I don't think that Congress has the authority under the Constitution

[JDPriestly]

to require people to buy health insurance from private companies.

Congress has these specific powers under Article I, Section 8.

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

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

I don't think that mandating that people purchase health care insurance from private countries falls under the necessary and proper clause. I could be wrong, but I think that is stretching it. They could argue that they could regulate the insurance that is offered, but I don't think they have the authority to order Americans to buy insurance from private companies.

They could expand Medicare coverage through the 16th Amendment which gives them a certain power to tax incomes:

Amendment XVI

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

That would permit Congress to have a public option through its power to tax, but I just don't see how the U.S. Constitution authorizes Congress to require people to buy insurance from private companies. The government could tax income to pay for a public option and allow people tax credits to buy into private insurance instead, but that is the only way that I see that this could be done. Just my understanding of the Constitution.

http://www.law.cornell.edu/constitution/constitution.am...

[Romulox]

1. "To regulate commerce...among the several states..."

While I agree with you in principle, the above language "the Interstate Commerce Clause" is the basis for most extensions of the power of the Federal government.

Almost anything can be said to "affect interstate commerce" such that it may be regulated under the ICC.

[ddeclue]

2. You can't use the power of the Federal government to force

citizens to buy products from private companies.

Why not a law requiring that all citizens carry cell phones?

Better yet why not a law requirign that all citizens carry Verizon cell phones?

There's a limit to how far you can stretch the ICC.

[Romulox]

3. I don't know what "can" means...

The way it works is this: First, they do it. Second, it's challenged. Third, the Court decides the case one way or the other.

So while I agree with your POV, I don't necessarily agree with your analysis of how the Court will see this. That doesn't mean I'm the champion or defender of the tortured Commerce Clause analyses cases have relied upon. But I am all too aware of them!

[JDPriestly]

5. Who does it? I've never heard of the federal government requiring

citizens to buy a product or service from private or non-profit businesses.

As I said, states have different rules. The legislatures of the states are not bound by the U.S. Constitution. The legislatures of the states are not bound by Article I, section 8.

I repeat: we could have a public option offered by the government, technically collect a tax and require everyone to participate in it and then allow anyone who wished to do so to opt out and get a tax credit for opting out. It sounds like the same thing, but in my opinion my suggestion would be acceptable under the Constitution. The other one (requiring Americans outright to buy private insurance would not be acceptable.) The federal Congress has limited powers. We must keep that in mind. Congress often overlooks that fact.

[Romulox]

9. States ARE bound by the US Constitution. The States and Federal government have different powers.

At any rate, I'm not sure if you're making a "should" argument, or predicting how the Court will rule. If it's the former, I'm with you. The latter? Not so sure.

[JDPriestly]

14. They are not bound by the Article I, section 8 enumeration of the powers of Congress.

I think that we are not going to see subsidies or requirements that we buy insurance from private companies. I think that this will be accomplished through tax credits. Everyone who buys insurance from a private company will get a tax credit for the cost of the insurance. For low income people, the tax credit will entail a refund. It occurred to me this morning that is why Obama spoke both of subsidies and tax credits. It is the only way that Congress can force us to buy private insurance -- by making that cost either credited to our tax liability or outright refunded to us when we pay our taxes. This will mean that Americans have to pay the cost of insurance up front. Considering how tight most Americans' budgets are, this is unrealistic.

[truedelphi]

19. i think that you have nailed it.

And if this would force the People in theBeltway, including Obama to realize that putting aside Universal SIngle Payer HC for All, on the table, and supporting that and only that, then this legalistic viewpoint might bear fruit.

[JDPriestly]

6. How could this even be argued under the Commerce Clause?

This is a genuine question. I just don't see it.

[Romulox]

7. Anything said to "affect" interstate commerce is thought to be regulatable under the clause

In the past, the government has successfully argued that not buying particular products "affected" interstate commerce such that the government could regulate even non-economic activity.

[JDPriestly]

15. Not true. There was a gun regulation case in maybe 1995 or 1996.

The regulation of commerce clause did not apply. Exceptions are rare.

Anyway, since posting this, it occurred to me that Congress probably is not actually going to require Americans to buy insurance from private companies but is going to give us tax credits for buying it. For low income people, the credits will probably entail refunds. That is how they can get around the Article I, section 8 limitations. They will use the tax and appropriations powers that they have. This will be a hardship for Americans who can barely pay their monthly bills and cannot wait for a tax credit refund at the end of the tax year. I don't know how this will be managed.

[Romulox]

18. Unfortunately, the Lopez case announced no intelligible standard.

The holding of that case is, as they say in the biz, likely limited to its facts.

[JDPriestly]

20. Not allowing the sale of particular products in a particular state or

to a particular group of people (discrimination) could come under the commerce clause because the thing being regulated is a commercial entity (in commerce), but individuals are not commercial entities. The court cannot order people to buy specific products under its power to regulate commerce. I just don't think that is possible. Name one instant in which the Supreme Court upheld an order by the FEDERAL government to a person to buy a specific product or to buy from one or more companies offering a specific product. I don't think that a court every has or ever would uphold a federal law ordering that.

[JDPriestly]

4. Congress can regulate companies operating in interstate commerce,

but ordering Americans to buy a product or services from a list of private companies? I don't think so.

I think they can tax Americans and allocate tax money for insurance (as with Medicare). They can then exempt people from that tax under certain conditions such as that people show proof of money spent on a private insurance plan, but I do not think the U.S. government can order you to buy insurance from one of say ten companies or, in the alternative, pay a penalty or an additional tax. A state may be able to do that because its legislature is not limited by the U.S. Constitution in the way that Congress and the other branches of the federal government are. This is my reading of the Constitution.

The Commerce Clause has its limits. I posted it above. Regulating commerce does not include requiring Americans to buy something from private companies.

States can require the purchase of automobile insurance, first, because they are not limited by the U.S. Constitution (I am assuming that the state's constitution permits its legislature to require that) and, second, because they don't require everyone to buy automobile insurance. States condition the registration or licensing of the automobile (which is a privilege not a right) on passing certain requirements such as, in California, a smog test, and showing proof of insurance. People have the alternative of not owning a car. That is completely different.

[Hoopla Phil]

8. They may "regulate" it but they cannot force a free person to participate in it.

Only regulate it once the participation takes place. There is NO power to force participation in interstate commerce.

[Romulox]

11. Until it is litigated, we all are entitled to our opinions.

I think the Court may well approve of the practice. Whatever they say becomes law, one way or the other.

[TexasObserver]

12. I agree with everything you've posted in this thread.

What the law is and what we wish it would be are often not the same. It's important to know which is which.

[JDPriestly]

16. Since writing this post, I figured out they plan to use the appropriations

and tax powers. That is why Obama made the confusing statements about subsidies and tax credits. They won't directly require Americans to buy insurance from private companies. They will simply give Americans credits for the money the Americans spend on the insurance. The credits will be refundable to low income people. This will be resented by many Americans who do not make enough as it is to cover their essential bills. This is not going to be popular for less wealthy people. It will be hard to understand and will make filing taxes difficult as people have to file proofs of payment for insurance. What a mess!

[TexasObserver]

17. And I agree with this post.

I am very much opposed to this particular approach.

I want health care reform, not making the health insurance monster bigger and worse.

[BlooInBloo]

10. .

[ProSense]

13. They most certainly

can.