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The Health Care Bill: Constitutional or Unconstitutional?

38 comments

Opponents of the health care bill that was signed into law today by President Obama are already arguing that it’s not constitutional. Many people are asking where the US Constitution gives Congress the right to force people to buy a product.

The answers are these:

1. Under the Commerce Clause of the Constitution, Congress can mandate individuals to take a particular action as long as it affects interstate commerce. Interstate commerce encompasses all forms of communication and transportation and all movements of people and things across state lines. Without question, health care and health coverage are issues that affect interstate commerce; therefore, Congress can regulate them.

2. The Constitution grants Congress the right to tax Americans. If Congress decides to that everyone who does X or who fails to do Y owes a tax of $750, then those who do X and those who don’t do Y legally owe that tax. Notably, the individual mandate to buy health insurance, which says that anyone who doesn’t purchase coverage will have to pay a penalty, has been inserted into the tax code.

Whether or not people agree with the health care bill, opposing it on legal grounds is probably not the best use of their time and energy. Instead, we can try to support the immediate improvements the country will see this year, including an end to exclusion for pre-existing conditions, to lifetime caps on payments, and to dropped coverage for becoming sick.

38 Comments

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  1. Ed says:
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    Wow, you’re a lawyer? Did you get your degree from a Cracker Jacks box? I wouldn’t hire you to cut my lawn much less represent me an any legal proceedings. You’re “understanding” or lackthereof of the Commerce Clause and Tax laws are astounding.

  2. Ted says:
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    Hey Ed,
    FYI Commerce Act was instrumental in passing other socially conscious programs like the (FDA) Food Drug Administration. It’s supposed to find the Mad cow disease before it affects people. In your case game-over buddy you’re talking like a mad man.

  3. darkage says:
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    Actually mr ‘Attorney” (too bad your not a CONSTITUTIONAL ATTORNEY…)

    i will keep it simple for you.
    Interstate Commerce Clause allows the Government to Regulate “Commerce” across state lines.
    if i dont buy health care, i create NO COMMERCE. the interstate Commerce Clause dictates interstate commerce, not the lack thereof.
    you cannot put the cart before the horse!

    So you’re saying that the government has the authority to force you to buy something so they have something to Regulate?!

  4. John says:
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    Sorry, Ed and Darkage, but Mr. Ferrara is right:

    In the first place, it’s simply impossible to abstain from health care “commerce.” Even without purchasing health insurance, we will all need to see doctors at some point in our lives, and will spend money out of our own pockets to do so. Congress may regulate (and redirect) those expenditures consistent with its commerce and taxing powers.

    Moreover, this kind of economic “inactivity” has been fair game for congressional regulation since 1942, when our Supreme Court decided a case called Wickard v. Filburn.

    I see the logic in your arguments. However, our courts have uniformly interpreted the Constitution to allow this type of law.

  5. darkage says:
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    One big problem with this scenario is that it opens the way for vast abuse of power ‘constitutionally’ by both congress and the President…

    lets say this bill is deemed Constitutional….
    the government can FORCE people to either buy this product or pay a fine… or go to jail…

    This is essentially indentured servitude. (13th Amendement)

    It also opens the door to MASSIVE abuse of power.. how?
    Lets say that tomorrow the Ambassador of Japan shows up at the presidents office and says ‘My good friend, Our TVs haven’t been selling well of late. Can you perhaps do something about this?’

    What does the President do? gets his Democratic friends to push a new law that requires people to purchase a 50inch plasma television of Toshiba design, or face penalties or jail time.
    Why of course this is Constitutional.. right? Its covered by the Interstate Commerce Clause.. right?

    Where is the limit to this DICTATORIAL authority?

    To quote the Constitution
    Amendment V

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    read that last sentence..
    ” nor shall private property be taken for public use, without just compensation.”
    My private property is the money i work for. the taking is the taxes taken for someone elses health care and NOT giving me just compensation in return.

