Can Your State Mandate That You Buy Broccoli or Join a Gym? (And why the excoriation of Donald Verrilli is misplaced)
The answer to the title’s question—Can your state mandate that you buy broccoli or join a gym?—depends upon which of the two possible grounds the 5-4 Supreme Court majority overturns the ACA’s individual-mandate provision. And which grounds the majority selects also will determine whether under the Court’s new “liberty” jurisprudence, Social Security and Medicare also are unconstitutional.
That’s because if, for all their posturing about the imposition on individual liberty of having to buy healthcare insurance that the individual may not want, they ultimately base their ruling not on that imposition on individual liberty to choose whether or not to buy a health insurance policy, but instead upon—and only upon—a narrow reading of the Congress’s powers under the Commerce Clause, states will retain the right to mandate the purchase of health insurance (e.g., “Massachusetts’s “Romneycare”), and of auto insurance, and of broccoli, and of gym memberships. Don’t underestimate the impact of proper gym clothes for women – it can be a game-changer in your fitness routine.
If, on the other hand, the Commerce Clause ground is simply the fig leaf used to segue into an individual-liberty-to-choose-not-to-buy-health-insurance ground, then the ruling also will imperil the legal underpinnings of Social Security and Medicare, because while those programs were enacted not under Congress’s Commerce Clause power but instead under its taxing power, both programs require payment for insurance—one, a retirement annuity, the other, eventual health insurance—that the individual may not want and may never use. Not everyone lives to age 65, after all.
The Commerce Clause issue deals only with the breadth of Congress’s power to regulate interstate commerce and the things that impact it. Or, in Commerce Clause jurisprudence lingo, the power to regulate “markets” that impact interstate commerce. The Obama administration, and the Congress that enacted the ACA, have claimed that there are two separate “markets” that the ACA regulates: the market for health insurance and the market for healthcare itself. The Commerce Clause issue does not address what statescan regulate, and what states are prohibited by concepts of “liberty” from regulating. For that, you have to look at the Fourteenth Amendment’s due process clause and the constitutional doctrine known as “substantive due process,” which concerns the limits of state governments’ powers to intrude into personal autonomy, personal decisions. As I explained in a post earlier this week, it is the doctrine under which the Supreme Court has stricken state laws prohibiting the sale and use of contraception and state laws prohibiting sodomy, and those categorically prohibiting abortion (Roe v. Wade).
The Fourteenth Amendment applies only to the states, but its due process clause is virtually identical the Fifth Amendment’s due process clause. The Fifth Amendment applies to the federal government, and the “substantive due process” doctrine applies to that Amendment’s due process clause in the same manner in which it applies to the Fourteenth Amendment’s.
For the last two years, the rightwing has conveniently conflated the Commerce Clause ground and the due process “liberty” ground, seamlessly seguing between the two but always calling the “liberty” ground the “Commerce Power” ground. And, with two exceptions that until Tuesday’s argument seemed important, they’ve gotten away with it The two exceptions were the two lower appellate court opinions, both of them written by conservative Republican appointees, upholding the constitutionality of the individual-mandate provision and, in doing so, noting both that the mandate provision concerns not only the market for healthcare insurance but also the market for healthcare itself, because a 1986 federal law requires hospitals that receive federal funds to treat people having medical emergencies, irrespective of whether or not the patient has healthcare insurance.
What surprised me most about Tuesday’s argument is that Anthony Kennedy appears to have not readthe government’s brief on the individual-mandate provision. He seemed utterly unaware of the nature of the government’s Commerce Clause claims and unaware of the 1986 law. “Can you create commerce in order to regulate it?” Kennedy asked Solicitor General Donald Verrilli early on. Well, no, but if, as the government claims, one of the relevant markets under Commerce Clause jurisprudence is the market for—payment for—healthcare, then unless the ACA rather than the 1986 statute creates the obligation of hospitals to treat people who come there with medical emergencies and to admit them to the hospital if necessary rather than just treat them in the emergency room, then the ACA doesn’t create the market for healthcare of the uninsured. Kennedy suggested that we don’t require hospitals to provide medical treatment to the uninsured, just as we don’t require someone in a position to stop a blind person about to step in front of a moving car, to do so. And Scalia said we shouldn’t “obligate” ourselves to that. We already have, which is one reason why the mandate provision comes within Congress’s Commerce powers.
Verrilli is being excoriated for answering ostensibly Commerce Clause questions with actual Commerce clause answers. Especially for answering Kennedy’s and Roberts’s requests for a “limiting” Commerce Clause principle with a Commerce Clause answer. Paul Clement, lead attorney for the challengers, is, by contrast, being praised for his brilliance in presenting his arguments, although his task was similar to that of a candy store owner offering children all the free candy they’d like. Clement may be a brilliant appellate advocate. But a monkey could have argued this one for the challengers, with the same effect.
