Constitutional Law

Mandate Madness

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Richard Cordray and Tom Miller, attorneys general for Ohio and Iowa, respectively, have an op-ed in Politico explaining why they've chosen not to file suit against ObamaCare, and why they don't buy arguments that the individual mandate to purchase health insurance is unconstitutional. It's not even remotely convincing. They write:

Health care now accounts for one-sixth of our gross domestic product. The costs of health insurance pose fundamental economic challenges to the competitiveness of our American common market. We need only look at the existing Medicaid and Medicare programs to see that this issue is national in scope.

This tells us exactly nothing. Federal programs like Medicare and Medicaid are, well, federal programs; of course they span state boundaries. But that's not the issue. Nor are critics claiming that "health care," broadly defined, is not national in scope. The issue is whether the individual mandate is justifiable under the Constitution's Commerce Clause, which gives Congress the power to regulate interstate commerce.

They go on:

The "individual mandate" now drawing so much attention mimics a law already on the books in Massachusetts—a law broadly accepted and never invalidated by the courts.

And there is a good reason for that requirement. When an uninsured person ends up in an emergency room needing urgent and expensive treatment, someone has to pay for it—through either higher premiums or higher taxes—and "we" are that someone.

Once again, this tells us nothing. Again: The Commerce Clause deals with Congressional power to regulate interstate commerce. So a mandate that applies within a state is entirely beside the point.

As is uncompensated care. Even if you believe that uncompensated care has interstate effects, it doesn't provide a rationale for a mandate because not everyone who declines to purchase insurance eventually seeks uncompensated care. The lack of insurance itself is still not an interstate transaction. (And while we're at it, uncompensated care is less of a problem than many reformers seem to think.)

They continue:

That is also why state laws require many millions of Americans to have car insurance—a few irresponsible citizens should not be allowed to heap the costs of their behavior on the rest of us.

Once again, car insurance mandates are state laws, and therefore beside the point. Car insurance is also required only for those who want to drive, not in order to live. Next?

Nobody can seriously argue that the health care industry operates only in "intrastate" commerce and that the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.

As far as I'm aware, no one is arguing that the health care industry, as a whole, "operates only in intrastate commerce." That's because whether or not it's true, it's not the relevant question. The question is whether the someone who does not purchase health insurance is engaging in a transaction that meets the legal definition of interstate commerce. How can not buying something qualify as interstate commerce? That's a question that Cordray and Miller never really address.

The best case they make (it's a low bar) is that "if the commerce clause authorizes Congress to prohibit the cultivation of marijuana for personal medical use because it has economic effects, as the Supreme Court ruled in Gonzales v. Raich, then surely it authorizes Congress to regulate health care." But that case, which Reason Associate Editor Damon Root has described as "a disastrous and deeply flawed ruling," is hardly the sort of ruling anyone should celebrate. Cordray and Miller may be right that challenges to the individual mandate don't have much chance. As I've written elsewhere, I suspect challenges to the individual mandate won't survive Supreme Court challenge. But they doesn't mean they shouldn't, or that Cordray and Miller's half-baked case is the least bit convincing.

On a final note, it's interesting that they compare the mandate to the draft. The CBO, in describing the mandate as "an unprecedented form of federal action," also said that the closest precedent for the mandate was the draft. If that's the route mandate supporters want to go, that's fine by me. But "the mandate—it's just like the draft!" doesn't strike me as the sort of messaging that the public is likely to eat up.

Jacob Sullum wrote about the crazy constitutional logic of the individual mandate here. Damon Root noted one legislator's lack of concern for the constitutionality of the mandate here and looked at how the mandate has revived debates about the Commerce Clause here.

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  1. Fuck Tom Miller

  2. Whatever.

    Remember, every state Attorney General sees him or herself as the next governor.

    Politics only! Not substantive logical legal argument.

    1. I’ve heard better arguments from retarded fetuses and you know what happens to them…

      1. Carry on many arguments with retarded fetuses, do we?

  3. Sorry, Kinnath said it better.

  4. two team blue attorney generals see polls move in their states. News at 9.

  5. Don’t shoot me, but here’s a funny named book store:

    http://www2.nationalreview.com…..040110.jpg

    1. Ready, aim, fire, but make sure don’t shoot the wong fook.

    2. That is the bookstore you have gone to if they don’t have the book you want.

  6. the commerce clause

  7. “Just like the draft!” – way to kick the right-wingers in the crotch. It’s fine to project righteous anger against a program that forces you to insure against risks to your life and violates the 10th Amendment, but it’s harder if you’ve got a history of supporting a program that forces you to *take* risks to your life and also violates the 13th Amendment.

