Law School Discussion

Off-Topic Area => Politics and Law-Related News => Topic started by: bigs5068 on January 07, 2011, 02:07:26 PM

Title: Legal Theories on the Health Care bill?
Post by: bigs5068 on January 07, 2011, 02:07:26 PM
I am curious if & when this whole thing gets to the Supreme Court what the arguments will be. It seems like it might violate the 10th amendment to me, but I know it is uncertain if that is a truism or something that can make legislation unconstitutional.  If any actual lawyer has an opinion I would be interested in hearing it. The news seems to ramble on without saying anything really and I would love to hear what the Supreme Court will actually decide when it gets there.
Title: Re: Legal Theories on the Health Care bill?
Post by: Thane Messinger on January 07, 2011, 02:13:25 PM
I am curious if & when this whole thing gets to the Supreme Court what the arguments will be. It seems like it might violate the 10th amendment to me, but I know it is uncertain if that is a truism or something that can make legislation unconstitutional.  If any actual lawyer has an opinion I would be interested in hearing it. The news seems to ramble on without saying anything really and I would love to hear what the Supreme Court will actually decide when it gets there.


10th Amendment?  What's that?!*

* A jurisprudential double-entendre for those Federalists among us.  = :   )
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on January 07, 2011, 03:00:48 PM
I think proponents are saying it is OK under the commerce clause - so the challenge will be showing certain provisions are unconstitutional under the CC.  Personally, I think a constitutional ammendment is in order clarifying and limiting congressional power under the commerce clause.
Title: Re: Legal Theories on the Health Care bill?
Post by: bigs5068 on January 07, 2011, 07:46:12 PM
The 10th Amendment came up in the New York v. United States case where the court said that you could not tell the State how to spend resources regarding nuclear waste disposal. The same thing happened in Printz v. United States where the Fed could not force local police to enforce the Brady Bill. There were some other cases that I can't find that said the 10th amendment does not really mean anything though and it seems up in the air. I am not real sure how the health bill works, but I was under the impression it required states to direct resources towards the bill without a choice. 

I could definitely see a commerce clause argument come up. I agree with Hamilton on that it should be given a bit more clarity although it is a great way for Con Law Professors to give Exams :).
Title: Re: Legal Theories on the Health Care bill?
Post by: bigs5068 on January 08, 2011, 12:21:51 PM
W
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on January 08, 2011, 03:06:52 PM
Boiled down, it requires INDIVIDUALS to purchase a product or face a fine.  Argue THAT under the CC.

Con Law profs do love their CC essays - thats good b/c there are several fairly easy tests to apply.

The 10th Amendment came up in the New York v. United States case where the court said that you could not tell the State how to spend resources regarding nuclear waste disposal. The same thing happened in Printz v. United States where the Fed could not force local police to enforce the Brady Bill. There were some other cases that I can't find that said the 10th amendment does not really mean anything though and it seems up in the air. I am not real sure how the health bill works, but I was under the impression it required states to direct resources towards the bill without a choice. 
Title: Re: Legal Theories on the Health Care bill?
Post by: Julie Fern on January 15, 2011, 05:11:30 PM
you mean, as opposed make rest us pay for uninsured anyway?
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on January 15, 2011, 09:31:19 PM
irrelevant when considering constitutional limits on the authority of congress.

you mean, as opposed make rest us pay for uninsured anyway?
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on January 15, 2011, 10:16:29 PM
Naw, this isn't a 10th Amendment issue.  The bill doesn't attempt to force the states to do anything.  As somebody mentioned above, the individual mandate contained within the bill is a Commerce Clause issue.   In addition to being a Commerce Clause issue, it is also a Taxing & Spending Clause issue, which is likely where the mandate will pass Constitutional scrutiny.

With respect to the Commerce Clause issue, it is difficult to say whether the Supreme Court will add this bill to the very short list of congressional acts that have been ruled as overstepping the power granted to Congress under the Commerce Clause (see U.S. v. Lopez) or whether the Court will find that this is yet another permissible regulation of interstate commerce in a long history of permissible regulations of interstate commerce going all the way back to the nation's founding.  The Court rarely slaps Congress on the wrist on Commerce Clause grounds but you never know, this could be one of those rare moments. 

