The PATRIOT Act of Health Care

In my column tomorrow, about challenges to the individual health insurance mandate, I mention Idaho's Health Freedom Act (PDF), which declares that "every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty." The law notes that "the power to require or regulate a person's choice in the mode of securing health care services, or to impose a penalty related thereto, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment." Upon signing the law four days before Congress enacted ObamaCare, Gov. C.L. "Butch" Otter, a former Republican congressman, had this to say:

Congress and the White House are working out their scheme for pushing through a healthcare "reform" bill that has more pages than the U.S. Constitution has words. I guarantee you that not a single member of the House or Senate has a complete understanding of that legislation any more than they understood all the implications of the USA PATRIOT Act back in 2001. What the Idaho Health Freedom Act says is that the citizens of our state won't be subject to another federal mandate or turn over another part of their life to government control.

Dave Weigel profiled Otter in the November 2006 issue of Reason.

Comments

[Congress]

I guarantee you that not a single member of the House or Senate has a complete understanding of that legislation any more than they understood all the implications of the USA PATRIOT Act back in 2001.

Ah, but collectively we do have complete understanding.

[Ben Franklin]

You bastards better hang together or you're sure to hang separately.

[Madame DeFarge]

Don't worry - I'm taking down names.

[The Libertarian Guy]

The PA has put a lot of people on watch lists that don't belong on watch lists. God knows what kinds of new watch lists people will be on now.

"Food terrorists". I can see it already.

Oh, and fuck Chad and Tony.

[K-Y]

I believe they are handling that between themselves.

[Mr. FIFY]

Ba-dump-bump!

[Thomas]

I already wanted to move to Idaho anyway, but this sealed the deal.

[JW]

"I would like to have seen Montana."

[Frank Zappa]

Movin' to Montana soon

Gonna be a dental-floss tycoon...

[Almanian]

I'm living in my own, private Idaho

[ed]

We all are.

[Enough About Palin]

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[Tim]

How can they be so heartless? WHAT ABOUT THE CHILDREN?

[Pro Libertate]

I wonder if this could be a real fight between the states and the federal government? Love to see a new breed of federalist arise.

[neoconfederate swine]

I'd rather see secession -- it makes sense, since the last few dumbass states to stay in the Union get stuck with the debt. It's possible that the feds would attack, but it's a little harder to justify in this day and age.

[LOLcat]

I can haz Constitutional Convention?

[Pro Libertate]

Which, of course, is likely more dangerous than good. We'd probably just lose anything resembling a government of enumerated powers.

[R C Dean]

Tell me, Pro L, where I might find anything resembling a government of enumerated powers.

As I argued the other day, I am less and less convinced that we have anything left to lose in a Constitutional Convention.

[Pro Libertate]

I know, I know, I thought about your comment when I wrote that. I don't like either option--trying to put the government back in its cage through the courts and the electoral process, or doing so through a Constitutional Convention.

One thing to keep in mind: At least we've got the words on our side and some precedent in the current situation. A new constitution could end all doubt and confirm the status quo.

[dennis]

Constitutions are words on paper. Ours is held up as some sort of divine document, when in fact it is evil, it legitimizes a criminal organization. To paraphrase Spooner, either the Constitution has permitted the present state of affairs or it has been powerless to prevent it, in either case it is unfit to exist.

[Kevin]

This Constitution screwed the pooch, therefore all Constitutions are evil?

I'm not sure if that's an example of a red herring, a strawman, or "cum hoc, ergo propter hoc".

I am sure you're an idiot.

[Kevin]

This Constitution screwed the pooch, therefore all Constitutions are evil?

I'm not sure if that's an example of a red herring, a strawman, or "cum hoc, ergo propter hoc".

I am sure you're an idiot.

[armchair philosopher]

It's words on paper. Of course it's powerless, it's just a statement of ideas. If human beings fail to follow the ideas and misery results, it's a little stupid to blame the piece of paper. Might as well blame the bible for failing to stop sin.