    1. Yeah, b/c FDR and LBJ never supported/used the draft. And the last Senator to talk about reintroducing the draft was Joe Biden back i 2005.

      He’s not in the Senate anymore though. I heard he got some BS gov’t job.

      The left opposed the draft in the 60’s b/c they opposed fighting communists, not b/c of some moral objection to the draft itself.

      1. Indeed. It’s always Democrats proposing draft reintroduction as an equalizing measure. They argue that it’s unfair for only poor people to have their kids in the military.

    2. And let’s not lose sight of the fact that income taxes are a second-order draft. It doesn’t tell you where and how and when to work, but you know the rest …

    3. You do realize that the draft was ended during Richard Nixon’s term, yeah? Now, if you were arguing that Nixon was a lefty (which has some basis), fine, but the fact is that the most massive conscription of troops occurred during the terms of Democratic presidents supported by Democratic majority Congresses.

  8. When an uninsured person ends up in an emergency room needing urgent and expensive treatment, someone has to pay for it?through either higher premiums or higher taxes?and “we” are that someone.

    This is remarkably close to the poor-people-use-emergency-rooms-for-primary-care argument for universal coverage. Anybody care to wager what effect, if any, the mandate will have on poor people using the emergency room for primary care?

    But “the mandate?it’s just like the draft!” doesn’t strike me as the sort of messaging that the public is likely to eat up.

    The general public as a whole, no. As far as Team Blue is concerned, they seem to have nary a qualm with the idea of bringing back the draft. In fact, I recall hearing it proposed a number of times throughout the last administration. Ideologically the mandate is pretty consistent.

    1. I wouldn’t take the bet. My wife tells me the people most prone to use the emergency-room-as-primary-care in our locale are those already covered under Tenn-Care.

      See, it’s easier to just show up there than to go through the trouble of making an appointment and waiting for an opening in a doctor’s schedule.

  9. yeah, we see how well that supreme court case worked out, it hasn’t stopped any of the states mmj programs and more states continue to enact mmj programs. health care nullification laws might work similarly.
    oh yeah and how does this not violate the 5th amendment’s guarantee to due process?
    how is it not excessive, cruel, and unusual to fine the poor, which is prohibited by the 8th amendment?
    how is it not a 1st amendment violation to give benefits to the members of the Anabaptist (Amish) church, but refuse to give that benefit to other religions and atheists?
    how does this not violate the 9th and 10th amendments that give us the right to decide what kind of health care we want, according to the constitution such a right would be left to the states and the people.
    couldn’t this also be a 4th amendment violation, an unreasonable search of our health care information and a seizure of our money?
    or how about the 7th amendments guarantee to a fair and speedy trial by jury for civil court cases? (which ties into due process)

    1. and about the 7th amendment point, I am talking about how fines are a civil penalty.

    2. I have heard Christian Scientists and Muslims are exempt from the mandate as well. But who knows what really in that awful piece of legislation?

      1. Wonder how the Mennonite and – especially – Amish will take to being forced to buy health insurance…

  10. How can not buying something qualify as interstate commerce? That’s a question that Cordray and Miller never really address.

    They probably thought it was too obvious to even mention, but given the current audience, I’ll explain it for them. You see, there’s this thing called the law of supply and demand, and when you don’t buy something, it drives the price down. So not buying health insurance does affect the interstate market for health insurance.

    1. That this sort of logic is commonly accepted will cause me to expatriate some day.

      1. I’m waiting to see which state secedes first, then take a long hard look at moving there. Some would say the smart money is on Texas, but the typical politics of a Houstonite and an Austinite are so radically different, that I doubt the entire state would do such a thing.

      2. There’s nowhere to run. Better to make a stand here.

    2. In which case the government would be justified in taking 100% of everybody’s income because spending it would have an effect on the economy.

    3. Isn’t the troll saying that more people buying health insurance will drive the price up? I don’t think that’s a very good argument in favor of this new law.

    4. This is literally the stupidest post I’ve read all week. This is what the Constitution looks like in its entirety through your retarded eyes:

      BEGIN DOCUMENT
      [The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
      END DOCUMENT

    5. The assumptions behind supply and demand are that people are WILLING participants in a transaction. That is why demand curves are downward slopping, because they are a function of the sum of the weighted utility curves of the individuals in the market to buy the good.

      If you do not wish to purchase a good, it is a fair assumption that the marginal utility to that person of the purchase is low and not worth the opportunity costs of spending the money elsewhere; i.e. the FORCED transaction is inefficient and reduces the overall general level of utility (or societal good).

      In conclusion, you are a fucktard troll who obviously knows nothing about economic theory (or reality), or constitutional theory and the thoughts of the drafters of the document (name me once single principle enunciated in the Federalist Papers).