If it's a 5-4 vote and the swing vote comes down to Justice Kennedy (which seems to be the Court's m.o. lately) then it's notable to observe that J. Kennedy tends to come down on the side of Justices who believe that Congress has broad powers under the Commerce Clause (see Gonzales v. Raich).  So it's likely that the health care bill will be upheld as Constitutional.

However, there are certainly good arguments on both sides of this debate.


The 10th Amendment came up in the New York v. United States case where the court said that you could not tell the State how to spend resources regarding nuclear waste disposal. The same thing happened in Printz v. United States where the Fed could not force local police to enforce the Brady Bill. There were some other cases that I can't find that said the 10th amendment does not really mean anything though and it seems up in the air. I am not real sure how the health bill works, but I was under the impression it required states to direct resources towards the bill without a choice. 

I could definitely see a commerce clause argument come up. I agree with Hamilton on that it should be given a bit more clarity although it is a great way for Con Law Professors to give Exams :).
Title: Re: Legal Theories on the Health Care bill?
Post by: Julie Fern on January 26, 2011, 06:59:37 PM
irrelevant when considering constitutional limits on the authority of congress.

you mean, as opposed make rest us pay for uninsured anyway?

nonsense.  rationality rationality.
Title: Re: Legal Theories on the Health Care bill?
Post by: bigs5068 on January 26, 2011, 11:08:25 PM
It doesn't matter really because they are pushing a bill that is actually titled this is not a joke. The 112th Congress is pushing a bill titled.  Repealing the Job-Killing Health Care Law Act H.Res 2. That is unbelievably bad and I voted for Republicans mostly.

http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.2: The actual link to the congressional bill. Astonishing

Title: Re: Legal Theories on the Health Care bill?
Post by: NonTradInSATX on January 28, 2011, 11:58:49 AM
Agreed, but the argument that needs to stop being made by all the politicians/pundits out there (including some lawyers) is the analogy between Car Insurance and Health Insurance.

Although you could force some sort of absurd logic saying that the uninsured cost people in the end, so it's a charge up front instead of getting hit on the back end, you still cant argue that car insurance (intended to cover the OTHER person's costs in an accident) and health insurance (intended to cover YOUR costs) are the same kind of thing.  If this logic has been worked out, I'd love to hear it, but otherwise the analogy is done.  Furthermore, even if the analogy was valid or you dont care to consider the intent, auto insurance is a state requirement, not a federal requirement. 

On the primary topic though, consider the precedent if this is allowed to go on.  50 years from now, the government might mandate that everyone buy an american made car, require every family to own a laptop for every child or otherwise force you to purchase a good or service you dont personally desire to spend money on.  Then you sue the federal government for overreaching, but precedent says that they can force you to purchase anything they can justify as necessary for the greater welfare.

Simply put, the Constitution does not grant under the CC the right to force people to buy things.


Naw, this isn't a 10th Amendment issue.  The bill doesn't attempt to force the states to do anything.  As somebody mentioned above, the individual mandate contained within the bill is a Commerce Clause issue.   In addition to being a Commerce Clause issue, it is also a Taxing & Spending Clause issue, which is likely where the mandate will pass Constitutional scrutiny.

With respect to the Commerce Clause issue, it is difficult to say whether the Supreme Court will add this bill to the very short list of congressional acts that have been ruled as overstepping the power granted to Congress under the Commerce Clause (see U.S. v. Lopez) or whether the Court will find that this is yet another permissible regulation of interstate commerce in a long history of permissible regulations of interstate commerce going all the way back to the nation's founding.  The Court rarely slaps Congress on the wrist on Commerce Clause grounds but you never know, this could be one of those rare moments. 

If it's a 5-4 vote and the swing vote comes down to Justice Kennedy (which seems to be the Court's m.o. lately) then it's notable to observe that J. Kennedy tends to come down on the side of Justices who believe that Congress has broad powers under the Commerce Clause (see Gonzales v. Raich).  So it's likely that the health care bill will be upheld as Constitutional.

However, there are certainly good arguments on both sides of this debate.


The 10th Amendment came up in the New York v. United States case where the court said that you could not tell the State how to spend resources regarding nuclear waste disposal. The same thing happened in Printz v. United States where the Fed could not force local police to enforce the Brady Bill. There were some other cases that I can't find that said the 10th amendment does not really mean anything though and it seems up in the air. I am not real sure how the health bill works, but I was under the impression it required states to direct resources towards the bill without a choice. 