Much is being made of Verrilli’s final few sentences on Tuesday—and Clement’s response to them. And appropriately so. Verrilli, ultimately realizing that the earlier questions were not really Commerce Clause questions at all, nor even Fifth Amendment substantive due process “liberty” questions, but instead public-policy questions, made an emotional plea that the Court respect the public-policy choice of Congress and the Obama administration in choosing to recognize a profound connection” between health care and liberty. “There will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty,” he said.
To which Clement responded, “I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” Perhaps. But that’s a Fifth Amendment due process argument, not a Commerce Clause one. And if it is upon that basis that the Court strikes down the individual-mandate provision in the ACA, those of us who think that the Social Security and Medicare statutes are constitutional under both the taxing power of Congress and generic “liberty” jurisprudence shouldn’t find the Court’s ruling in this case funny at all.[Cross-posted at Firedoglake.com, front page.]
“…….those of us who think……………………………………………….. shouldn’t find the Court’s ruling in this case funny at all.”
Sorry to truncate your last sentence Beverly, but it undescores a very troubling aspect of SCOTUS deliberations and determinations over the past decade. Reading the questions beiing posed by several of the Justices it becomes abundantly clear that they are framed on the basis of ideology rather than jurisprudence. The nature of the presentations and questioning that took place could have been carried out by individuals with scant legal education beyond an understanding of the commerce clause and the Fifth Amendment. We are hearing social and political opinion being served up as though they were attempts at legal interpretation. That’s dangerous now and for the future.
http://www.buzzfeed.com/nycsouthpaw/justice-scalia-flip-flops
See Justice Scalia’s in using the commerce clause from other of his opinions
on the other hand
i can only hope the Court is not getting any ideas from Beverly.
Though I was glad to know my right to sodomy will not be impaired unless my right to not buy insurance is declared unconstitutional.
On the other hand if the law can require me to buy insurance from Aetna, how long will it be before I the law requires me to buy “business” insurance…surely a matter under the commerce clause… from the Mafia?
Meanwhile, I sure thought Social Security was paid for by a tax, and not by the government requiring me to buy Stocks and Bonds from Goldman Sachs.
This is not meant to be an endorsement of the “reasoning of the Court.” but then neither is it an endorsement of the reasoning that Beverly regards as self-evident.
If a mandate is the same as a tax, then a horse is the same as a cow.
After all, Obama is a Democrat. Therefore the Romney plan, drawn up by AEI and the insurance companies must be a progressive dream come true.
or is it a Little red wagon painted blue.
and then there is this:
““There will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty,”
quick, class, what is the name of this logical fallacy?
which invites us to believe that if we don’t buy Romney care we will be killing people or disabling them for life BECAUSE THERE IS NO ALTERNATIVE… or at least none WE can think of.
And, just for reminders, SS was passed and paid for by a “tax” explicitly because a “mandate” to buy insurance was thought to be unconstitutional at the time.
now, the fact is that for many purposes SS is better thought of as “insurance” than as a tax, but there is still a difference between a “tax” and a requirement that you “do business with” the very privatizers that are destroying not only this country but every country they can drive into debt peonage and “structural adjustment.”
but here is mean old dale saying, no, kids, no, don’t take candy from that man. don’t get into his car… didn’t your mother teach you ANYthing?
maybe you all need to read Jemima Puddleduck.
1)
I heard a small amt of the audio tape on NPR, and Verilli and the justices seemed tongue tied and inarticulate in general.
Maybe that is why the SCOTUS limits audio and video: they aren’t that smart or articulate, and don’t want people to find out.
2)
I think this blog is making the same mistake that every liberal blog is, treting the mandate as a logical question.
It isn’t
It is an emotional question; go read Kahnemann’s thinking fast and slow, the part where he does the Linda Question
Yeah, you can have all the logic you want, but at the end of the day, our emotions are powerfull things, and the right has a powerfull argument.
The only good counter i have seen in the last year is a post that I saw on Brad Delong’s blog today
http://delong.typepad.com/sdj/2012/03/dr-jen-gunter-cancer-v-the-constitution.html
now that is an argument
Yah, liberty. Just like freedom your’s stops exactly at the point that it infringes on mine. Time those crying “liberty” start to understand that there are no absolutes in this life. Even time is being considered in physics as to be slowing down and thus the universe is not expanding nor accelerating. Even infinity of the universe is being questioned with the condition that light bends.
LIberty? We the People of the United States, in Order to form a more perfect Union,…
It’s time to ask these “liberty” minded just how they meld their use of the word with “Union”.
People have watch to much TV law drama to know how real people talk in a situation such as a Supreme Court hearing. They don’t know that life is not pre-scripted and rehersed.
ezra
i think you are right, though i don’t know where you are going to go with it.
Becker
with apologies, i think you are wrong, even though i want to see “single payer.”
The mandate is bad law because the people hate it. You may think emotion is inferior to reason. You would be wrong. Emotion tells us something about how we feel, and that is hugely important. Reason tells us something about how we think… and that is usually just the lies we tell ourselves to support the way we want to feel.