      You are a thug, who would be happy to see the government order all of our lives at the price of our liberty.

      I wish dueling was legal, I would put you down the way a gentleman puts down a dog.

      1. My comment soon to be featured on MSNBC!

        1. “you are a fucktard troll” and gentleman go together like shit and a glass of 1787 Chateau d’Yquem.

          1. Well, you got me there.

            You win!

          2. Also, I didn’t claim to be a gentleman, I only said I would put you down the way a gentleman does a dog.

            But careful reading and logic isn’t really your thing, is it.

            1. So you freely admit that you are not a gentleman? Well, from now on, I will drop the wine and compared your remarks to shit:-)

              1. My lack of gentlemanly manners is freely admitted!

                But your good natured retorts make me think more kindly of you; we can share a glass of wine (and then duel it out – but I would rather it remain feces free, if it is all the same to you).

                1. faculty-staff.ou.edu/H/Kenneth.Hodges-1/combat.html

                  1. gentleman go together like shit and a glass of 1787 Chateau d’Yquem.

                    My morals were often questioned for being a scatophile, but my bona fides as a gentleman, never.

                    1. Orient Express and not the Cleveland steamer;-)

      2. I wish dueling was legal, I would put you down the way a gentleman puts down a dog.

        With his front bumper?

        1. comment of the year???

      3. Anyone who’s taken Econ 101 knows that the law of supply and demand works regardless of the motivations of buyers and sellers. It doesn’t matter whether the buyers buy because of government requirements, or fear of an asteroid attack, or because their kids saw it on TV and are bugging them constantly about it — the price goes up.

        1. Be quiet fetus.

        2. Be quiet fetus.

      4. Ungentlemanly point/question.

        That is why demand curves are downward slopping, because they are a function of the sum of the weighted utility curves of the individuals in the market to buy the good.

        The market demand is the horizontal sum of individual demand. The sum of utility curves would just be an aggregate utility wouldn’t it? The individual demand is derived by moving the price of one product while holding all else constant (utility curves have two products as x,y and demand has P,Q) and causing a shift in that product producing a new budget constraint line tanent to some new utility curve. You then have two points relative to max utility, price and quantity of a product from which to derive a demand curve (or many points since it’s all freaking theory at the individual level with regard to utility). So isn’t it more of an aggregate of max utility points from a shifted budget constraints at the point of tangency to the respective utility curves and not just the sum of utility curves themselves.

        Something like (graph form)

        X0,y0 maxes utility at constants (Px,Py,M)
        X1,y1 maxes utility at constants (Px1,Py,M)

        With the price of X moving to Px1 from Px and giving you the price shift, and quantity subsequent shift at the new budget constraint utility tangent.

        Or we could do differentiating with respect to X, Y and max utility using the Lagrangian method and the utility function similar to what I mentioned above: Max U(x,y)=lnx+lny, but I forgot most of that.

        The point was isn’t it the aggregate of the points of tangency (max utility per budget constraint) of the budget constraint and utility curve and not the aggregate of utility curves that you use to derive the individual demand curve?

        I don’t think forrest knows much about supply or demand curves or the things held constant or not held constant in each function.

        Just remember Forrest Slutsky puts out more than Hicks. (god the way I remember shit and how it sticks is scary.)

        1. Agree.

          The effect of forcing a POS price and quantity would be to, essentially, collapse both supply and demand curves to a single point – where aggregate supply equals the maximum amount that can be either consumed or produced, whichever is greater, and the price is the one set by the government.

          Either way, saying that setting price this way follows the laws of supply and demand is like saying that a murderer followed the law if he winds up in jail. The laws of supply and demand suggest efficient outcomes – government mandates (either on demand or supply) are almost never optimal.

    6. This would be the “full retard” species of troll.

      1. You’re suggesting the name was not just a fortunate coincidence?

    7. Insurers are prohibited from selling across state lines, so how is that interstate commerce?

    8. So essentially the interstate commerce clause is really the government can do anything it wants clause, because every human action effects a market in some capacity.

    9. Under that logic Congess has the right to mandate abortions and births. Because that affects supply and demand. It is a silly argument, has nothing to do with the original intent of the commerce clause, and has been used as an excuse to grow the government for far too long.

  11. By luck of the draw I am wealthy. i did nothing for it. Life’s funny that way.

    There is no medical procedure that I could ever need that I can’t pay for out of pocket, so I would like these bastards to explain to me how my not having health insurance impacts interstate commerce should I get sick.

    Health insurance? I simply do not need it.