I could definitely see a commerce clause argument come up. I agree with Hamilton on that it should be given a bit more clarity although it is a great way for Con Law Professors to give Exams :).
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on January 31, 2011, 01:51:08 PM
Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 

Whether or not you actually buy the health insurance is up to you, but just like Medicare, Social Security, and FICA, the Federal government has the undisputed authority to Tax the people, regardless of whether you personally benefit from the proceeds of a particular Tax initiative or not. 

In other words, the Health Care "mandate" is not truly a "mandate" in the sense that the Draft was a mandate.  It's not literally forcing you to do anything.  If you don't buy health insurance, nothing happens to you, nobody comes to arrest you, nobody finds you in contempt of court, etc.  Now, of course, you can argue that the tax "punishes" those who freely choose not to buy health insurance, but it is difficult to see how characterizing an enumerated constitutional power of the federal government (ie. the power to  Tax) as a "punishment" will win the day in court.  I'm not saying it's impossible to make that argument, but it is a long shot.

Bottom line, even if the so-called "mandate" were to be found unconstitutional, then the most that would happen is that the mandate provision within the Health Care Act would be wiped off the books.  The Health Care Act itself would still remain.  So I think a lot of this talk about repealing the law is more fiction than fact.

Agreed, but the argument that needs to stop being made by all the politicians/pundits out there (including some lawyers) is the analogy between Car Insurance and Health Insurance.

Although you could force some sort of absurd logic saying that the uninsured cost people in the end, so it's a charge up front instead of getting hit on the back end, you still cant argue that car insurance (intended to cover the OTHER person's costs in an accident) and health insurance (intended to cover YOUR costs) are the same kind of thing.  If this logic has been worked out, I'd love to hear it, but otherwise the analogy is done.  Furthermore, even if the analogy was valid or you dont care to consider the intent, auto insurance is a state requirement, not a federal requirement. 

On the primary topic though, consider the precedent if this is allowed to go on.  50 years from now, the government might mandate that everyone buy an american made car, require every family to own a laptop for every child or otherwise force you to purchase a good or service you dont personally desire to spend money on.  Then you sue the federal government for overreaching, but precedent says that they can force you to purchase anything they can justify as necessary for the greater welfare.

Simply put, the Constitution does not grant under the CC the right to force people to buy things.


Naw, this isn't a 10th Amendment issue.  The bill doesn't attempt to force the states to do anything.  As somebody mentioned above, the individual mandate contained within the bill is a Commerce Clause issue.   In addition to being a Commerce Clause issue, it is also a Taxing & Spending Clause issue, which is likely where the mandate will pass Constitutional scrutiny.

With respect to the Commerce Clause issue, it is difficult to say whether the Supreme Court will add this bill to the very short list of congressional acts that have been ruled as overstepping the power granted to Congress under the Commerce Clause (see U.S. v. Lopez) or whether the Court will find that this is yet another permissible regulation of interstate commerce in a long history of permissible regulations of interstate commerce going all the way back to the nation's founding.  The Court rarely slaps Congress on the wrist on Commerce Clause grounds but you never know, this could be one of those rare moments. 

If it's a 5-4 vote and the swing vote comes down to Justice Kennedy (which seems to be the Court's m.o. lately) then it's notable to observe that J. Kennedy tends to come down on the side of Justices who believe that Congress has broad powers under the Commerce Clause (see Gonzales v. Raich).  So it's likely that the health care bill will be upheld as Constitutional.

However, there are certainly good arguments on both sides of this debate.


The 10th Amendment came up in the New York v. United States case where the court said that you could not tell the State how to spend resources regarding nuclear waste disposal. The same thing happened in Printz v. United States where the Fed could not force local police to enforce the Brady Bill. There were some other cases that I can't find that said the 10th amendment does not really mean anything though and it seems up in the air. I am not real sure how the health bill works, but I was under the impression it required states to direct resources towards the bill without a choice. 

I could definitely see a commerce clause argument come up. I agree with Hamilton on that it should be given a bit more clarity although it is a great way for Con Law Professors to give Exams :).
Title: Re: Legal Theories on the Health Care bill?
Post by: NonTradInSATX on January 31, 2011, 07:38:32 PM
Fair enough, so we'll go with a different analogy then.  If this is a Tax levied only when a citizen chooses NOT to do something, lets extend that logic out.