    I watched the ‘debate’ during the vote on the bill the other day…

    I listened to all these Democrats quote past presidents.. but one president came to MY mind that they didn’t DARE to quote..
    and that is Franklin Pierce, the 14th President of the United States of America…
    in 1854 he Vetoed a Mental Health Bill stating…

    “A citizens health is a PRIVATE MATTER and the Government has NO business in it.”

    (I do belive that in law this is called establishing a precedent)

    Interesting that back then the PRESIDENT of the United States knew the Constitution, and that the current President today does not.

    And that old lady they kept touting about that had to choose between her health insurance and her utilities?

    Why, good news for her! She no longer has to worry.. she can kiss her utilities goodbye, because now she HAS to pay for the Health Insurance or else pay a fine or go to jail!

    Thank you Democrats and Obama for helping her with her choices!
    And its constitutional to boot!

    What if my religion forbids me to see a doctor? Forcing me to purchase Health Care under the claim that I ‘need it’ opens the door to violate the Freedom of Religion.

    the 10th Amendment..
    It states, “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.”

    No where in the Constitution does it state in any fashion that the Government may impose upon the people a demand to carry Health Insurance.
    Health regulations in both the practice and the direction of Insurance companies have always fallen within the STATE’s pervue. The Government is obviously attempting to take this right away from the states and the People.

    Article I Section 8
    The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

    Again, the last part…..
    “but all duties, imposts and excises shall be uniform throughout the United States”

    by saying that I make 50k a year and must pay this tax and you make 20k a year and do NOT have to pay this tax violates the Constitution right there.

  6. darkage says:
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    The full definition of Article I, Section 8..it is very clearly laid out….
    Show me where Congress has the power to enact taxes to pay for health care or even aything close.
    (Genreal Welfare does NOT apply)

    Section. 8. 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;

    To borrow Money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    To establish Post Offices and post Roads;

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    To constitute Tribunals inferior to the supreme Court;

    To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    To make Rules for the Government and Regulation of the land and naval Forces;

    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

  7. help4death says:
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    2076912603-1000-WB332986-PKGA

    darkages wrote:”One big problem with this scenario is that it opens the way for vast abuse of power ‘constitutionally’ by both congress and the President..”

    my response: You are right in seen it as abuse of power, but you are wrong in thinking that the healthcare mandate would open it up. The fact is that the posibility of power abuse was opened since 1942 with Wickard v. Filburn (as john posted).

    darkages wrote: “What if my religion forbids me to see a doctor?”

    My response: the mandate includes exceptions for religion.. you got more reading to do…

    and finally about the commerce among states, the strongest argument of supreme court withholding such mandates is the following:

    “the cumulative effect of your attempt not to participate in the market has an effect on markets”..

    Which basically can means that if you don’t buy insurace, you can affect the local insurance market, then the local insurance market can affect the state’s market, and states markets definetely affect interstate markets…

    I’m not saying that it is not possible for these arguments to be rejected at the supreme court, the truth is it is going to be very interesting to see all these events tourn in the near future…

  8. Ed says:
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    Helpfordeath,

    The religious exception is not all encompassing.

    “the cumulative effect of your attempt not to participate in the market has an effect on markets”.

    This too does not apply. Roscoe Filburn DID in fact SELL his wheat and was in fact participating willingly in commerce, he provided this commerce. He was not forced to participate by government and those people who didn’t buy wheat weren’t regulated! He was forced to destroy his crop not forced to be regulated!

    “Filburn bristled at the Depression-era regulations of the Agricultural Adjustment Act, which set a wheat production quota to avoid excess supplies and low prices. Before Uncle Sam intruded upon his life, Filburn raised a crop of winter wheat on his 23 acres. He sold part of the wheat and used the rest for home consumption and to maintain a herd of dairy cattle and a poultry and egg business. In 1941, the feds told Filburn he could produce wheat on just under half of his 23 acres. He went ahead and planted all the land and went to court claiming that the home-consumption of a trivial amount of wheat couldn’t be touched by Congress’ power to regulate interstate commerce. But the Supreme Court disagreed.”

    So this guy broke the rules (fair or not is another story), but he was not forced to particulate in commerce or regulated.