    1. “By luck of the draw I am wealthy. i did nothing for it.” That’s called the lucky sperm-ova club

  12. yeah the argument that congress can force someone to buy something because of the commerce clause is hilarious. commerce is defined as: The exchange or buying and selling of commodities… therefore, not exchanging or buying something is NOT COMMERCE. I don’t buy health insurance and I refuse to, so I am not part of health care commerce, they have no right to regulate me and justify it under the commerce clause.

    1. Therefore, contraceptive use and abortion don’t count as reproductive decisions, since they represent decisions NOT to reproduce. Only a “full retard” would disagree with this, correct?

      1. what the hell are you talking about? what does that have to do with my point? you don’t make sense, contraceptives and abortion are choices to prevent successful reproduction. my point was that participating in trade is commerce, not participating in trade is not commerce. it doesn’t relate to the point, taking a contraceptive or getting an abortion is an action, not inaction, but thats not the point. its not the same thing, contraceptives and abortion are reproductive decisions but they aren’t reproduction. just as not buying something is an economic decision but its not commerce. what you are saying would mean that not having a pregnancy is reproduction, my argument is not being involved in trade is not commerce. deciding to not have X does not mean that decision is X.

        1. Not buying a product is a choice that prevents interstate commerce from occurring. Lay the “full retard” epithets on me as much as you like, you know that the SCOTUS will adopt my reasoning if these lawsuits even get that far.

          1. tulpa my comment at 10:45 wasn’t a response to your comment. here is my response to your comment: the commerce clause doesn’t give the government the right to restrict individuals from choosing to not participate in commerce, and what about individuals who don’t even have the means to participate in commerce? they are misusing and wrongly interpreting that clause. the constitution says congress has the right to regulate COMMERCE among NATIONS and STATES, an INDIVIDUAL’S choice to not participate in commerce is not commerce and does not interfere with commerce between nations or states.

            1. but I believe you may be right about how SCOTUS might decide the case if it comes before them. that doesn’t make them right though.

            2. also forcing someone to buy something against their will is a form of involuntary servitude, prohibited by the 13th amendment. the amendments limit how the commerce clause can be used: congress can’t exercise the commerce clause in ways that infringe on things that the amendments expressly prohibit. just as the 21st amendment trumps the 18th amendment, the amendments trump the commerce clause. they have the right to regulate commerce, but not in a way that exceeds the limited powers given to congress.

              1. that last part should read: but not in a way that exceeds the limitations that are placed on congress in other parts of the constitution.
                congress can’t regulate commerce if the way they are regulating it is not through a power given to congress. if SCOTUS agrees with you and says that an individual not participating in commerce prevents commerce, then by that logic, they could pass a law that says everyone must buy a slave, because not buying slaves is preventing more commerce from occurring, even though that would violate the 13th amendment.

        2. god damn it, I’m not having a good day so sorry my messages aren’t very clear. anyways my point was abortion/contraceptives are decisions not to reproduce, as not trading is a decision not participate in commerce. that argument does not mean non-commerce is commerce, or that preventing or terminating the reproductive process is reproduction.
          so you argument doesn’t make sense, you tried to twist my argument to make some kind of point but you failed. sorry, ha cha cha

          1. oh yeah and I didn’t call anyone a retard in any of the comments I made on this page.

  13. oh boy, we’re fucked….

    1. You really are. On the PBS News hour last night there was a Constitutional lawyer who was citing clear and relevant case law (specifically SCOTUS decisions) that clearly indicate it is unconstitutional. He wiped the floor up with the person taking the opposing view (who might very well have been Richard Cordray if memory serves me right. Here’s a link to last night’s program:

      http://video.pbs.org/video/1457801468/

      1. @ approximately 25:00 min in.

  14. Yup, Richard Cordray. They conversation starts at 29:30.

  15. I just love how everyone in the Federal government just acts like the 13th amendment doesn’t even exist. 99% of the stuff they do is unconstitutional under the 13th. Of course the Constitution itself causes problems by being self contradictory. You have the 16th which allows them to steal the products of our labor and then the 13th which should make stealing the products of our labor illegal.

    1. Newer amendments overrule earlier ones. That’s why alcohol prohibition could be repealed. If the 16th says it’s legal, it’s legal, until and unless a NEWER amendment says otherwise.

      1. Yes, but the 21st actually repealed the 18th. The 16th does not repeal the 13th. The 16th actually amends Article 1 Section 2 which deals with the apportionment of direct taxes. So both are still in full effect. Yet they contradict each other. The 16th allows involuntary servitude while the 13th makes it illegal.

        1. “”The 16th allows involuntary servitude while the 13th makes it illegal.””

          You decide if you want to work, not your master. You can decline any work offer at will.