What if the government were then to decide that they could tax anyone that doesn't exercise regularly?  Or that by choosing NOT to buy a car, I would be fined/taxed a fee to help subsidize those that do?  Where does the ability to control your life end if they can tax inaction?

My argument would be that taxes can only be levied on money/goods/actions, not on inaction.  How can taxing for NOT taking an action be anything other than a punishment?

But perhaps a 0L is overstepping his own enumerated powers in attempting legal analysis on such a divisive topic.   ;)

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 

Whether or not you actually buy the health insurance is up to you, but just like Medicare, Social Security, and FICA, the Federal government has the undisputed authority to Tax the people, regardless of whether you personally benefit from the proceeds of a particular Tax initiative or not. 

In other words, the Health Care "mandate" is not truly a "mandate" in the sense that the Draft was a mandate.  It's not literally forcing you to do anything.  If you don't buy health insurance, nothing happens to you, nobody comes to arrest you, nobody finds you in contempt of court, etc.  Now, of course, you can argue that the tax "punishes" those who freely choose not to buy health insurance, but it is difficult to see how characterizing an enumerated constitutional power of the federal government (ie. the power to  Tax) as a "punishment" will win the day in court.  I'm not saying it's impossible to make that argument, but it is a long shot.

Bottom line, even if the so-called "mandate" were to be found unconstitutional, then the most that would happen is that the mandate provision within the Health Care Act would be wiped off the books.  The Health Care Act itself would still remain.  So I think a lot of this talk about repealing the law is more fiction than fact.

Agreed, but the argument that needs to stop being made by all the politicians/pundits out there (including some lawyers) is the analogy between Car Insurance and Health Insurance.

Although you could force some sort of absurd logic saying that the uninsured cost people in the end, so it's a charge up front instead of getting hit on the back end, you still cant argue that car insurance (intended to cover the OTHER person's costs in an accident) and health insurance (intended to cover YOUR costs) are the same kind of thing.  If this logic has been worked out, I'd love to hear it, but otherwise the analogy is done.  Furthermore, even if the analogy was valid or you dont care to consider the intent, auto insurance is a state requirement, not a federal requirement. 

On the primary topic though, consider the precedent if this is allowed to go on.  50 years from now, the government might mandate that everyone buy an american made car, require every family to own a laptop for every child or otherwise force you to purchase a good or service you dont personally desire to spend money on.  Then you sue the federal government for overreaching, but precedent says that they can force you to purchase anything they can justify as necessary for the greater welfare.

Simply put, the Constitution does not grant under the CC the right to force people to buy things.



Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on January 31, 2011, 09:55:01 PM
The auto insurance/health insurance is a bad analogy.  The requirement for auto insurance comes from the STATE as a provision to owning a car, getting it licensed by the state, and driving it in the state.  Its not a federal mandate for everyone, regardless of whether they choose to own a car and drive it.

Apparently when campaigning in 2008, President Obama stated he was not in favor of individual mandate as that was just like the Fed solving the homelss problem by requiring everyone to own a home.  Judge cited this in his opinion today.
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 01, 2011, 10:23:38 AM
Agreed.  The Auto Insurance/health insurance is a bad analogy for the reasons you stated.

The auto insurance/health insurance is a bad analogy.  The requirement for auto insurance comes from the STATE as a provision to owning a car, getting it licensed by the state, and driving it in the state.  Its not a federal mandate for everyone, regardless of whether they choose to own a car and drive it.

Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on February 01, 2011, 10:39:33 AM
Yes - but the judge, and others, have rightfully called bull$h*t on labeling this as a "tax."  At first the administration said it was not a tax, but then when they learned they needed it to be a tax, they called it one.

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 01, 2011, 10:46:55 AM
For a 0L, you're doing a good job at asking the right questions.  When is the government overstepping?  Where is the line drawn?  Those are the right questsions to ask and, coincidentally, the questions that the Supreme Court was created to answer.

As far as regulating inaction, there's actually some support for this proposition if we go back to the Commerce Clause. See the landmark Supreme Court case Wickard v. Filburn. (http://en.wikipedia.org/wiki/Wickard_v._Filburn)  It basically says that even if you're not literally engaging in interstate commerce, if your inaction, in the aggregate, has an effect on interstate commerce then the government is still within its right to regulate your "inactivity" because you are still effecting interstate commerce.

Here, the argument is that the inaction of millions of Americans in the aggregate is having an a effect on interstate commerce b/c it's driving up health insurance coverage. 