[shrike]

I told you dimwits yesterday - there will be no serious challenge to the mandate requirement (as odious as it is) due to the Supremacy Clause of the US Constitution.

[WTF]

So your proposition is that there's no way to challenge an unconstitutional federal law, because of the Supremacy Clause?

[Isaac Bartram]

IANAL but IIANM the Supremacy Clause of the US Constitution only applies if the law in question falls within the federal government's enumerated powers.

Now, maybe the mandate does or maybe it doesn't. But this seems as reasonable a grounds on which to challenge it as any.

[John Thacker]

Except an Enumerated Powers argument won't get past a Circuit Court of Appeals, much less the Supreme Court.

[JW]

Issues involving disputes between states or sates and the Federal gummint go directly to the court, IIRC.

[shrike]

Good point.

The 16th Amendment gives the feds the right to collect monies on income - which is what the mandate is. Its an income tax.

Thus - the IRS will collect said monies.

There is no real mandatory compliance - there is only a tax on income.

[WTF]

1. The federal government has no "rights" - it has certain powers.

2. There is no real mandatory compliance? O.K., try exercising your "option" to not comply and let us know how that works out for you.

[John Thacker]

He's correct, it's a tax.

Of course, the Administration refuses to admit it's a tax.

[WTF]

Sorry; I misread the OP - I thought he was referring to mandatory compliance with income tax.

[Zeb]

If it's a tax then doesn't it have to originate in the House?

[John Thacker]

If it's a tax then doesn't it have to originate in the House?

Sigh. It's such a stupid loophole I get tired of explaining it, but good question.

1) Yes, it's a revenue bill, so it has to originate in the House, but

2) Technically, the Senate bill originated in the House. The House passed a shell bill, a technical bill having to do with revenue at the beginning of the session. Senate Majority Leader Reid held it in his pocket, and then at the start of the health care debate, offered an "amendment in the form of a substitute" for the entire original House bill. Even though the Senate bill is nothing like the original (vaguely named) House revenue bill, it still counts as House originated. After it was passed by the Senate, it then technically went back to the House as an amended House bill for the House to agree upon, or not.

3) Sounds like bullshit to you? Well, yes, but it's not the first time this trick has been used.

[legit?]

Has the practice ever been challenged in SCOTUS? It seems to be a brazen end-run around the clear intent on the Constitutional article.

[R C Dean]

The 16th Amendment gives the feds the right to collect monies on income - which is what the mandate is. Its an income tax.

This approach lacks any limiting principle, as it allows the government to impose any financial penalty it wants on any behavior it wants, so long as it calls it a "tax."

I suppose that when the Republicans pass a tax of $1,000,000 on each abortion, shrike will nod along and say its perfectly Constitutional.

[John Thacker]

This approach lacks any limiting principle, as it allows the government to impose any financial penalty it wants on any behavior it wants, so long as it calls it a "tax."

Correct. This is why as Professor Volokh has argued, slippery slope arguments are not clearly wrong. The slippery slope does apply here. Each tax preference and deduction makes it a little easy to stretch it the next time.

The power to tax, taken to its limit, is the power to destroy.

[shrike]

So the tax code is uneven in its application? Are you surprised?

As for a prohibitive tax on abortion - "thems the breaks". It would be Constitutional. I am pro-choice as a matter of liberty.

The GOP would suffer worse than it will this fall though.

Conservatism is dying.

[John Thacker]

Conservatism is dying.

Incorrect. Libertarianism is dying. The passage of this bill cements it. There will always be a more conservative party, but this bill will bind even more people to government entitlement.

[Pro Libertate]

Since most of the Western world expects the GOP to take back at least one house in November, I'm not sure that's true. Unless you mean the libertarians. Yeah, we're so dead that we're undead.

[John Thacker]

Since most of the Western world expects the GOP to take back at least one house in November, I'm not sure that's true.

OK, you're right. If the GOP takes back the House, and the reason that they take back the House is seen to be libertarianism, then that will definitely help in the short run.