          You could argure a host of reasons why taxing is wrong, especially income tax, but involuntary servitude isn’t one.

          1. servitude:
            Law. a right possessed by one person to use another’s property.

            If the government is using my property,i.e. my money, against my will then I am in a state of involuntary servitude.

        2. If two parts of the Constitution contradict each other, the newer part takes precedence. The 13th amendment didn’t explicitly repeal the 3/5 Clause, for instance, but it’s still considered null and void.

          1. Wait, copyright laws effectively restrict speech and press rights (patents, less so). The first amendment prevents Congress from passing laws which abridge freedom of speech or freedom of the press, and the first amendment comes after the original text…

            Obviously the first amendment must nullify the copyright law power granted in Article I, Section 8. Which means that all copyright laws are Constitutionally null and void.

            Suck it, SugarFree!

            1. Copyright laws don’t restrict content, they restrict a particular expression of content. You can express the same ideas and content as a copyrighted work does, you just have to present it in a different way. And if there’s no way to express the idea or content in another form (as was the case with the Zapruder JFK assassination film, for instance) then fair use applies.

              1. They also restrict derived works — banning a fan work set in an author-created world isn’t just restricting an exact duplicate of content, it’s restricting something unique in terms of expression.

          2. You’re right the 13th didn’t amend the that. The 3/5 clause was amended by the 14th amendment section 2. So I guess what you are saying is that if the 16th nullifies the 13th, slavery is now legal in this country and has been for some time?

    2. Let alone the Tenth, that pesky states-rights amendment…

      Oh, wait, states rights = a wistful desire to return to slavery. I forgot.

  16. Once again, this tells us nothing. Again: The Commerce Clause deals with Congressional power to regulate interstate commerce. So a mandate that applies within a state is entirely beside the point.

    Uh, I don’t think you understand the commerce clause. Under the CC, the feds can do whatever the fuck is politically expedient, except reduce their own control and power, which I guess goes without saying since reducing their own control and power is NEVER politically expedient.

  17. Even the draft is a terrible analogy because the raising of armies actually IS an explicit Constitutional function of the Federal Government alone. I would rather it be permanently amended to keep it gone forever but besides using the 13th Amendment to argue that the draft is slavery, there is no such explicit language.

    Being forced to buy a product by the Federal government, however, is completely unconstitutional and is absolutely a power that anyone from the farthest Right to the farthest Left should oppose vigorously.

    The reality for Democrats is that their argument is a lose-lose situation. If they lose the Court case, they get hurt politically and removing the mandate suddenly upsets the entire order of the HCR package – then we’d most certainly have people waiting until they get sick to purchase insurance and health care inflation will be boundless.

    If they win the case, they have granted powers to the Federal Government that can be used against them by the evil Republicans and their evil corporate lobby. What would stop the government from mandating that every man, woman and child purchasing X Corporation’s widget. The product is already purchased interstate, thus by the Left’s own definition there would be no constitutional argument against this.

    As someone who considers myself on the “Left” I find giving politicians power to force the public to purchase the products of their corporate campaign donors and buddies absolutely repulsive and unprogressive in any way, shape or form.

    1. One more point: not that I want to give the Democrats advice or anything, but were I a statist Keynesian in their shoes intent on salvaging the plan and wanted to solve this dilemma I would replace the mandate with reinstating the ability for insurance companies to discriminate against people who have not made a compelling effort to sustain coverage. Start with a “grace period” where companies can’t discriminate – say a 3 month period. Beyond that if someone voluntarily chooses to go without insurance for, say three months (long enough to qualify for benefits when in transition for most jobs), the ability to discriminate against pre-existing conditions could be reinstated. However, if one proves a good faith effort to sustain coverage but has had a pre-existing illness during a previous coverage period, the insurance companies could not discriminate against them. Thus if you choose not to purchase health insurance because you are trying to game the system, you lose and risk bankrupting your family. If you have to change coverage but have made the effort to maintain it, you can re-qualify.

      Don’t get me wrong, this is not necessarily what I believe is the solution, but it would sidestep the Constitutional issues, accomplish the same basic end and avoid giving the Federal Government a tool that could be used against their own party in the future.

  18. The question is whether the someone who does not purchase health insurance is engaging in a transaction that meets the legal definition of interstate commerce. How can not buying something qualify as interstate commerce?

    Does refusing to rent motel rooms to Negro occupants meet the legal definition of interstate commerce? How can not selling something qualify as interstate commerce?

    Lester Maddox, meet Peter Suderman.