That being said, the Commerce Clause may not be the best way to argue this thing b/c Wickard did not go as far as taxing the farmer in that case for literally taking no action whatsoever.   They taxed him, rather, because his intra-state action was causing an effect on interstate commerce. Thus, the Tax & Spend clause is likely where the Health Care law will find its most support because whether we call it a "punishment" or not, the government still has the undisputed power to Tax.


Fair enough, so we'll go with a different analogy then.  If this is a Tax levied only when a citizen chooses NOT to do something, lets extend that logic out.

What if the government were then to decide that they could tax anyone that doesn't exercise regularly?  Or that by choosing NOT to buy a car, I would be fined/taxed a fee to help subsidize those that do?  Where does the ability to control your life end if they can tax inaction?

My argument would be that taxes can only be levied on money/goods/actions, not on inaction.  How can taxing for NOT taking an action be anything other than a punishment?

But perhaps a 0L is overstepping his own enumerated powers in attempting legal analysis on such a divisive topic.   ;)

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 

Whether or not you actually buy the health insurance is up to you, but just like Medicare, Social Security, and FICA, the Federal government has the undisputed authority to Tax the people, regardless of whether you personally benefit from the proceeds of a particular Tax initiative or not. 

In other words, the Health Care "mandate" is not truly a "mandate" in the sense that the Draft was a mandate.  It's not literally forcing you to do anything.  If you don't buy health insurance, nothing happens to you, nobody comes to arrest you, nobody finds you in contempt of court, etc.  Now, of course, you can argue that the tax "punishes" those who freely choose not to buy health insurance, but it is difficult to see how characterizing an enumerated constitutional power of the federal government (ie. the power to  Tax) as a "punishment" will win the day in court.  I'm not saying it's impossible to make that argument, but it is a long shot.

Bottom line, even if the so-called "mandate" were to be found unconstitutional, then the most that would happen is that the mandate provision within the Health Care Act would be wiped off the books.  The Health Care Act itself would still remain.  So I think a lot of this talk about repealing the law is more fiction than fact.

Agreed, but the argument that needs to stop being made by all the politicians/pundits out there (including some lawyers) is the analogy between Car Insurance and Health Insurance.

Although you could force some sort of absurd logic saying that the uninsured cost people in the end, so it's a charge up front instead of getting hit on the back end, you still cant argue that car insurance (intended to cover the OTHER person's costs in an accident) and health insurance (intended to cover YOUR costs) are the same kind of thing.  If this logic has been worked out, I'd love to hear it, but otherwise the analogy is done.  Furthermore, even if the analogy was valid or you dont care to consider the intent, auto insurance is a state requirement, not a federal requirement. 

On the primary topic though, consider the precedent if this is allowed to go on.  50 years from now, the government might mandate that everyone buy an american made car, require every family to own a laptop for every child or otherwise force you to purchase a good or service you dont personally desire to spend money on.  Then you sue the federal government for overreaching, but precedent says that they can force you to purchase anything they can justify as necessary for the greater welfare.

Simply put, the Constitution does not grant under the CC the right to force people to buy things.



Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 01, 2011, 10:52:12 AM
Yeah but you're placing too much focus on the administration.  It doesn't matter what the Executive branch calls it or doesn't call it.  At the end of the day, whether it will be constitutional or not depends on how the Legislative branch drafted it.


Yes - but the judge, and others, have rightfully called bull$h*t on labeling this as a "tax."  At first the administration said it was not a tax, but then when they learned they needed it to be a tax, they called it one.

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on February 01, 2011, 10:55:21 AM
You are absolutely right.  Call it a tax, call it a fine, call it a duck... the court will look at it and decide what it IS.

Yeah but you're placing too much focus on the administration.  It doesn't matter what the Executive branch calls it or doesn't call it.  At the end of the day, whether it will be constitutional or not depends on how the Legislative branch drafted it.


Yes - but the judge, and others, have rightfully called bull$h*t on labeling this as a "tax."  At first the administration said it was not a tax, but then when they learned they needed it to be a tax, they called it one.

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 
Title: Re: Legal Theories on the Health Care bill?
Post by: NonTradInSATX on February 01, 2011, 12:20:25 PM
Whether it's justified under taxation or commerce, where I get concerned is the setting of precedent.  Congress is attempting to tell citizens how they must spend some of their money.  Whether the net positive benefit to society outweighs the cost (and I do believe it does), is irrelevant IMO.  The crux of the issue to me is what precedent does it set if the Supreme Court allows the government to tell citizens how to spend their money?