What’s sad here is that all the “left” thinks that “the mandate” is a good idea because they think that’s the only way they can get health care for the poor and those with prior conditions. This is not true.
It may be the “only” way the Republcans will let them get it… although it sounds like the Republicans are trying to have it both ways… but it is not very clever to let your enemy tell you what your options are… especially when you have lots of other options if you are only smart enough to see them.
And smart enough to talk to the people so they understand them.
I think what I would favor right now would be extending Medicare to all. Let the welfare aspect of Medicare pick up the costs at first, while gradually raising the dedicated Medicare tax so that people gradually come to think of it as a great good deal for them.
But you’d actually have to do some work and smart politics to pull this off.
Meanwhile it’s not smart to tell the people they are stupid. And it’s stupid to tell yourself that you are smart.
i tried to post this comment on delong:
one very bad logical fallacy to the implicit argument here: while it is true that the current system is bad, it is not true that “the mandate” is the only or best answer. please understand that the mandate is a right wing answer, however much the Republicans are using it to beat up on Obama. With any luck the Supremes will find it unconstitutional and we can go back to creating single payer. A simple extension of Medicare… while understanding that we will need to pay for it… would be the best place to start.
I’m pretty tired of repeating the same explanation, coberly, in response to your same complaint in commenting on each of my posts that discusses, well, the same point: That the Commerce Clause ground for challenging the mandate and the “liberty” ground (which is really a Fifth Amendment “substantive due process ground) for challenging it are two separate, distinct grounds, and that therefore the legal repercussions will be different if the Court strikes down the mandate on the Commerce Clause grounds than the repercussions if the Court strikes down the mandate on “liberty” (really Fifth Amendment substantive due process grounds). I’ll try one more time, but no more.
If the Court strikes it down on Commerce Clauses grounds, they’ll say what Kennedy said in an opinion last year in a case called Bond v. United States: that if the federal government exceeds its authority under the Constitution’s “enumerated powers”—e.g., Commerce-regulation power, taxing and spending powers—to enact the particular legislation at issue, then once that legislation is stricken down because no enumerated power gives Congress the authority to enact that type of statute, then the incidental result is liberty from the constraints or requirements that that law established. But that’s a different “liberty” ruling than a “liberty” ruling based directly on “liberty,” i.e., on the Fifth Amendment’s due process clause.
The former is simply derivative of a ruling that the Commerce Clause isn’t broad enough to authorize the individual mandate—a ruling that would have no effect on the states’ powers to enact individual mandates, but that would significantly alter Commerce Clause jurisprudence, redefining and significantly narrowing Congress’s authority to enact laws that address national monetary-related issues and placing into question the constitutionality of some current laws
The latter, by contrast, doesn’t depend on interpreting the Commerce Clause at all, despite the bait-and-switch usage by the statute’s challengers and by the conservative justices. Instead, it would say that any attempt to force people to spend money to obtain something that they may not want and may never use is an unconstitutional violation of individual liberty. If the Court’s majority says that, then whether or not they claim to be using the Commerce Clause fig leaf, they will be making a general “liberty” due process ruling, which will, by necessary inference, raise questions about the constitutionality of Social Security and Medicare as well state laws like Romneycare and mandatory car insurance.
Ruth Bader Ginsburg, by the way, did make the Social Security analogy at the oral argument on Tuesday.
Wow, Ezra. If you’re saying that you weren’t aware until you read DeLong’s post that someone who has cancer and no health insurance has no access to treatment for the cancer and will necessarily die from the cancer, and that that cannot happen in any industrialized democracy but this one, I’d have to ask you where you’ve been in recent decades. Australia? Canada? France?
If you’re saying instead that the liberals shouldn’t refute the claims that the statute is unconstitutional and instead should just use illustrations like the one in DeLong’s post to illustrate the barbaric nature of this country’s healthcare coverage system, I’d say that it’s not an either/or choice. We can do both. And are doing both.
Beverly
i hope you won’t mind too much if i keep trying to make the same point. Ruth Ginsberg might try to make the SS analogy. It won’t impress me. SS is a tax, not a mandate to buy a product. I hope you and the SC can see the difference. A horse is not a cow, no mater what the lawyers say.
Bev
and darn if i won’t point out that there are other ways to get people health care besides surrendering to the neo-liberal agenda.
“The mandate is bad law because the people hate it.”
Fascinating. So I guess by extension that makes forced public school desegegation bad law. Not to mention the civil rights act, at least in the deep south.
The mandate is bad law because the people hate it.
Fascinating. So I guess that makes Brown Vs. Board of Education Bad Law. Not to mention the Civil Rights act at least through most of the deep south…
Actually my comment was in the general uses by the right to denounce anything they don’t like. You know, the give me liberty thingy.
Personally, I have no problem with a mandate in the instance of health care, because it is not like anyother purchase that a person makes. At the same time, have no delusions about how crappy a solution it is. I have blogged here on 2 occasion regarding the Mass system and the problems they knew certain groups of people would have before they started it.