    With the Monson pot case in 2005, she too was already involved in growing pot!

    Just because people live doesn’t mean they affect the health care market anymore than they affect any other market! Under that perverse thinking people can be mandated by government to by anything! There would be no defense to what government says you have to buy.

  9. help4death says:
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    Ed wrote: “The religious exception is not all encompassing.”

    the bill says:
    “shall not apply to any individual (and any child residing with such individual) for any period if such individual has in effect an exemption which certifies that such individual is a member of a recognized religious sect or division . . . and an adherent of established tenets or teachings of such sect or division. . . .”

    my response: you be the judge of that! =D

    Ed wrote: “He (Roscoe Filburn)was not forced to participate by government ”

    my response: you are right, and I don’t know how this will end up but the final strech of the supreme court ruling was the interstate commerce clause of the constitution. My point here is that historically interstate commerce has been over streched…
    There is one other thing, the governemnt forced businesses NOT TO DENY commerce to blacks (civil rights act 1964), basically forcing business to engage in comerce with blacks… again, it is a strech, but it was never objected…

    This can mean that the supreme court would probably have to go back to all possible related laws written after 1941, and back track… Then do the same (probably) with the civil rights act of 1964.

    Ed wrote: “Just because people live doesn’t mean they affect the health care market anymore than they affect any other market!”

    my response: In fact they actually do…remember the undeniable effect of costs of insurances premiums when an uninsured person that “lives” creates when he goes to an emergency room.. As of today, all of us who pay insurance carry that burden, after the bill, they will carry that burden too…

  10. Greg says:
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    The first question is whether the mandate is valid under Commerce. No other federal law has ever attempted to order all Americans to go buy a product. Clearly, buying a product is commerce, but is a decision not to buy also commerce? If it is, then commerce includes all human action and inaction. The enumerated powers are rendered meaningless. I don’t think the current high Court is going to go for that. If I’m just sitting at home and NOT buying a car and NOT buying insurance, I’m by definition NOT engaging in interstate commerce. There’s nothing I’m doing that would justify the feds to order me to buy a car, insurance, or new curtains for the windows. In all other commerce clause cases, the individual or business was already engaging in interstate commerce even to a very remote degree. Surely just sitting at home is a non-activity that lies outside the bounds of the commerce clause. Further more, if I am ordered to buy a product, isn’t that a taking under the 5th?

  11. Pete Mackey says:
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    Mike – Your post laid out the issues in simple terms. I think that is important, because lay people tend to look to the words of the Constitution and base their conclusions solely on those words. The case law interpreting those words, however, is where the answers lie. Interpreting that case law is anything but simple.

    Bottom line – I agree with your conclusion. Even if you don’t support the bill, try to come up with some changes that will do the country good. Forget trying to repeal it – that is a pipe dream. The problem is, those who didn’t like the bill did not offer their own solutions – they just said no. If you aren’t part of the solution, you are part of the problem.

  12. Ed says:
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    help4death

    I have to disagree with you in part. The cost of everything would theoretically be much cheaper if everyone was forced to buy it. However take note of this. If everyone that drove owned a car had insurance, it would be cheaper for all of us. If uninsured AND insured drivers didn’t get in accidents, it would be cheaper for all of us. We pay the overhead, which includes everything from waste to fraud and theft to any other loss or perceived loss for every good and service. That’s the way it works in commerce, it may not be fair, but it’s life and I’d rather be free to make choices then forced to buy anything.

