Is Federally Mandated Private Insurance Constitutional?

[ThePhilosopher04]

If so, why?

Additionally, if one chooses not to purchase insurance, what would the fine be and where would the fine money go?

Lasty, if it's not constitutional, how quickly do you think it would be challenged in court?

[elleng]

1. It entirely depends upon how such 'mandate' is crafted.

[Kablooie]

9. Actually it entirely depends on the whims and biases of the Supreme Court.

Doesn't really matter if it follows the constitution or not.

[Romulox]

21. More technically, the Constitution means whatever the SCOTUS says it means.

I've tried to explain this to people in the past (even to one fellow who'd claimed to have attended law school,) and very few can comprehend this blindingly obvious point: cases aren't decided on facts, precedent, or even logic. Cases are decided on ideology, after which a justification is discovered (even if it has to be crafted wholecloth.)

This self-evident truth however makes "true believers" so uncomfortable that they simply cannot accept it, it would seem. :shrug:

[Techn0Girl]

2. Auto Insurance Is mandatory in I Believe Every State - and You Get Fined If you Don't Have it...

So the precedent is there.

By the way I am old enough to remember when auto insurance was NOT mandatory. The Insurance companies pulled this same scam to make it mandatory promising that rates would go down .

Rates went UP in all states within a few years of it being made mandatory.

Same Scam - Wake Up America.

[ThePhilosopher04]

3. Auto Insurance...

isn't mandatory, considering that owning a car and driving is a privilege - and optional. Mandatory health insurance isn't optional by definition - unless you choose not to live.

Secondly, states require auto insurance, not the Federal Government.

[Techn0Girl]

18. Driving a car is effectively mandatory for anyone....

Who lives in certain areas and wants a certain quality of life and/or job.
Saying it is not mandatory for most people is naive at best and disingenuous at worst.

Clean healthy water is not mandatory either - you can choose to drink tainted water - so we can set a penalty on those who only drink clean water . Same argument.

[anigbrowl]

22. No it isn't. It's fundamentally different.

You could be married and let your spouse do all the driving. You could use transit, moving to city if required. There's a wide variety of ways you could avoid driving; from a legal point of view it's entirely voluntary.

[Techn0Girl]

30. It's only "fundamentaly different" to you...

But for the bulk of people who actually have lives and jobs rather than pontificate nonsensical hypotheticals on the Internets, driving and hence automobile insurance is quite mandatory.

[anigbrowl]

31. What's nonsensical about it? Lots of people don't own cars.

Sure, for many people driving is a necessity...for the places they live and the jobs they do. But that's a matter of choice. I used to drive, but haven't for several years, by choice (largely because it's a hell of a lot cheaper and simpler for me to live inside a city and take public transport).

The reason it's fundamentally different is because there is no law that requires you to own a car and drive it on the public road, and therefore no constitutional conflict over the mandate to buy insurance. Furthermore, a main point of auto insurance is to cover the expenses of someone else who might be injured as a result of your driving; insuring the driver's safety is secondary, although that and seatbelt/helmet laws are design to prevent an injured driver from becoming a public burden.

If you can't see the difference between this and health insurance, then there is no explaining it to you.

[Lance_Boyle]

19. Choosing not to live is illegal in the US.

Suicide is outlawed.

[closeupready]

34. That fact actually could form the basis for throwing the mandate out.

n/t

[RogueBandit]

4. But you don't have to drive

"Auto Insurance Is mandatory in I Believe Every State"

I think you're right, it is mandatory if you want to actually drive. But driving itself is not mandatory, so the analogy doesn't really work.

If there is no public option and they say I'm forced to pay, I'm probably be going to go to jail or leaving the country I love, because I'm not going to be forced to pay profits.

John in Oregon

[ThePhilosopher04]

5. There's no question...

I would choose not to pay on principle, and will go to the emergency room if I get sick or injured...if I die, I die. But the fuckers aren't going to get my money if they ramrod this piece of shit legislation through.

[Jamastiene]

10. Civil disobedience is called for in this scenario.

They are punishing the poor and we are the real majority nowadays. I'll bet it is going to cost them a lot to imprison all of us. They'll need to build lots of new prisons in every hamlet, bus stop, town, city, and state.

