Legal Theories on the Health Care bill?

[NonTradInSATX]

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. 

[Hamilton]

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.

[NonTradInSATX]

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?

[Burning Sands, Esq.]

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. 

[Burning Sands, Esq.]

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.

[NonTradInSATX]

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. 

[Hamilton]

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.

[like_lasagna]

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.

[like_lasagna]

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.

[Hamilton]

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.