    1. I think grounding the laws against discrimination in the provision of services in public accommodations was a mistake – and we are seeing the results of that mistake before out eyes in the monstrous government that was grown from it. It would have been far better (both as a logical and constitutional matter) to have justified Congressional legislation on the matter on the 13th Amendment (as dissenting opinions argued), but I guess Congress showed about as much understanding of the Constitution back then as they do now.

      All that said, I think that grounding the anti-discrimination laws in the provision of services to the public in the Commerce Clause is at least plausible, as the original intention of the Commerce Clause was to stop states from impeding interstate commerce (as happened under the articles of confederation), that is to INCREASE the flow of goods and services – discrimination against one raise would obviously hamper the flow of goods and services between states (think about it, restaurant owner in Georgia stops a black man from sitting at the counter but then finds out he’s from New York, “oh that’s ok, sit right down”).

  19. The draft actually doesn’t work as an analogy.

    By law, both at the time of the Founding and current, the militia consists of pretty much everyone that was ever eligible to be drafted. And Article I Section 8 is pretty clear Congress can “provide for calling forth the Militia”. If they want to call forth the militia by ordering randomly-selected individual members into service, well, there’s nothing obviously unconstitutional about that (setting aside questions of the 13th Amendment, which probably wasn’t intended to stop a draft even if it could be interpreted that way).

    In short, there’s a directly on-point power of Congress in the draft; there isn’t in the case of the health care mandate.

    1. Almost. The feds didn’t draft you. The states did. Congress is authorized to call forth the states’ militias.

      I think there is a chasm of differnce between being force to buy a service and being subject to the horrors of war.

      I think Medicare is a closer example. You must contribute to the feds. You may or may not receive the benefit. Government will subsidize your managed care plan from a companies like Blue Cross Blue Shield. Like they do with Medicare now.

      I think a SCOTUS challange to Obamacare will turn out like Heller. They will rule in a way that doesn’t make Medicare unconstitutional. So my guess is they will uphold Obamacare.

      1. so are you saying people in DC can’t be drafted, since they aren’t a state? they have a militia but they are under the control of congress.

        1. also, many, if not all, of the states that were one of the “free states” during slavery had passed laws prohibiting slavery in the decades prior to the civil war. so in that case, some or all of those state anti-slavery laws would apply to the military draft. in fact I’m pretty sure most or all states have anti-slavery statutes, I vaguely remember hearing that one state finally banned slavery sometime in the 90s. if so, the states, nor the feds, have the right to enslave a person. also wouldn’t this fall under the Privileges or Immunities clause, as well as other clauses, in the 14th amendment?

  20. When an uninsured person ends up in an emergency room needing urgent and expensive treatment, someone has to pay for it?through either higher premiums or higher taxes?and “we” are that someone.

    This is not accurate, as the individual could pay out of pocket. Moreover, there’s nothing illegal or immoral in principle about doctors cost shifting from poor patients to wealthier ones.

    It’s ridiculous to complain about having to pay for other people’s health care indirectly through market prices, only to use that as an excuse to order other people to buy insurance, and then subsidize it indirectly through the government.

    1. This is not accurate, as the individual could pay out of pocket.

      And if they don’t have the money to pay, you have to either perform the service for free, or leave them to die on the sidewalk.

      Shifting costs to wealthy people (ie people with insurance) is going to result in raised premia.

      1. And if they don’t have the money to pay, you have to either perform the service for free, or leave them to die on the sidewalk.

        Well, federal law prevents them from being left on the street, but just think about the effects of this diktat: Now that hospitals don’t have a choice as to whether to treat these people, costs are rising and have to be shifted onto paying customers. This constitutes a “crisis” that can only be resolved by piling more unwise regulation onto the other unwise regulations as the federales attempt to paper over the fiasco they themselves created.

      2. Shifting costs to wealthy people (ie people with insurance) is going to result in raised premia.

        So what?
        You want to raise taxes to pay for insurance for these people, so what’s the difference?

        Option A) Premiums get slightly higher for people who can afford to buy insurance, to pay the cost of treating poor people who can’t pay, at the doctors discretion.

        Option B) Force EVERYONE to buy insurance, implement a complex series of regulations on minimum insurance, and tax to subsidize insurance costs for the lower 75% of the population.

        1. Seriously, arguing with you guys is like nailing Jello to a wall. I was responding to your statement that it was not accurate that uninsured people’s treatment is paid for through higher premia or higher taxes. I proved that statement false, and now you respond with a pout about how our health plan results in higher taxes. No shit.

          1. It isn’t *necessarily* paid for through higher premium or taxes. Since it is at least theoretically possible for someone to pay out of pocket for medical care.

            You could pass a law saying doctors can’t charge poor people less, and then sent collection agencies after them to make sure they pay for their care.