    Furthermore not everyone without insurance (or with for that matter) goes to emergency room and some of them who do actually pay, like I have when I was younger. I know it sounds “convenient” but my father, who had insurance, went to the emergency room ONCE in his life and unfortunately died shortly there after. When I was younger I went to the emergency room twice as I can remember and both times was billed and I paid out of pocket. I have cost the system nothing. I still pay for my doctor visits in cash though I have insurance. My doctor visits cost me $50.00 cash. Well worth it. Using the argument that the uninsured through six degrees of separation are involved in the commerce of health care, and thus responsible to do “their fair share” one can just as easily say smokers, drinkers, the obese, the reckless, the drug users, etc., etc., etc., whether insured or not, raise health care costs for all of us. So why not mandate people can’t be overweight or drink or smoke or have unprotected sex and on and on and on? Obama smokes! Don’t smokers add to your health care costs! He also rides a bike with no helmet (there’s a pic out there). Is that an example of doing his fair share? What if he fell and had a head injury? If he was wearing a helmet he would have more assurances of not having a head injury. Don’t people how don’t wear helmets contribute to higher health care costs? What about junk food eaters? Should we pass a no junk food mandate? EVERYTHING contributes some sort of commerce when you dig deep enough.

    For the record the uninsured are NOT the problem, not even close to the problem of high health care costs. Allow me to explain..

    The uninsured who don’t pay their health care bills (note: this does not include all uninsured people, some actually pay!) only account for a lame 2.7% of total health care costs a year in the united states (see link below). 2.7 percent! But wait, this number also includes the insured people who don’t pay their deductibles. So the actually cost to the system from the uninsured who don’t pay there medical bills is only included in the 2.7%, they don’t make up the entire 2.7%. Obviously the uninsured are not the problem with high health care costs.

    “Uncompensated care represents 2.7% of the projected total personal health”

    kaiser commission medicare and the uninsured

    http://www.kff.org/uninsured/upload/The-Cost-of-Care-for-the-Uninsured-What-Do-We-Spend-Who-Pays-and-What-Would-Full-Coverage-Add-to-Medical-Spending.pdf

  13. Mark says:
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    “Bottom line – I agree with your conclusion. Even if you don’t support the bill, try to come up with some changes that will do the country good. Forget trying to repeal it – that is a pipe dream. The problem is, those who didn’t like the bill did not offer their own solutions – they just said no. If you aren’t part of the solution, you are part of the problem.”

    A pipe dream? You act as if no laws have ever been repealed. Have you checked the news lately? Do you have some stake in this? Some agenda? You don’t have to be a lawyer to understand the Constitution. It’s not that long of a read and not all that complex. You simply have to have some brains. The very essence of the Constitution is to protect our rights. Perverting and twisting it’s meaning doesn’t change intent and spirit of it. Keep overreaching government at bay, free to live and make your own choices. If people want to roll over and play fetch, that’s their prerogative. That’s what big government counts on. There are many unconstitutional grounds for repeal of this law. Are you familiar with contract law? Are you familiar with what the Constitution says about contracts between private parties? Our founding fathers framed the Constitution EXACTLY for situations like this. So our freedoms are protected. Freedom to choose who we do business with, freedom to privacy and to the fruits of our labors. Protecting what little rights we have left is just a pipe dream to you? and you call your self an American?

  14. help4death says:
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    Ed great link! thx.. I didn’t know it only represented 2.7%

    Ed wrote: “For the record the uninsured are NOT the problem, not even close to the problem of high health care costs. Allow me to explain..”

    But we digress…

    The legal question is about the constitutionality of the bill not about what you consider to be the problem, nor about the morality of giving access to the 60 million uninsured in the wealthiest country in the world, nor all that we can come up to either like or dislike about the bill…

    If we focus on the topic:

    Will the supreme court turn back the healthcare bill on the grounds of an unconstitutional mandate that is not interstate commerce?

    In my opinion: they can’t because they would have to throw back several other precedents.

    Ed wrote: “the uninsured through six degrees of separation are involved in the commerce of health care, and thus responsible to do “their fair share” one can just as easily say smokers, drinkers, the obese, the reckless, the drug users, etc., etc., etc., whether insured or not, raise health care costs for all of us.”

    Again Ed, the problem here is not what you are imagining that could happen, but instead what actually was written in the healthcare bill… Indeed it would seem that the government can force people not to smoke, but since that is NOT in the bill, is fruitless to mention it…

    back to the main question, and in your terms: will the supreme court CONSIDER the uninsured a part of interstate insurance commerce through 6 degrees of separation YES OR NO?

