other citizens, they sacrificed for you. Be a man, Ken, step up and protect the constitution like the rest of us.

And I noticed you didn't say you gave any skin, like your father did, in the protection of his country.

You serve? Not likely, because you're on the wrong side of this argument.

andrew nelson

@ Jon, Yes, Trend it out. With penalties tacked on, after the total bill is added up, it's easily over that figure and we both know it. You take a fake prohibition in the bill on jail terms and liens, insist that the bill would do just the opposite, then say Please. Read. The. Bill.

I have a better question for you, Jon. What dollar figure of an unconstitutional provision is not acceptable to you? Obviously not 187.00. They bought you cheap.


RainyDayInterns

Did any of these passed without opposition?
- Emancipation Proclamation by Lincoln
- Women's suffrage by Wilson
- Lend/Lease by FDR
- Desegregation of the military by Truman
- Civil Rights Act by Johnson

Who would stand against those today?

Sincerely,
RainyDayInterns

andrew nelson

- Emancipation Proclamation by Lincoln (Republican)
- Women's suffrage by Wilson (Republican)
- Lend/Lease by FDR
- Desegregation of the military by Truman - NO, by Eisenhower, a Republican
- Civil Rights Act by Johnson - Only with Republican help, Southern Democrats opposed it, and it would have failed unless passed by Republicans.

The problem with this bill is that it's unconstitutional. But worse than that, it doesn't solve the problem. The horrible means to a good end, doesn't get us any closer to a good end. It just makes everything else terrible.

If you support this bill, you support giving up fundamental individual rights, and no end, no goal, is worth that. Nor does it compare with all of these emanicpating milestones in individual rights. It threatens them.

Scott

Heather writes...

"Obama is a Constitutional law scholar. You can be sure that this is constitutional."

Pffft. #1 Obama is about as much of a Constitutional Law Scholar as I am an expert an quantum mechanics. #2 Even the Constitutional law experts don't agree whether it is or is not Constitutional. However I hear a news report this morning that five Supreme Court Justices have indicated an interest in hearing the case. If they pull rank and fast track it to the SCOTUS you can bet they are only doing so to kill it.

Health Reform

I do agree with some commentators that this is not a healthcare reform but health insurance reform which is mandated to everyone. This by itself is an imposed on us without our direct approval. I hope this now law can be re-appealed.

David

Wasn't there a case where the SupCt said that congress could control the tomatoes you grow in your garden, under the commerce clause?

andrew nelson

Mr. Z said :

"You may THINK nobody noticed that Republicans had French Champaign, Japanese Kobe beef & Russian Caviar for lunch at our expense."

"While the American people had grilled (government) cheese on stale white bread with TAINTED TAP WATER!"

Huh? Los Angeles tap water isn't safe to drink? What? And what's wrong with grilled (government) cheese on stale white bread?

Because it's government?

So, join the Republican Party, eat Kobe Beef & Russian Cavier... don't join the Republican Party, eat grilled (government) cheese on stale white bread with tainted tap water...

Wait a minute... let me think what party I want to choose...

David_U

IANAL, so my opinion.

It is no more unconstitutional than Social Security and medicare, both of which you are required to buy unless you are covered by some other program, such as CalPers. the question of states rights was settles in 1864 and cost more American lives than any other war. The alternative would be, if you do not have health insurance, an emergency room should be able to refuse you treatment unless you can pay then and there. The rest of us pay for those who can not pay and it costs us more.

There is also a clause in the constitution Article 1, section 8, to wit: "The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

It is this general welfare clause that is just ambiguous enough to allow the federal government to pass such laws. Alexander Hamilton the author of the Federalist papers would have approved of it. Thomas Jefferson, the author of the preamble to the Constitution would disapprove. George Washington, also a Federalists would also probably would have approved of it.

It will most likely be close call if SCOTUS takes it.

It is an act that benefits us all, the same as many other acts that are enacted to do what we as individuals can not do individually. We have had the chance to see just how mean spirited, how many lies, how much fear mongering, racial baiting, appeals to ignorance that the Republican party and in particular its right wing supporters will resort to, in order to try and bring down the current administration. The constant rant that the majority of Americans do not support this act is just plain sophistry. The majority of Americans voted for this congress and they were told that this administration was determined to pass a universal health care bill.

There is a meanness of spirit permeating this land and its name is Republican.

andrew nelson

for David_U

hmmm... actually SS and Medicare could never be challenged for the unconstitutionality of imposing a tax, because it did just that under the correct article of the constitution.

But not this bill... Oh no. And our President, our gifted Constitutional Scholar, made that precise point.

In September, Obama got into a semantic argument with ABC's George Stephanopoulos, who noted that requiring all Americans to pay premiums for a government-guaranteed service sounds an awful lot like a tax. "No. That's not true, George," Obama said. "For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is . . . that we're not going to have other people carrying your burdens for you." Stephanopoulos invoked a dictionary definition of a tax: "a charge, usually of money, imposed by authority on persons or property for public purposes." Obama laughed off the idea that a dictionary might outrank him as the final arbiter of a word's meaning.

"George, the fact that you looked up . . . the definition of tax increase indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition."

You're absolutely right when you say Article 1, section 8, to wit: "The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

But it's not a tax, it's a mandate to buy a private product, health insurance. Admitted to by our Constitutional Scholar. And congress has no power to impose it.

And as for "There is a meanness of spirit permeating this land and its name is Republican.".

You could be right, who knows? But it seems to be the only shield protecting the constitution at the moment, so we'll have to use it until something better comes along.

sceptic

I wonder what the constitutional scholars would say if the Federal government mandated that all citizens must own and carry firearms? Would they find that constitutional?

David_U

For: andrew nelson

And the reason it is private companies that will be providing the insurance instead of the feds is; the massive opposition to a federally funded insurance program, by both parties, but in particular to try and get the Republicans to vote for it. Keep in mind, you still do not have to buy into the program but you will pay a tax and automatically be enrolled in medicaid or medicare if you do not.

In particular it is the "tenthers" that are really incensed about this, this is the same group is part of the "birthers" and the "Tea Party" bunch. I think by the time it gets to the court, most people will have accepted it, and it will be a narrow call. Again, IANAL, but as we all know, if you want see disagreement, just put two lawyers in the same room.

Daniel

look at what james madison has to say about the general welfare clause
then tell me if this is constitutional
the founding fathers are rolling in their graves right now

fellow traveler

If the founding fathers are rolling in their graves now, it is because they are rolling with laughter at the inane and witless "constitutional" scholarship of the Andrews of this world.

David

This will not be argued under the commerce clause. This is a tax. If you have insurance you will get a tax credit. If not you will be taxed. Congress has broad constitutional powers to tax. Case closed. For those of you that want the freedom to not have insurance and risk ending up in the emergency room only to go bankrupt and pass the cost on to me, you are right. Your freedom is over and for that I am glad.

 
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