      3. the insured don’t have a right to control cost, that should be determined by the market, but since its a scam with special government sanctioned benefits the prices aren’t determined by the market anyways.
        anyways, this plan is not going to lower premiums, look at MA, they passed insurance mandates and now have the highest premiums in the country and the cost rose almost 35% above what was projected. these types of mandates have never resulted in lower premiums. these deluded statists believe it could work “if only the right people were running it.” you can’t control the market, it will never work the way you plan no matter who is running it.

  21. Forrest may be trolling…..

    Except isn’t that exactly the precedent set by WickardVFilburn?

    Man grows his own wheat, does not buy wheat, hence interstate commerce.

    1. NTTATRWT (Not that there’s anything right with that.)

    2. It is the precedent, and SCOTUS will certainly not rule in these lawsuits’ favor. And even if it did, all that would do would be to initiate a health insurance death spiral as private insurers got out of the market faster than you can say preexisting condition. The result: single-payer.

      Unless we repeal this thing, it’s a we lose, they win; we win, they win deal.

  22. And let’s dispense with the sophistry of this being like mandatory car insurance. I’m required to purchase third-party liability insurance, not comprehensive collision. That indemnifies others, not me, in case I plow into them. I’s still on the hook to get my car repaired.

    And not even Wickard, as vile as a decision as that was, went so far as to require people to buy fucking wheat if they didn’t want to.

    1. Yes, it did. Wickard was required to buy wheat or let his pigs starve. Under this bill, you must buy insurance or pay a fine/fee/tax/contribution/whatever.

    2. Wickard was forced to buy wheat or let his pigs die.

    3. I have asked liberals who use the car-insurance angle “should blind people be forced to buy car insurance?”… and never get a straight answer.

      For that matter, would blind people be forced to pay for eye care?

      1. Following the logic of the HCR mindset, yes.

        Their own and other people’s eye care.

  23. Wonder how the Amish community will take to this forced-insurance purchase edict…

    1. I saw Witness. There were at least a couple things in that movie that I wouldn’t mind doing.

      1. Seeing that movie at 6 years old caused me to crank my chin all the way down to my neck whenever I’m standing at a urinal in a public restroom.

    2. the Amish won’t take it… they had a special provision included, like with medicare and social security. which is a 1st amendment violation, they favor the Anabaptist church and refuse to grant that same privilege to people who are from other religions or are atheists.

  24. Seriously, fuck the Constitution Cargo Cult. The thing exists for a reason, the powers and limitations and provisions within it exist for a reason.

    A number of people in this country have ideas for what they view as positive change. The fact that their plan is forbidden by a document written over 200 years ago by a group of wealthy, slave-owning gentleman farmers is as meaningful to them as the fact that the Bible forbids blowjobs.

    Unless we can explain why the architects of the Constitution would have prohibited them from pursuing their well-intentioned but asinine dreams, they won’t care. Unless we can explain to them how the powers they want to vest in government will be abused to the detriment of all of society (including the people they want to help) there’s no hope of changing the course of this nation.

    The Constitution was always Dumbo’s feather. If we don’t live in the sort of society that could create a Constitution of its own, the Constitution is a nearly dead letter kept alive by unthinking fundamentalism. And if we do live in a society that possess that sort of wisdom, we hardly need the Constitution in the first place.

    1. I generally agree, but the founding fathers were more familiar with the dangers of unfettered government power. There’s a reason they put all those limitations in there, and it wasn’t because they were wealthy slave-holding gentleman farmers. Actually that fact would have led them to form a government that gave them more power not less. Just as Washington could have become a dictator, the writers of the constitution could easily have become the Politburo or the eqivalent thereof.

      I don’t think today’s society could write a functioning constitution, honestly. We take our freedoms for granted, and treat them like dirt. The recent reaction to the Supreme Court ruling on corporate speech should serve as a case in point. People are more interested in the political dominance of their own identity group than in adhering to a uniform set of just standards for everyone.

  25. I submit that if today’s society tried to craft a constitutional document it would be so convoluted, bogged down with minutiae, and self contradictory that that the attempt to carve out exceptions for every interested party that it would be functionally impossible to execute.

    This group wants this special protection, that groups special interest conflict, and another special interest group adverse to both, ad infinitum. Attempting to craft a document to satisfy what each group considers “fair and just” is a work of futility.

    “Just standards” nowadays is defined by one’s perception, not by any uniform standard.

    1. We know specifically what this would look like already, its called the draft “European Union constitution” – and it is a disaster.

    2. God, were we fucking lucky to have a constitution that was pretty simple and just. The only special-interest carve-out was arguably the southern states demand to count their slaves as part of the population. We did get rid of that though.