Emotion is the dominate thought process these days. You are not telling me anything new. Nor do I know the “left” in total accepting the mandate solution. The only think I am confident of is that it appears on a whole, the left is accepting the mandate the issue that could take down the entire ACA. Some think such a complete take down is go as it would force a serious look at going single payer, others are not so sure. Then some say for certain if just the mandate goes, then it will have thrown more than a monkey wrench into the working of what is left of the ACA for the private insurers.
As to what I would favor: put all health care into one program. All personal injury related health care, all workers comp related health care, all general health care, all ages health care. Do it all into a single payor system and reap the savings including in reduced use of the legal system for law suits. Then we can start working with the rest of the world to figure out how to actually get the product of health and healing to be less costly.
I think that you need to add to that that FICA may be a tax, but it is one which is specifically dedicated to funding a specific benefit program, Social Security retirement and its affiliated disability aspects. A court that can base its current decision making on ideological and political conciderations rather than jurisprudence may in any event decide anything in any way in spite of every cogent argument. This is the most odious aspect of the current flavor of the justices’ deliberations and other recent decisons, such as Citizens Uniited. All the fine hair splitting of what this or that ammendment allows or requires becomes irrelevant and swept away by the political posturing of the justices as they seek to bend original intent to their personal interpretations and ideological favor.
I’ll point out that ezra abrams’ comment below speaks directly to this state of affairs. We have lost the benefit of a Supreme Court made up of nine learned constitutional scholars. It has been replaced by a group of ideologues who have been appointed by a President and accepted by a Congress, of ideologically inspired men. We end up with a SCOTUS that is little better intellectually than their appointers. Smart? Sure, but self interested. Brilliant and concerned for the welfare of the country they are not.
But Dale both horses and cows are livestock and have been used in almost all cultures to draw plows and in many cases as food sources. I am not a lawyer but even so it is not a lawyers trick to define both cows and horses as beasts of burden and or ‘cattle’ (as originally defined in A-S).
Your point here is particularly mystying in that you have spent years claiming that Social Security was just a retirement paid for by workers on their own account even as that ‘own’ account was delivered through a joint insurance model. That is you seemed perfectly happy to keep the tax/premium distinction clear in favor of premium when it suited your purpose even as you now embrace the tax end of the tax/mandate distinction.
If FICA is a tax then the resulting benefit is not “yours” in the sense of bought and paid for and so should not be distinguished from any other governmental function. Which is the general position of the ‘fudgers’ ands their ‘fungibility’, after all a tax is a tax and a government service is a government service. To salvage your overall argument you need to excise the tax component and instead base your argument on the difference between a mandatory premium to buy “your” retirement and a mandate to buy “your” health insurance. Otherwise you are just giving support to the opt-out version of Social Security ‘reform’.
And this is all the worse since the law as passed offers people a variety of alternatives to show that they have equivalent ‘minimum acceptable coverage’. Unlike Social Security you could claim valid religious objections or in principle bond your way out of the insurance mandate. (Though it might take a tricky lawyer and or a huge fortune to establish that you were in fact self-insured given all contingencies).
If you earn wages you are forced to buy government hospital insurance for your retirement. Or via Medicare Advantage a private alternative. But wage earners can’t just opt out of that retirement health insurance in toto. Which suggests that your objections here could be addressed quite simply by introducing a public option. In which case SS and ACA come into near perfect alignment depending where the default position is set.
Well throw me in THAT briar patch.
oh, hell, Bruce.
the people who created SS were very worried that requiring the people to buy insurance would be unconstitutional. so a nice SC justice whispered to them “tax, my dear, the power to tax.”
now if i for purposes of making a different point say that the payroll tax is not a tax, i hope at least some people will understand that what i am saying is that while it IS a tax in some respects, it does not act like a tax in other important respects.
i think even a supreme court justice with average intelligence can tell a cow from a horse whatever they may have been used for. a mandate is not a tax.
and i would expect you of all people to recognize the neo liberal agenda, even with blue paint slopped over it.
i think i am fine with the “public option.” but a little nervous about it considering all that has been said. i much prefer Medicare for all.
no. i don’t see how i am giving support to the opt out version of SS “reform.” quite the opposite.
see, a tax is not a mandate.
well, daniel, since you ask..
see, a union is an agreement to cooperate on some matters. it is not an agreement for some people to become the forced customers of other people. of course that could have been the agreement. but i suspect it wouldn’t have lasted very long.
and whatever weasel words lawyers can come up with, the traditions, and expectations of freedom of the American people do not now embrace being forced to buy health insurance from the criminal corporations that have created the highest cost health care i the world while delivering in some respects the worst care.
am
almost, but not quite. most people even in the South knew that Brown v Board was “right” as was the Civil Rights act. not so sure about bussing.