[xiamiam]

32. cheney heavily invested in prisons i think..nt

[barbtries]

15. i see i'm not alone in this determination

if they push this through it could be the catalyst for an actual uprising by the people. if enough people said fuck you to the insurance companies, and i'm on board for that.

[Jamastiene]

8. Auto insurace is only mandatory if you own and drive a car.

If you don't, then you are not required to get auto insurance. That is a little different.

[Bonn1997]

13. Darn; you beat me to it!

[Bonn1997]

12. But having a car is not mandated (even though it's a necessity for most people)

[Romulox]

23. The most basic thing that is wrong with what you've written is that we're talking about the FEDERAL

government, not the State government. :hi:

[rd_kent]

24. But that is insurance to cover damage YOU cause to SOMEONE ELSE.

No law say you have to have insurance on your own car. Its a big difference.

[LaydeeBug]

33. every place that requires auto insurance has a PUBLIC OPTION to insure everyone.

in Maryland, it's called MAIF.

[Meeker Morgan]

6. I don't know if it's constitutional or not, but I do know ...

... that back during the election campaign I expected single-payer.

Maybe that was foolish of me, but I'm not the only one.

[mmonk]

7. You can bet it will be challenged in our court system.

[TexasObserver]

11. Given the judicial attitudes on left and right about government mandates, probably.

It's hard to imagine a Supreme Court that has swallowed the Patriot Act choking on mandatory insurance. Certainly, they can hang it on their usual set of rationalizations. Health & Welfare. Provide for the common good. Regulation of Interstate Commerce. Equal Protection under the law. Pick one. The US Supreme Court can rationalize constitutionality any time it wants to, and does.

Given the direction of rulings the past 30 years, it's a safe bet any such law would be considered constitutional. The GOP controlled Supreme Court has moved toward expanding government in many directions, and their activists judges like Scalia have led the way.

If the GOP majority of the SC were to reject the health care mandate, it would be for political reasons, which is always possible, however.

[ThePhilosopher04]

14. Essentially...

what you're saying is the SC will make a good case for Single Payer to justify declaring mandatory insurance constitutional????

[TexasObserver]

16. No, I wrote what I meant. If I meant what you wrote, I would have said that.

FYI - using "what you're saying is" as a mode of arguing is always weak and ineffective. It suggests you lack good reading comprehension, and what follows the phrase usually confirms that notion.

[kctim]

26. I agree with what you said though

single-payer IS a mandate the same way this mandatory insurance is and if the SC justifies one, it justifies the other.

[treestar]

37. No one on this thread is quoting any case law

Just going by emotions.

But there may be a precedent that would underpin it.

The SCOTUS can't be faulted by progressives for pushing it, or they'd have to give up Roe v. Wade. that involved stretching constitutional principles.

[TexasObserver]

38. That's because it's not necessary.

Your comment that "the SCOTUS can't be faulted by progressives for pushing it" misses the point. Do you know how the Supreme Court decides to change the law by opinion? All it takes is five votes and a rationale five justices will buy. That's it. They decide what they will do, then they figure out how to get there. Roe v. Wade would already be overturned if the rightwing judges had five votes to overturn it.

Stare Decisis is a joke at the Supreme Court level. Sure, they base every case upon it, but that's an illusion. It's a standard that is used as long as the court wishes to follow it, but the instant the court wishes to turn away from a line of decisions, it can always find a case upon which to hang its hat.

I've been reading SC opinions for 35 years, and they all use prior case law to justify the decision of today. Most of the time, they're fairly reasonable, but any time five justices want to move the law in a direction, they can and do. They don't need no stinkin' precedent, either. They'll create one, hang it on some case in some other line of cases, and call it a decision.

As I have indicated previously in a post, the court will decide what it wants to do on constitutionally based upon its POLITICS, and will then find the case law basis for it.

[unblock]

17. it will be done as an income tax incentive, so no, it is not unconstitutional

if it's done as an outright fine unrelated to income tax, then that would certainly problematic.

however, if they hike everyone's income tax by $400 and then give a $400 credit to anyone who buys health insurance, then that works, constitutionally. the tax code has always had many such incentives and the supreme court has never ruled against this concept.