    And my answer is, that based on precedents, they indeed will… and those 6 degrees of separation are a HUGE STRETCH, but that doesn’t mean they might not be considered a precedent….

  15. Ed says:
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    help4death

    Ok, got a little off topic. Keep in mind federal gun ban laws have been overturned and recently the Supreme Court court blocked the ban on corporate political spending. Do you know how many lawyers blogged about this? That there was NO CHANCE this would be overturned? I read many articles, watched them on the news and cable shows and youtube, they sited all this legal precedent and basically laughed it off. I don’t think I saw a single law “expert” argue it would be overturned… yet it was. This was a landmark decision and the courts sometimes surprise us.

    My point, no one knows what will happen. I’m offended when law “experts” say trying to repeal this is a pipe dream. That’s offense to me as an American. I’m sure the same was said about every law the Supreme court has ever overturned. We will see.

    I think sighting the commerce clause is a very weak link and I hope when this does get to the supreme court (and it will, there is NO chance they will refuse to hear the case), they stand by the oath to uphold the Constitution and give us our freedom of choice back.

  16. darkage says:
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    having done a little research in Wickard vs Filburn, and I do not see how that can apply to a mandate for health Insurance.

    Filburn tried to grow more wheat than the Govt said he could to stabilize the economy (keep it from being flooded with wheat)

    They said that even though his wheat never entered the market, it did have an effect on how much chicken feed he bought and therefore the Government could restrict how much wheat he could grow.

    In no fashion whatsoever did the Supreme Court state that he could not grow wheat (only to that certain extent of volume) nor that he had any obligation to purchase Chicken Feed.

    Filburn could have easily gotten rid of his chickens and most likely avoided any issues with the Interstate Commerce Clause thereafter.

    He could have shut down his farm entirely and had no further obligations under the Interstate Commerce Clause.

    He also could have sent less wheat to the market and used more from the allowed prouction/growing volume to feed his chickens instead of buying chicken feed and still avoided any issues with the Commerce Clause.

    in all of the above scenarios, Filburn had a choice.
    Under this ‘mandate’, the people are not given a choice.

    They are being COMMANDED to buy a product or pay a fine or go to jail… the key point here is the loss of the right to choose.

  17. Ed says:
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    I just read a quote from Newt Gingrich (I’m not a fan). He stated:

    “Based on a 1992 Supreme Court decision which said that the federal government cannot punish you for failure to do something. I think that there’s an outside chance the suit will hold up. And that that will stop the individual mandate at the federal level.”

    I’m trying to find the case he’s referring to.

  18. John says:
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    We’ve strayed far afield from any discussion about the perceived “inactivity” problem with the health care bill.

    However, there is certainly no general rule in law that the government “cannot punish you for failure to do something.” One topical example among many others: the census. The government can impose a fine for failure to answer the census.

  19. darkage says:
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    Actually John, that is the whole basis for the debate; declaring inactivity to be considered under the Commerce Clause (the right to force commerce)

    As far as ‘theres no general rule in law’ aspect, since there IS no rule of law (under the Constitution) be falls to reason that the Government does NOT have the right to punish you for failing to do something (According to the Tenth Amendment, the government of the United States has the power to regulate only matters delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these)).

  20. John says:
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    Darkage,

    In constitutional law, an individual “right” is conceptually distinct from the general limitations on the powers of the federal government (e.g. the Section 8 enumerated powers).

    The reason the “inactivity” point and the “Newt Gingrich” point are different is as follows: even if you concede that there is no general right against compelled behavior, you need not give up the original point: that “inactivity” is beyond the reach of the Commerce Clause because it is not “commerce.”

    As to the argument you make in the second paragraph, I don’t follow . . .

  21. darkage says:
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    Forcing us to purchase something now means that the Government owns our paychecks, not us.
    Which would mean that we now work under the purview of the US Congress and the President, buying what they declare allowed or mandated.

    The Constitution FORBIDS any type of indentured servitude.
    (14th Amendment)

  22. time to leave the country says:
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    i believe congress in the 1930’s excluded insurance from interstate commerce.