      1. Yet following such prescription as “Congress shall make no law…” is blatantly disregarded to the point where you have representatives saying, “The Constitution? I’m not worried about that.”

        One of the pre-requisites for serving in public office should be a battery of simple tests where very simple, explicit instructions are given and grading the prospective candidate on the ability to follow directions to the letter. No improvising or trying to prove how creative the candidate thinks he or she is by “interpreting” the directions.

        As one of my HS band instructors was fond of saying, “See that sheet music? Do what it says!”.

  26. Car insurance should not be mandatory. It’s a privilege to fly too, so does that make full body scanners just the cost of choosing to fly?

    If I get in an accident I’ll pay for the consequences. Even if it means garnished wages to pay off a debt. Why am I forced to pay into a system when I had no accidents for the 7 years since I have been driving?

    The whole driving is a privilege thing is BS! I’d like to see everyone make a living without driving a car. I can see walking if a job is only 2 miles away. But there are people I know who drive 40+ miles to work at a job that makes $12/hour… in NJ. To tack on as much as $2000/year for new drivers. It’s insane.

    1. Wow, you’re a real stand-up guy. But the person you injure and/or cause property damage to is going to have to wait for you to make enough money for garnishment to pay for their auto repairs and medical bills.

    2. In addition, I don’t think you’ve thought through the consequences of driving being considered a right. That would mean that the state would have no authority to prevent someone who didn’t know the rules of the road or which pedal was which from driving.

      When you have a system whose users can easily, accidentally, cause hundreds of thousands of dollars in damages and kill people, you need better safeguards than having people pay for what they screw up. Most people don’t have that kind of money laying around, and forcing victims to wait decades for their medical needs to be taken care of is bullshit.

      1. Well, you could wait until after they’ve proven themselves unworthy to yank the license.

        I’d also like it if the cops had less authority to pull people over. Another bad thing about drug laws.

    3. Car insurance is not a Federal Mandate, it is generally mandated by state government. The Constitution of individual state governments allow or don’t give that government the power to require people to buy insurance. However, with regard to the Constitution of the United States of America, it does not give the Federal government that right – the powers of the Federal government are limited and enumerated, all other powers are reserved for the governments of the several states.

  27. Nobody with the power to stop it cares. At all. By and large, there isn’t a thing they would like to do, that they won’t do on the basis of any sense of constitutionality.

  28. I am old enough to remember President Lyndon Johnson’s “Great Society” in the 1960s. Medicare, health insurance for the elderly, was created as part of the Social Security Act Amendment in 1965 and was put into effect in 1966. The critics howled that the Medicare (and Medicaid) would bankrupt the country.

    But [President Bill] Clinton presided over the longest period of peace-time economic expansion in American history, which included a balanced budget and a federal surplus. The Congressional Budget Office reported a surplus of $236B in 2000, the last full year of Clinton’s presidency — [Medicare and Medicaid notwithstanding.] http://en.wikipedia.org/wiki/Bill_Clinton

    So “bankruptcy” is NOT inevitable (unless you turn the country over to Wall Street !!) Prudent governance can put us back on firm financial ground.

    President Johnson said: “”Ensuring all Americans have guaranteed affordable health care is the missing piece of the modern American social contract.” Thank you, President Obama, for taking the first step towards making that dream a reality.

    1. See those same numbers that you quote once they have been adjusted to include the social security moneys that the Congress appropriated and I believe every single one of those years was actually in deficit.

      1. Correct. If you count money borrowed from the social security “trust fund”, they were all deficit years.

        Incidentally, one reason deficits are rising is because the “trust fund” no longer takes in more money than it pays out, so we can’t count it against the deficit anymore, like Clinton did.

        1. I wonder how many private companies could file financial statements using cash basis accounting and not have their management thrown in the pokey?

    2. Just in case you need a citation: the author obviously has a point of view but a few minutes of web browsing will find confirmation of both his numbers and underlying thesis.

      http://www.craigsteiner.us/articles/16

    3. The critics howled that the Medicare (and Medicaid) would bankrupt the country.

      And they were right. Too bad you lack suficient foresight to see past your sagging breasts.

      I’m sure you have a spare $38,ooo,ooo,ooo laying around, right?

      1. Correction …

        $38,000,000,000,000

        1. Ah yes, thanks Hazel.

          Hoisted, etc.

  29. You know who else opposed the expansion of federal power? Racist.

    1. +1 LOL.

  30. Why do these bozoids continue to argue as if imposing extra income taxes on some one without insurance has to come under the commerce clause? It doesn’t. The 16th Amendment authorizes the “individual mandate” such as it is (viz., extra income tax). The commerce clause is irrelevant. Learn to cope.

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