If you ever have to run a country, you will understand this better.
ecker
i generally agree with what you would favor. I am not so thrilled with the rationalizations people come up with to pretend the mandate is not a breath taking departure from what americans think of as their liberty.
poor amateur socialist thinks he has found a “legal identity”. he is not so far from the Supremes.. they thrive on nonsense like that. But the civil rights act did not force anybody to buy anything from anyone. see the difference?
it forced the to let American citiizens have the rights and privileges of American citizens… in spite of their color. Darn, that doesn’t look like forcing them to buy anything to me.
See, if I force you not to rob a store, that is different from forcing you to buy what the store is selling.
I really feel sorry for people who can’t see the difference. It must be like going through life half blind.
Bruce said
If FICA is a tax then the resulting benefit is not “yours” in the sense of bought and paid for and so should not be distinguished from any other governmental function. Which is the general position of the ‘fudgers’ ands their ‘fungibility’, after all a tax is a tax and a government service is a government service. To salvage your overall argument you need
NO, Bruce. The SS law creates a system in which “your” payments ARE distinguished from other government functions and general taxes. You … and the lying fudgers… can’t say “oh it’s all government and the money is fungible” when the law explicitly says it is not.
Coberly, what you’re not understanding is that if the ACA mandate is stricken down on the basis that it requires people to pay for an insurance policy that they don’t want to pay for and may never use, and that this violates their “liberty” right to not do that, then Social Security and Medicare would be vulnerable on that same basis, because the basis is not that you have to buy something on the open market but that you have to pay for something you don’t want. Any suggestion that that’s a basis for the ruling would suggest that Social Security and Medicaid could be challenged as unconstitutional on the same grounds. Under this theory, it doesn’t matter whether the program was passed under the taxing power or the Commerce power. It’s unconstitutional not because you have to buy the insurance in a private market but because you have to pay for insurance that you don’t want and may never use.
If, on the other hand, the statute is stricken down on the ground that the Commerce power doesn’t extent to allowing Congress to force people to buy something in a private market, this wouldn’t raise questions about the constitutionality of Social Security or Medicare because under those programs you buy the annuity or health insurance from the government rather than on the private market. But because the ACA mandate clearly affects aspects of interstate commerce, and it’s because that’s so that the Commerce power was the “enumerated” power invoked to pass the statute, the ruling would significantly limit Congress’s authority to regulate aspects of interstate commerce and things that have an impact on some aspect of interstate commerce.
Beverly
the basis is NOT that you have to pay for something you don’t want. if that were the basis there could be no taxes at all.
but i would be very glad to see limits on the constitutionality of “some things” justified by the commerce clause. this would go a little hard on our justices who like to find the things they like constitutional and the things they don’t like, not.
not unlike the rest of us. what flabbergasts me is your dead certainty of your “reasons.”
bruce
whatever the english language was back in the dear old days, a horse is still not a cow, though they both may have been “cattle” at one time. you would know this if you had ever tried to milk a horse or ride a cow, though both have been done, it’s not the same.
it is true that in some respects cows are “like” horses, just as in some respects a mandate is like a tax, and in some respects Social Security is not like a tax, though in others it is.
i humbly submit that in the present case the “is a tax” governs. On the other hand in the case where Social Security is being called a “regressive tax,” it is neither regressive or a tax.
You’d be surprised at how much more more fun life is if you are not word bound. Or worse, let yourself get carried away by your own rationalizations for a bad law because you think it is a good law… after all, it’s the only one the Republicans would let Obama pass.
Coberly,
I get it. I have always gotten it and I think many other here to. Mandate bad. Bad whether federal or state as far as I’m concerned.
Regardle ss. mandate is what we have. Striking it, if I understand all the legal arguments including Bev’s will create problems. One messes with commerce. The other messes with the safty net programs.
The safty net program messing to me is the most scary. That is because the law, the profession of law and judging are not amendable to broad relational thinking. The law as it is practiced (excluding ideology bias) is a reductionist activity. That is, once one decision is made it only takes the correct facts of another case to move the boundry of legal or constitutional. Build up enough of these cases and eventually the law will reason that black is actually white.
The law does not recognize in judging broad social effect. Even your civil rights example though having a broad results, was decided on a very specific question. In this way, the law acts in the model of science. Control all but one variable to reduce the question to something that is binary in answer: Yes vs No, Right vs. Wrong, Go vs No Go, constitutional vs non constitutional.
Thus, regardless of SS being a tax, If they rule on the mandate based on the 5th, I assure you there will be a case setup and taken to the Supremes. And, they will simply rule that because of mandate, SS/Medicare are also unconstitutional. It is the conservative wet dream. And it all comes because the US legal system either can not or will not or is taught not to deal with more than one variable within the issue presented.
It really is the worst system for dealing with deciding questions of law that have broad influence on the “promote the general Welfare” part of the Constitution. This is because the law as practiced in this period of our time does not ask specifically what role the issue the are deciding on plays in this goal of the Constitution. Though, as Bev notes, Ginsburg is trying.