    Then there’s always this route Mr.Barrnett at georgetown points out in the washington post:

    Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and three-quarters of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

  23. John says:
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    Darkage,

    The Thirteenth Amendment prohibits “involuntary servitude except as a punishment for crime,” and refers to the forced performance of a services contract. An example: if we enter into a contract under which I promise to cut your lawn, and I don’t do it, you can sue me for money, but you can’t actually force me to cut your lawn. A general requirement to make a purchase or pay a tax would not implicate the Thirteenth Amendment, because it wouldn’t require forced labor in the same way.

    Again, your argument that the Commerce Clause doesn’t reach the “inactivity” of failing to purchase an insurance policy is at least plausible (though ultimately not correct, in my view). However, any claim that government, as a general matter, can’t “force you to do something,” is unsupportable

  24. Pete Mackey says:
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    To Darkage, or anyone who shares her view, I will be happy to deposit $1000 with a neutral escrow, subject to you risking $500 in the same fashion. When the SCOTUS rules, the $ goes to the charity designated by the winner. If you are bolder, I will consider raising the ante.

  25. Facebook User says:
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    We can donate to Rush for his new home outside the US. Didn’t he say he was leaving the US if the bill passed? Here’s another bet, that within 3 years, the dust will settle and mostly everyone will see it wasn’t the end of America, that it works, that it helps folks, and the critics are benefitting by it, like happened with Medicare, Social Security, Equal Rights Amendment, Civil Rights Amendment. etc. etc. I’m sure there are some who didn’t like those big events, but are not returning their SS checks to Uncle Sam when they come in.

  26. up arrow

    I’m not going to get into the debate about the constitutionality of the law.
    What I will say is that the incivility of people like Ed in his initial comment doesn’t surprise me. What is it about people who, when they disagree with you on an issue, feel it necessary to hurl insults or in the case of some others, to spit on people, commit violence, etc? Ed, your first instinct was to attack Mr. Ferrara personally rather than engage in a rational discussion of the issues.
    Maybe you don’t believe in democracy. If we don’t like what our representatives do, we can exercise our right to vote them out of office. That’s not a very difficult concept. Instead, we have demagogues like Sarah Palin brazenly lying to her supporters about what the law means. Vote for her next time she runs if you think she would do a good job.
    From the rest of your comments, you seem like a reasonably intelligent person. So why did you feel obligated to act like a child in your first post?

  27. rye says:
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    Darkage, you are aptly named..You truly live in a dark age…
    When you read “punish” you need to understand that the term is applied to CRIMINAL SANCTIONS…and it’s true…The government would be prohibited from applying CRIMINAL SANCTIONS in the context of failing to do something…HOWEVER…PUNISH does NOT apply to CIVIL sanctions…
    Get it?
    So…while you are in no danger of going to jail for failing to purchase insurance…You’d be a fool if you expect not to be fined…and if you take the position that well, I can pay a $750 fine, cheaper than I can buy health care insurance, that’ll work for the first year, but wait till next year,when the fine doubles..etc.
    Individual Mandates:
    Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don’t have to abide by it — just set up your own plan.
    The Oregon Democrat isn’t inviting opponents to defy the newly-enacted health care law. Instead, he’s pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.
    For one of the first times in public — legislative language Wyden authored which “allows a state to go out and do its own bill, including having no individual mandate.”
    It’s called the “Empowering States to be Innovative” amendment. And it would, quite literally, give states the right to set up their own health care system — with or without an individual mandate or, for that matter, with or without a public option — provided that, as Wyden puts it, “they can meet the coverage requirements of the bill.”
    “Why don’t you use the waiver provision to let you go set up your own plan?” the senator asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