In the long run, unless this is repealed, libertarianism will shrink further. Bills like this create permanent dependents. The fact that the bill doesn't do much until 2013 and 2014 creates openings to repealing large portions. (Hell, even Mitch McConnell wants to run on repeal.)

In general, and in broad terms, politicians try to get re-elected. It's too much to expect much more (which is part of why this bill was so surprising.) If running against this gives the GOP a majority, or great gains, then they'll act more libertarian. Conversely, if they don't make gains, then the Frums of the world will win.

[Token Zombie Libertarian]

BRAINS!!!!

[The Libertarian Guy]

Yeah, shrike, but what about that pesky Tenth Amendment? Hmm?

Yeah, that's what I thought you'd say.

[WTF]

The Supremacy Clause is not limited to enumerated powers - it states that laws "made in pursuance" of the Constitution are the supreme law of the land. The general notion is that in order for a law to be made "in pursuance of" the Constitution, it can't be an unconstitutional law. A law can be unconstitutional for reasons other than exceeding an enumerated power.

[R C Dean]

The Supremacy Clause is not limited to enumerated powers - it states that laws "made in pursuance" of the Constitution are the supreme law of the land.

But you cannot make a law in pursuance of something that's not in the Constitution. Hence, the Supremacy Clause is not itself a grant of power, merely a statement that the exercise of enumerated powers is the supreme law.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[Pro Libertate]

Supremacy only works if the power exercised is constitutionally authorized in the first place. Whether the mandate (or other questionable aspects of the bill) will be successfully challenged is another matter, of course, but supremacy isn't the issue.

[shrike]

Supremacy only works if the power exercised is constitutionally authorized in the first place.

Absolutely not true.

Supremacy applies on treaties and all Congressional law approved by the president.

[WTF]

Again, your proposition is that a patently unconstitutional law is the supreme law of the land, because of the Supremacy Clause, regardless of the infirmity of the law itself?

WRONG.

[shrike]

And the Patriot Act violated the 4th Amendment.

Welcome to the Bush Era of the Unitary Executive.

[John Thacker]

And the Patriot Act violated the 4th Amendment.

The Courts have not ruled such, nor have they ruled that the Supremacy Clause or any other theory meant that the Fourth Amendment didn't apply.

Yes, the Bush Administration argued that, e.g., Eisentrager v. Johnson meant that the Fourth Amendment and other Constitutional guarantees didn't apply to POWs held outside the borders of the US.

However, everyone agreed that the Fourth Amendment still existed, and the courts certainly have analyzed the PATRIOT Act under existing Fourth Amendment precedent. Indeed, in some ways the Court has chosen to narrow existing precedent and make the Constitution apply more to aliens and foreigners than it did under WWI and WWII precedents.

[John Thacker]

Of course, the most popular cases you're presumably thinking about, shrike, don't actually have to do with the PATRIOT Act.

[shrike]

The action that pissed me off was when Cheney allowed energy companies to violate the Clean Air Act. He assured there would be no enforcement of such.

The court ruled against Cheney but their ruling was ignored.

Cheney should have been jailed (again).

[cynical bastard]

We'll get to it next.

[The Libertarian Guy]

And McCain-Feingold took a huge shit upon the First Amendment.

Your turn, shrike.

[Mike]

And if Im not mistaken, didnt the Supreme Court knock down most of the provisions in the McCain-Feingold Act?

Hell, I remember the SOTU address where the Supreme Court was jeered by Obama and Congress because of it.

Think the Court might have an axe to grind?

[Pro Libertate]

No, it doesn't. If the law is unconstitutional, the states likely have standing to challenge it. How will the federal government force the states to comply if it doesn't have the power to do so in the first place?

[John Thacker]

Supremacy applies on treaties and all Congressional law approved by the president.

Yes, but the issue of the treaty running up against the enumerated powers in the Constitution still stands. See for example Reid v. Covert.