I’ll qualify that I am not a lawyer. However, I did by the state of RI a law with my divorce (that is I set case law). I learned a lot about how thinking goes in law. It’s wacked from an outsiders view. Sorry Bev.
After all, Obama is a Democrat. Therefore the Romney plan, drawn up by AEI and the insurance companies must be a progressive dream come true.
or is it a Little red wagon painted blue.
Nice!
Coberly, what you’re not understanding is that if the ACA mandate is stricken down on the basis that it requires people to pay for an insurance policy that they don’t want to pay for and may never use, and that this violates their “liberty” right to not do that, then Social Security and Medicare would be vulnerable on that same basis,
Wrong, wrong wrong. Medicare and Social Security are purely government programs (as opposed to private for profit insurance companies operating under PPACA) paid for by payroll taxes (as opposed to a mandate to buy something with your own money). I’m not a lawyer, but legally, these appear to be very big, important distinctions, and why the mandate is now before SCOTUS.
The Supreme Court ruled on the Constitutionality of payroll taxes as well as Social Security and Medicare a long time ago. They are not likely to reverse well established precedent, not even under a partisan, conservative Roberts court.
Beverly, a mandate requiring individual citizens to purchase private insurance using their own money is NOT, repeat NOT legally the same thing as collecting payroll taxes to pay for a purely government program like Medicare.
This is what Coberly has been trying to get through to you for the last 20 or so replies (“if a mandate is a tax, then a a horse is a cow”, etc.). Before you vicscerally react, could you please show him the courtesy of actually READING his explanations? I think if you do, you’ll see the logic behind his (and my) position.
Personally I want *real* universal healthcare, as in Europe-style single-payer. However, what I want or don’t want does not in any way determine whether or not something is Constitutional.
Becker
couldn’t agree with you more about “the law.” but i am not ready to enact a bad law because not enacting it will provide a dubious (insane) premise for undoing a good law.
which Mr Obama has already undone, to the cheers of some people who call themselves progressives.
You see, if we can turn SS into welfare, and the health care system into a bonanza for the same industry that has created the evils in the first place… why we make the world a nicer place for the very rich. but as long as we say it’s “for the poor” our college liberals will think they have won.
I guess Kennedy is in a good position to decide whether to take the road to perdition for New Deal legislation. Hope he grasps that. Maybe he’ll rule the mandate unconstitutional but uphold the penalty for not having qualifying insurance, as equivelent to a tax like FICA. Never mind the soundness of so-called legal logic, which really doesn’t matter as we know from reading Scalia opinions. (Not that I love PPACA, but any scenario in which progressives can do better from scratch also is a scenario in which they can improve this law.)
PJR
don’t count on it. once you have handed over a hundred billion dollars in business to the people who brought you the Sacred American Way of Healthcare, you won’t pry their cold dead fingers off of it that easily.
but heck, here’s a piece of candy. wanna go for a ride in my car?
hard to tell what you meant, but the Mandate is NOT “New Deal.” it’s the opposite of New Deal.
but heck, if we say it’s “for the poor” the libs will fall for it.
how many congressmen can you buy with a hundred billion dollars?
does it seem wise for the government to create and fund an entity more powerful than itself?
don’t you people understand that however stupid, government is the only protection you have from the malefactors of great wealth?
how much protection will it give you when you have turned over the government to the same people who brought you the Great Recession… and before that the real Great Depression… by pretty much the same tricks.
I wasn’t comparing the mandate to the New Deal, Coberly. I was responding to Beverly’s thought that SCOTUS could make a ruling the nature of which could put the Court on a path to undo New Deal legislation. Indeed, that is one type of ruling that four members of the Court might like, and it’s probably up to Kennedy. I’d rather they drop the mandate but decide the “penalty” is similar to FICA–and constitutional–but nobody’s predicting that.
As for holding my breath, no thanks. Apparently either we are stuck with PPACA or we go back to scratch, in either case until we elect a sane Congress and President. Nobody’s predicting that, either.
PJR
i am hoping beverly’s equation is hers alone… though she says, apparently, that Ginsberg sees the same possibility.
I don’t. A mandate is still not a tax. It is unfortunately quite true that any SC can twist its own mind to force that idea upon us, but we at least ought to recognize what it is, or would be.
Beverly, and Ginsberg, appear to believe the person who gets paid under the mandate/tax is irrelevant. But it seems to me that making millionaires richer by act of congress forcing me to give them my “business” is clearly distinguishable from paying a tax, however that tax is dedicated to “something i don’t like.”
and, once again for those who care: yes SS is a tax, under the law. when the law was enacted that was considered crucial. and yes, SS … the payroll tax… is “not a tax” in the sense that you get your money back, with your name on it, plus interest, when you need it most. try that with your “defense” tax, or even your “welfare” tax.
you simply can not say that one thing is the same as another, just because in some respects they may look alike, or even have the same name.