  28. rye says:
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    Darkage, you are aptly named..You truly live in a dark age…
    When you read “punish” you need to understand that the term is applied to CRIMINAL SANCTIONS…and it’s true…The government would be prohibited from applying CRIMINAL SANCTIONS in the context of failing to do something…HOWEVER…PUNISH does NOT apply to CIVIL sanctions…
    Get it?
    So…while you are in no danger of going to jail for failing to purchase insurance…You’d be a fool if you expect not to be fined…and if you take the position that well, I can pay a $750 fine, cheaper than I can buy health care insurance, that’ll work for the first year, but wait till next year,when the fine doubles..etc.
    Individual Mandates:
    Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don’t have to abide by it — just set up your own plan.
    The Oregon Democrat isn’t inviting opponents to defy the newly-enacted health care law. Instead, he’s pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.
    For one of the first times in public — legislative language Wyden authored which “allows a state to go out and do its own bill, including having no individual mandate.”
    It’s called the “Empowering States to be Innovative” amendment. And it would, quite literally, give states the right to set up their own health care system — with or without an individual mandate or, for that matter, with or without a public option — provided that, as Wyden puts it, “they can meet the coverage requirements of the bill.”
    “Why don’t you use the waiver provision to let you go set up your own plan?” the senator asked those who threaten health-care-related lawsuits. “Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

  29. John says:
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    I don’t think the somewhat fuzzy distinction between a “civil” and “criminal” sanction can cleanly resolve this debate. In any event, my understanding of the bill is that failure to procure proper insurance results in a fine; failure to pay the fine results in imprisonment. Presumably, anyone that opposes the individual mandate as a matter of principle also opposes paying the fine associated with the mandate. Inasmuch as exposure to jail time is a hallmark of crime and punishment, it is not clear to me that the provision is “civil” rather than “criminal.”

    The claim that government would not be able to impose “criminal sanctions in the context of failing to do something” is plainly wrong, for reasons addressed in previous posts.

    I’m not familiar with the “Empowering the States to be Innovative” amendment to the bill. However, I would imagine that the States would be required to impose comparable requirements on insurance companies — including a prohibition against “pre-existing condition” discrimination. As the President has explained, such a requirement could not be implemented without an individual mandate.

  30. rye says:
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    No..failure to pay the fine does not result in imprisonment..
    That’s a Palinesque rumor, with similar veracity to “Death Panels”
    and Rationed Care.
    The distinction is not fuzzy at all.. You do hear terribly mixed up versions..i.e. that O.J. was found guilty of murder and ordered to pay Mr. Goldman a considerable amount of money.
    The difference is in the language. In a civil suit, O. J. was found LIABLE…that is, Responsible…That requires what’s referred to as
    “a preponderance of evidence” i.e. 51%..
    To be held criminally responsible, the burden of proof is “Beyond a Reasonable Doubt” That doesn’t mean ANY doubt, it means beyond a doubt that a reasonable person might have, after hearing the evidence.
    Back to this case;
    There is no criminal sanction…that is, the person who fails to buy insurance, would be fined. If he failed to pay the fine, a CIVIL judgement would be taken against him..(and of course he’d be fined again..and a whole lot more) A judgement could result in having his wages garnisheed, or having money taken out of his bank account, or having a lien placed on any property he may own..but not jail, not probation or anything like that.
    “Death Panels”
    Since the very first health care policy was written, by the first insurance provider to write them..EVERY insurance company, has a board…generally comprised of physicians…to rule on EVERY CASE.. they’re told to be very strict in their rulings…and their salaries reflect their strictness…This has absolutely nothing to do with Obama, or any government employee.
    Obama’s health care bill does NOT include a government board like that…it does not include a government insurance company, It does not include a government employee to sit on the boards of the insurance providers.
    Health care, under Obama’s bill would continue to be provided by the same insurance comapnys that exist now…
    Rationed Care
    Again..as in the Death Panel myth…nothing will exist that does’nt exist now…and no government employee or agency will have anything to do with what care an insured receives..
    The problem there is that the right has a very well developed propaganda wing, which has deliberately misinformed it’s audience…
    I’m happy to discuss this or any other question you may have on health care…drop me a line at your convenience.
    rye

  31. help4death says:
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    rye!

    your comments are great!…I didn’t know about the details from O.J. I was part of the missinformed!!…

    thanks for your level of detail in every argument you make!

  32. John says:
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    Rye-

    You’ve correctly contrasted the general “burdens of proof” in criminal and civil court. They are beside the point.