"[T]his Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,"

The Supremacy Clause cannot be used to override the Constitution.

[Pro Libertate]

Yes, the whole point is that the Constitution is the supreme law of the land.

I do not understand the strident defense of unlimited government coming from the left. Don't be surprised when all of this work to unshackle the government gives some rightist the ability to abolish elections or something equally tyrannical. That's how these things usually work.

[shrike]

I agree. The system of checks an balances has broken down.

The courts have no enforcement power over the Bush/Cheney era of Executive power.

Obama is merely riding their coattails.

[John Thacker]

The courts have no enforcement power over the Bush/Cheney era of Executive power.

Incorrect, the Courts have enforcement power, and have used it. As bad as the PATRIOT Act is, pretending that it allows things it doesn't is counterproductive.

Obama is merely riding their coattails.

Just as they were riding Truman and FDR's and Wilson's, yes.

[hurly buehrle]

Fabian Tassano may whine entirely too much about his career, but his "the backlash will be authoritarian, not libertarian" prediction is probably spot on.

[bookworm]

What are the chances that the Constitutionality of this new law will be challenged in the courts and that the law will be struk down?

[John Thacker]

Challenged in some court? Close to 100%

Chance of being stuck down? About 0%.

[Pro Libertate]

You know, I keep reading that opinion in various places, but I'm not sure I agree. This has got a real bridge too far feel to it. Just need five votes.

[WTF]

If Congress passes a law that is unconstitutional, whether because it exceeds congressional authority or because it violates a protected right, the law is unconstitutional. So who gets to challenge it? Your saying that because it's the supreme law of the land, that's it, we're stuck with it?

[Seer]

It's not an issue of the supremacy clause. It's an issue about whether this law falls within the bounds of the commerce clause. Even with its current bloated definition, the individual mandate very well may fall outside of the scope of the clause, thus putting such an act beyond the scope of Congress.

[shriek]

Goddamn teabaggin dimwits, I done told you yesterday. Maybe you Hannity-fluffing christfags should listen to me.

[WTF]

Can I get a LOL.

[shrike]

Excellent!

And I thought I was an unknown here amongst the jewels of conservatism.

[T]

No, you're an old worn-out troll. We recognize those easily.

[shrike]

Sorry to interrupt your circle jerk.

[R C Dean]

Familiarity breeds contempt, shrike.

[JW]

jewels of conservatism.

Hey now, no reason to get nasty.

[lindava]

The very idea that a "supremacy clause" added to the Constitution should make all discussion of anything that Congress does moot, is absurd on its face, since it would, in fact, abrogate every other part of said Constitution.

[Seer]

On top of which, amendments supersede the original text. Amendments such as the 9th and 10th.

[ed]

For such a wonderful victory of the People over Special Interests, the left sure is spending a lot of time today defending what they claim to be self evident. It's almost as if they don't believe their own propaganda. Do winners usually run this scared?

[Jersey Patriot]

Valiant effort, but I don't see this lawsuit succeeding. Instead, the states opposed to it will probably pass laws forbiding state compliance or assistance with enforcement, and the Feds will simply have to delay implementation indefinitely. q.v. Real ID.

[SIV]

I don't have to click on Weigel's greatest hits to remember Otter being the deciding vote in favor of Bush's Government "Health Care" Medicare Part D

Fuck all these RINOs

[SIV]

Republicans Butch Otter (ID-1) and Jo Ann Emerson (MO-8) switched their vote to "aye" under pressure from the party leadership. The bill passed by one vote, 216-215.

[kally]

The citizens' right can be guaranteed if laws do not work, however, the reform may support other good idears which can improve the general current health care. I prefer to konw more details than judge it unjustly,such as the accurate provosion, the penalty and how to run it and so forth.
my belief: konwing it and changing it better if possible.

[dave tribbett]

Good post here defining the Patriot Act and its ability to impose martial law on the country. Obama has consistently mislead American's about his intentions, one lie after another. Thanks for the post.

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