Well, I’ve pretty much run out of ways to say that there are, in essence, two separate grounds on which the challengers are challenging the constitutionality of the mandate. I’ve run out of ways to explain that under one of those grounds—that Congress exceeded its power under the Commerce Clause to enact the mandate to buy insurance in the private market or instead pay a penalty to the government—Social Security and Medicare, both of which were enacted under the taxing power and not the Commerce power, could not be challenged as unconstitutional—and that under a separate, distinct ground under which it makes no difference whether the program requires you to buy insurance in the private market (or instead pay a penalty to the government) or instead requires you buy an annuity or medical insurance directly from the government, and that under that separate theory, it violates your individual liberty (under the Fifth Amendment’s due process clause, although these folks don’t actually say so) to have to buy a product that they don’t want to buy and that they may never use.
You either get this or you don’t. If you get this, you understand that it is only under the first theory—the it-exceeds-Congress’s-Commerce-power ground—that Social Security and Medicare are safe because those are government programs paid through the tax system, but that under the other theory—that it violates your individual liberty to require you to buy a particular annuity or insurance coverage, then Social Security and possibly Medicare also might be challengeable as unconstitutional, because these are programs that directly benefit the individual, who makes a separate claim and receives a direct monetary benefit—unlike, say, federal money spent on the national defense or on interstate highway building and maintenance.
I do think that, for that reason, they’ll couch their language entirely in Commerce Clause terms, which will necessarily change Commerce Clause jurisprudence. But they spent a stunning amount of time on Tuesday discussing individual “liberty”—i.e., the Fifth Amendment substantive due process ground, albeit without actually identifying it as that—and if that ground gets into the final opinion, then whether or not they call it a Commerce Clause ruling, it will give rise to grounds on which to challenge the constitutionality of Social Security and Medicare under Fifth Amendment “individual liberty” grounds as opposed to Congress’s taxing-power grounds, which was at issue in the long-ago case that challenged the constitutionality of Social Security.
In short: It may be hard to understand this, but there are two distinct grounds on which they could strike down the mandate, and under one of them it does not matter that the mandate requires the purchase of insurance in the private market rather than directly through the government. The conservative justices spent a whole lot of time discussing that ground—that, for example, young people are required to pay for insurance if they can afford to do so, even though they probably won’t need it until they get older.
Well, I’ve pretty much run out of ways to say that there are, in essence, two separate grounds on which the challengers are challenging the constitutionality of the mandate. I’ve run out of ways to say that under one of those grounds—the claim that Congress exceeded its power under the Commerce Clause to enact the mandate to buy insurance in the private market or instead pay a penalty to the government—Social Security and Medicare, both of which were enacted under the taxing power and not the Commerce power, could not be challenged as unconstitutional. I’ve run out of way so say that under a separate, distinct ground, it makes no difference whether the program requires you to buy insurance in the private market (or instead pay a penalty to the government) or instead requires you buy an annuity or medical insurance directly from the government, and that under that separate theory, it violates your individual liberty (under the Fifth Amendment’s due process clause, although these folks don’t actually say so) to have to buy a product that they don’t want to buy and that they may never use.
You either get this or you don’t. If you get this, you understand that it is only under the first theory—the it-exceeds-Congress’s-Commerce-power ground—that Social Security and Medicare are safe because those are government programs paid through the tax system, but that under the other theory—that it violates your individual liberty to require you to buy a particular annuity or insurance coverage, then Social Security and possibly Medicare also might be challengeable as unconstitutional, because these are programs that directly benefit the individual, who makes a separate claim and receives a direct monetary benefit—unlike, say, federal money spent on the national defense or on interstate highway building and maintenance.
I do think that, for that reason, they’ll couch their language entirely in Commerce Clause terms, which will necessarily change Commerce Clause jurisprudence. But they spent a stunning amount of time on Tuesday discussing individual “liberty”—i.e., the Fifth Amendment substantive due process ground, albeit without actually identifying it as that—and if that ground gets into the final opinion, then whether or not they call it a Commerce Clause ruling, it will give rise to grounds on which to challenge the constitutionality of Social Security and Medicare under Fifth Amendment “individual liberty” grounds as opposed to Congress’s taxing-power grounds, which was at issue in the long-ago case that challenged the constitutionality of Social Security.
In short: It may be hard to understand this, but there are two distinct grounds on which they could strike down the mandate, and under one of them it does not matter that the mandate requires the purchase of insurance in the private market rather than directly through the government. The conservative justices spent a whole lot of time discussing that ground—that, for example, young people are required to pay for insurance if they can afford to do so, even though they probably won’t need it until they get older.
As I just replied to HARM: In short, it may be hard to understand this, but there are two distinct grounds on which they could strike down the mandate, and under one of them it does not matter that the mandate requires the purchase of insurance in the private market rather than directly through the government. The conservative justices spent a whole lot of time discussing that ground—that, for example, young people are required to pay for insurance if they can afford to do so, even though they probably won’t need it until they get older.