Now, on the other hand if this was Universal Healthcare and they just taxed the citizens to pay for it, I see no legal issues with that. 
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on February 01, 2011, 12:48:30 PM
I love the question being asked that if we can be compelled to buy health insurance what else can we be compelled to buy?  Guns?  Bibles?  Certain foods?  Where does it end?

Whether it's justified under taxation or commerce, where I get concerned is the setting of precedent.  Congress is attempting to tell citizens how they must spend some of their money.  Whether the net positive benefit to society outweighs the cost (and I do believe it does), is irrelevant IMO.  The crux of the issue to me is what precedent does it set if the Supreme Court allows the government to tell citizens how to spend their money?

Now, on the other hand if this was Universal Healthcare and they just taxed the citizens to pay for it, I see no legal issues with that.
Title: Re: Legal Theories on the Health Care bill?
Post by: NonTradInSATX on February 01, 2011, 01:45:14 PM
Then you'll love this:

http://www.cbsnews.com/8301-503544_162-20030246-503544.html

Its obviously just a stunt, but it's what would happen if conservatives had to make a mandate.

I love the question being asked that if we can be compelled to buy health insurance what else can we be compelled to buy?  Guns?  Bibles?  Certain foods?  Where does it end?

Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 01, 2011, 07:56:20 PM
Hate to break this news to you, but Congress has been doing that for about 200 years now.  (see your paycheck)


Congress is attempting to tell citizens how they must spend some of their money. 
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 01, 2011, 07:59:48 PM
That is quite possibly one of the worst slippery slope arguments of all time.  The federal government CLEARLY cannot compel any religion.  (See 1st Amendment)  And the gun argument is equally as silly.

I love the question being asked that if we can be compelled to buy health insurance what else can we be compelled to buy?  Guns?  Bibles?  Certain foods?  Where does it end?

Whether it's justified under taxation or commerce, where I get concerned is the setting of precedent.  Congress is attempting to tell citizens how they must spend some of their money.  Whether the net positive benefit to society outweighs the cost (and I do believe it does), is irrelevant IMO.  The crux of the issue to me is what precedent does it set if the Supreme Court allows the government to tell citizens how to spend their money?

Now, on the other hand if this was Universal Healthcare and they just taxed the citizens to pay for it, I see no legal issues with that.
Title: Re: Legal Theories on the Health Care bill?
Post by: NonTradInSATX on February 01, 2011, 08:54:56 PM
Arguably, but Social Security, Medicare and Income taxes force you to pay the government and are a tax.

The "mandate" is forcing people to pay a private entity for a service and if you opt-out, then you are fined.

The analogy quite doesnt hold up.

Hate to break this news to you, but Congress has been doing that for about 200 years now.  (see your paycheck)


Congress is attempting to tell citizens how they must spend some of their money. 
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on February 01, 2011, 08:59:14 PM
Obviously the guns and bible are ridiculous; however, not much more so than a law that will require you to purchase (insert product here) or else be fined.  Lets say "optical insurance" then... is that next?  Then Dental? 

That is quite possibly one of the worst slippery slope arguments of all time.  The federal government CLEARLY cannot compel any religion.  (See 1st Amendment)  And the gun argument is equally as silly.
Title: Re: Legal Theories on the Health Care bill?
Post by: like_lasagna on February 03, 2011, 12:36:09 AM
Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play.

I think this is really unlikely. Of the four district courts that have looked at this, all of them say that this isn't a tax. It's a regulatory penalty.
Title: Re: Legal Theories on the Health Care bill?
Post by: like_lasagna on February 03, 2011, 12:42:57 AM
Boils down to Lopez in my mind. The test is whether or not this is regulating an activity that substantially affects interstate commerce.

Both Liberty U. and Florida (first one said constitutional, second said not) framed the issue that way. Is not buying health insurance an "activity"? If it is, it probably can be mandated. If it isn't, then it probably can't (under Lopez, anyway).

Liberty U. said basically said that the decision not to purchase health insurance is an activity and therefore it falls under the Commerce Clause.

Florida said that it is, almost by definition, inactivity (not buying insurance) and that Congress's power didn't reach that far.

