Law School Discussion

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.

Quote from: Burning Sands, Esq. on January 16, 2011, 12:16:29 AM

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.

Quote from: bigs5068 on January 07, 2011, 09:46:12 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 .

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 .

Not sure what this post is really about, but I do know one thing: the Apollo Theater is not in Brooklyn.  It's in the Harlem area of Manhattan.

It's def not what it used to be, that's for sure.

I've been told by those at the firm I worked at that an out-of-state resident should book a hotel room for the NY bar asap as they fill up quickly.  Where are my supposed to book the hotel?

Also, how on earth do I do that without bar exam dates?

You won't know your test site for certain until the bar gets closer, but what many people do is go ahead and book a hotel room in Albany if they are out-of-state, or book a hotel room in the City somewhere near the Javits if they are in-state.  If you wait until the NY Bar examiners give you a definite test site (which can come as late as June) then you will most certainly find that all the rooms are gone.

So go ahead and book now. You're basically playing the odds that you will likely test at the Javits (if in-state) although you may end up at one of the other sites in Manhattan.  If out-of-state you are guaranteed to test in Albany UNLESS you win the laptop lottery, in which case you will have a choice of taking in Javits or a few other locations.

Good luck with that *&^%.  Gives me the creeps just thinking about it again.