There can’t be a penalty for failure to have something (insurance) that the law doesn’t require you to have. Upholding the penalty is upholding the mandate—although you’re right, PJR, that everyone could simply pay the penalty instead of buying insurance.
Bev
it’s not hard to understand that the lawyers are talking nonsense.
whatever they say, SS is a tax, not a mandate, and the government has always had the power to tax people for stuff they don’t want. on the other hand, the mandate is not a tax, and the Federal government, at least, has not previously felt it had the power to require people to engage in commerce.
even the state mandatory car insurance is couched in terms not of a mandate to buy, but a need to present evidence of financial responsibility to own a car you intend to drive on the public road.
lots and lots of room in there to distinguish. what the Court “reasons” is a branch of abnormal psychology. I hope they come out on the side of the majority (sic) of Americans. But I have no faith that they will. The ACA was written by their friends for their friends.
as for “young people not needing insurance until they get older” this is the damn folly behind the whole thing.
under medicare you pay for the medical care you will need when you are older… in small payments while you have a big income. the insurance company model is that you pay from month to month, so when you miss a payment because you are out of work, everything you paid no longer counts. and of course when you get older you pay more because THAT month your risk is higher than when you were young. this is stupid. but it is what we have learned to expect from the “experts.”
and those who can only think in the channel they are told to think in.
Beverly
it’s not hard to understand: it doesn’t make sense. not the first time that lawyers have failed to make sense by trying to twist their arguments to fit some precedent that doesn’t fit.
and again, a rational insurance system would have you paying for your insurance on a lifetime expected costs basis , with the payments prorated over your working lifetime. this month to month “risk” is a stupid, but very profitable, way to do it.
i suppose if they wanted to be clever they could make the penalty large enough to work as an insurance premium for government provided health care.
Last Monday another perfectly good lawyer argued that the penalty, if ruled to be a tax, can stand even if the mandate is ruled unconstitutional. If/if the court likes that outcome, it can come up with its legal reasoning regardless of whether half the lawyers think it’s BS. Wouldn’t be the first time.
Coberly:
As usual you conflate the issue with your typical bizarre explanations which lack merit. Yawn, you also exhibit a pure lack of understanding of what is covered and the cost to you of the ACA; but then and considering your age, why should you care? Medicare has you under its wing and you are not impacted by the ACA.
The one discussing nonsense is you as you have failed to read the bill to the same extent as you know SS. There is “NOTHING” else to sae the millions with no insurance and you can hope and dream for universal care or medicare; but it is still a long ways off silly.
Discuss the commerce clause and the 5th amendment as anything else hasNO merit coberly.
coberly:
Elaborate what those methods are of getting healthcare??? Is it the same medicare you are covered under?
Not a Tea Partier or Republican
Self-identify as liberal and would universal single-payer over PPACA.
And yet I “get” that…
A mandate forcing people to buy private insurance is NOT the same thing as a tax.
An exchange made up of private insurers is NOT the same as a purely government program (SS, Medicare).
The Constitutionality of payroll taxes or Medicare is NOT in question, unlike the mandate.
And…
What I want does not in any way impact the Constitutionality or non-Constitutionality of a law, no matter how badly I may want some of the provisions in that law.
This protracted discussion and the entire prolonged episode of legal actions is what you end up with when you accept an inadequate compromise to what started out to be an idea for which the time had come. Better health care has never been the goal of the health care act. Being able to provide and pay for good health care to all Americans has been the elusive goal. Until a nationwide all included third party payer plan is implemented, andWithout all the subsidiary issues of mandates, that goal will not be accomplished. Single payer is the only approach and Medicare is the proof of that point.
If the Supremes can rule this today:
Holding: Because the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of institutions, the Fourth and Fourteenth Amendments do not require the framework and rules Florence proposes.
Judgment: Affirmed, 5-4, in an opinion by Justice Kennedy on April 2, 2012. The Chief Justice and Justices Scalia and Alito joined the opinion in full, while Justice Thomas joined as to all but Part IV. The Chief Justice and Justice Alito filed concurring opinions. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan.
For this: Since Florence was the vehicle’s registered owner, the officer ran his identification and discovered a bench warrant for an outstanding fine. He had already paid the fine and carried a letter attesting to that fact, since he claimed he had been stopped on several previous occasions.
Court records show Florence was subjected to an invasive strip and visual body-cavity search. He was then held for six days in the county lockup before being transferred to a Newark correctional facility, where, he claims, he was subjected to another more intrusive search before being placed in the general prison population.
The next day a magistrate freed Florence, confirming what he had insisted all along, that the fine had been paid.
Then what chance do we have regarding We the people getting anything constitutional that helps the masses reduce the risk of living with this current court and our constitution?
This reasoning did not win:
In a dissenting opinion Justic Breyer writes that “such searches are inherently harmful, humiliating, and degrading,” and cites instances of a nun, women during periods of lactation or menstruation and victims of sexual abuse undergoing such searches. He finds “no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.”