It's not really Wickard/Gonzales because those cases, while regulating purely intrastate activity, were at least regulating activity (growing and consumption of wheat and marijuana, respectively). This isn't doing that. To play with Wickard a little, it would be more like the government mandating that you grow corn on your land (ignoring any seizure arguments or w/e; let's pretend we're solely in Commerce Clause land). I'm betting on 5-4 against.


By the way, the beautiful thing about the South Dakota law is that the legislature is trying to prove that they can't mandate the purchase of a firearm when, as a state government, they probably can.
Title: Re: Legal Theories on the Health Care bill?
Post by: Hamilton on February 03, 2011, 06:17:38 AM
I'm not a big fan of knee-jerk constitutional ammendments, but given the case law and latitude for interpretation, I thing the CC is ripe for an ammendment that clarifies the scope and intent.  It boggles my mind that the Fed can compell the purchase of a product under the guise of the CC.
Title: Re: Legal Theories on the Health Care bill?
Post by: NonTradInSATX on February 03, 2011, 07:51:57 AM
Liberty U. said basically said that the decision not to purchase health insurance is an activity and therefore it falls under the Commerce Clause.

An interesting view of things, not making a decision to undergo an activity is an activity in and of itself. 

You could argue that some young people without health issues have never needed insurance and never really considered it, therefore it is inactivity and not an active decision to NOT buy insurance.  These people could then face a regulatory penalty or tax on that inactivity.  This would essentially be punishment for NOT doing something.

By the way, the beautiful thing about the South Dakota law is that the legislature is trying to prove that they can't mandate the purchase of a firearm when, as a state government, they probably can.

Interesting point, is there no legal limit on a state to prevent forcing citizens to purchase certain goods/services?
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 04, 2011, 11:32:55 AM
And the SCOTUS would be bound by the district courts because....?

 ;)

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play.

I think this is really unlikely. Of the four district courts that have looked at this, all of them say that this isn't a tax. It's a regulatory penalty.
Title: Re: Legal Theories on the Health Care bill?
Post by: Burning Sands, Esq. on February 04, 2011, 12:13:24 PM
I agree that no case to date is on point.  Although the proposition of regulating so-called "inactivity" may not be so far fetched as it seems on the surface. 

As the district court in Michigan noted, in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), the SCOTUS held that the Commerce Clause allowed Congress to compel those choosing not to engage in commerce to, in fact, engage in commerce.   Of course you could attempt to distinguish that case on the grounds that the hotel owners were already engaged in the commercial activity of running a hotel.  But I suppose if we accept the Michigan court's premise that, as humans who are always in need of medical care, we are already engaged in the commerce of the health care market, then it follows that our decision to buy or not to buy health insurance does have an effect on interstate commerce and is thus subject to regulation under the commerce clause.

What complicates this health care issue is the fact that the SCOTUS has never ruled that the test for whether something can be regulated by Congress under the commerce clause is whether that something is an activity or not. (It's always been assumed that it must be an activity).  Rather, the test of whether something can be regulated by the commerce clause is simply whether it effects interstate commerce. (going back to Heart of Atlanta Motel)

Again, as far as I'm aware, there is no Supreme Court case squarely on point that could settle the issue of whether the "thing" that effects interstate commerce MUST BE an activity as opposed to an omission. 

One thing's for sure though, the SCOTUS has to grant cert here.  There's no way this can be left to the circuits.


Boils down to Lopez in my mind. The test is whether or not this is regulating an activity that substantially affects interstate commerce.

Both Liberty U. and Florida (first one said constitutional, second said not) framed the issue that way. Is not buying health insurance an "activity"? If it is, it probably can be mandated. If it isn't, then it probably can't (under Lopez, anyway).

Liberty U. said basically said that the decision not to purchase health insurance is an activity and therefore it falls under the Commerce Clause.

Florida said that it is, almost by definition, inactivity (not buying insurance) and that Congress's power didn't reach that far.

It's not really Wickard/Gonzales because those cases, while regulating purely intrastate activity, were at least regulating activity (growing and consumption of wheat and marijuana, respectively). This isn't doing that. To play with Wickard a little, it would be more like the government mandating that you grow corn on your land (ignoring any seizure arguments or w/e; let's pretend we're solely in Commerce Clause land). I'm betting on 5-4 against.


By the way, the beautiful thing about the South Dakota law is that the legislature is trying to prove that they can't mandate the purchase of a firearm when, as a state government, they probably can.