[Techn0Girl]

20. No it states that it will be a PENALTY - NOT an incentive...

It's comically tragic that government now calls taxes "incentives" and that so many people fall for it.

It will NOT be done as a credit - it will be an additional tax - plain and simple.

[anigbrowl]

25. I don't think it is, and it will most certainly be challenged

and that's the #1 reason I'm against the health care proposals as they currently stand - not only do they amount to corporate welfare for insurance companies in many respects, it's doomed to run into legal problems straight out of the gate, over the mandate rather than over public provision. I've been saying this for month, and I think it's political suicide in that respect.

I am OK with paying more taxes to fund a single payer system, although such a proposal is a lot harder to actually implement than it is to suggest. I am absolutely not OK with being required to enter into a contract with a commercial entity even if there is a subsidy available to do so. It is wrong on the moral, legal, fiscal, practical and political levels.

[Romulox]

27. Because any human activity can be said to "affect interstate commerce", there is no practical limit

to the Federal government's power. The exceptions are so few and so specific as to not merit mention.

[kenny blankenship]

28. Slavery was Constitutional. So why not this?

The Constitution by itself is a VERY low bar.

[leftstreet]

29. Here's how they're going to do it: (Taxing and Commerce Clause)

In recent months, several commentators have suggested that a major element of the health care legislation before Congress is unconstitutional. Under the House and Senate bills, access to health care would be increased by imposing a mandate on individuals to purchase health care coverage. But, say some experts, the federal government does not have the power to require people to buy an insurance policy.

While there may be a germ of truth to this argument, there are no constitutional barriers to the kind of insurance mandate contemplated by Congress. To be sure, if Congress passed a law whose only provision entailed a mandate for individuals to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise. Imagine a criminal law that required people to buy an American-made automobile to bolster the domestic car industry. But that is not the kind of mandate Congress is contemplating. Rather, the House and Senate approach will readily fall within their taxing and commerce clause authority.

Critics of a mandate correctly observe that the federal government is a government of limited powers. While state governments have broad powers to regulate on behalf of the general welfare, the federal government can only act under a power enumerated in the Constitution. Thus, even though states can require people to purchase automobile insurance, it is not necessarily the case that Congress can require people to purchase health care insurance.

Nevertheless, a mandate to purchase insurance can be justified by the Constitution's grant to Congress of a taxing power and a commerce clause power. The taxing power is a well-established basis for enacting an individual mandate. Indeed, this country has had a tax-based mandate to purchase health care insurance for nearly 45 years. The Medicare program imposes a payroll tax on Americans as a way to fund coverage of their hospital costs once they reach age 65. People cannot opt out of Medicare; it is an obligatory system of health care insurance for one's senior years. Similarly, Congress can use a payroll tax to implement a mandate for individuals to purchase health insurance before they reach age 65. Under the House bill, for example, people will pay a 2.5 percent tax on their income unless they have health care coverage.

more

http://www.huffingtonpost.com/david-orentlicher/an-individual-mandate-to_b_391810.html

[ThePhilosopher04]

39. I disagree...

with this guy that it's constitutional and it will no doubt come before the Supreme Court...be that as it may, even if it is, under the circumstances described in this post, it's essentially not enforceable.

[Unvanguard]

35. Basically without question, yes.

It's no more legally problematic than an income tax. If you prefer, think of the penalty as the tax, and the insurance purchase as a way to get that portion of the tax removed.

[ThePhilosopher04]

40. I don't think it is...

because you're essentially forcing individuals to fund a private, for profit enterprise (which by the way, produces no product or direct service) with no public competition or option...an analogy would be the public/private school situation...we mandate that every child be educated, but we can't force them to attend private/for profit schools.

[Unvanguard]

41. We don't. That is not the same as saying we can't.

The proper analogy here would be a case where only private schools existed, but money spent on education was tax-deductible--so, in effect, parents who did not send their children to private schools paid additional taxes. I don't think that would be unconstitutional in any way.

[treestar]

36. It might not be

States might be able to do it.

Liberal states should try for state wide single payer plans.