    “Liability” is generally a paired relationship between two private parties, stemming from a case in “civil” court. This is not the same as your reference to “civil sanctions” from your previous post.

    I assure you that the willful failure to pay a tax is a federal crime.

  33. rye says:
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    The right has an amusing way of re defining words.
    By calling civil penalties taxes, as the knee jerk right is inclined to do, when the term “civil penalty” doesn’t fit their agenda, You’ve made yourself look good in the eyes of the naive, the gullible and the downright ignorant…the Homer Simpson Brigade of the Army of Failure, recruited by the right wing propaganda arm..but they’re not…and those with half a brain recognize your little exercise in futility.
    What if you’re fined littering? Is that a tax?
    Apparently you’ve been communing with the right, who live and breathe to take down America..A civil penalty is not a tax, it’s a penalty for a CIVIL violation…but like “liberal” “Conservative” “Socialist” and “Marxist”, the term TAX is being deliberately twisted to mean whatever those in whose best interests, lie the downfall of America. I’ll comment further soon.

  34. rye says:
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    Slowly, the simple fact dawns on the electorate, that the Democrats have passed a moderate, Republic an health care reform. That’s what it is. The frenzy on the right is pure fear of stepping out of line with the Republican politburo, and getting shipped to Siberia.
    This lockstep mentality is rare in American history, Here is a grand old party, frozen…suspended..mesmerized..in thrall to a gaggle of showboats and radio entertainers, and small mobs of fist shakers, standing staunch for the unreality and no Republican elected official dares say “lets not be nuts”
    Much will be written about this in years to come, and it will not be kind to the likes of Congressman Boehner and Senator McConnell.

  35. John says:
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    Rye-

    You’ll note from my previous responses on this site (had you paused to read them) that I originally posted to defend Mr. Ferrara’s position: that the health care legislation is constitutional. In your zeal, you’ve attacked an ally.

    My “little exercise in futility” was merely an attempt to correct your understanding of various legal concepts.

    Indeed, before you claim that the individual mandate is not a “tax,” but is rather a “civil penalty,” you should note that the overwhelming majority of legal academics, in defending the bill, have described the mandate as a lawful exercise of Congress’ taxing power (as, by the way, did Mr. Ferrara in his original post).

  36. rye says:
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    John.
    First, I owe you an apology, which I offer. I hope you accept it.
    I re read Mike…but I am not aware that the penalty we’re discussing is contained in the tax code.
    I am aware that it’s in the Health care Bill, but I’ll have to check on that…

  37. rye says:
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    John
    As of now, my understanding is, that..law mandates that failure to purchase health care insurance will result in a judgement, and your tax return will become a source from which that judgement can be collected.
    I’m not done researching, but for now, that’s what I’m reading…

  38. John says:
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    No worries.

    Though I’ve never actually been able to locate the “individual mandate” within the health care bill, I thought the provision was going to be enforced by the IRS (see http://factcheck.org/2010/01/enforcing-the-individual-mandate/).

    I think the administration originally took the position that the bill was not a “tax.” Perhaps they’ve backpedaled because of arguments that the bill is constitutional under the tax power (see http://articles.latimes.com/2009/oct/06/opinion/oe-chemerinsky6) (see also http://volokh.com/2010/03/25/president-obama-claimed-that-the-individual-mandate-is-not-a-tax/).

    If the fine for failure to comply with the individual mandate is a “tax,” willful failure to pay the tax is likely a criminal offense. Even if it is a “civil penalty,” failure to pay might still result in quasi-criminal consequences. In my home state of New Jersey, for instance, repeated failure to insure a motor vehicle can result in jail time (see N.J.S. 39:6B-2).

    In my experience, the term “judgment” in the sense you mean is reserved for disputes between private parties in civil court. Where a citizen owes a special obligation to the government to pay a “civil penalty” (e.g. for a traffic violation), the government does not need to obtain a “judgment” to hold that person accountable; indeed, the government can jail you for willfully failing to pay (see e.g. N.J.S. 39:5-36).