An Unconstitutional Exercise of Congressional Power

[SHRED]

Compelling us to buy a private product or face penalty.
Has this happened before in our history?(auto insurance is a false comparison...see below)

The Individual Mandate: An Unconstitutional Exercise of Congressional Power
by Sheldon H. Laskin,
December 21, 2009 - 2:44pm

It is generally agreed, by both proponents and opponents of the Administration’s health reform bill, that the lynchpin of the legislation is the individual mandate requiring uninsured Americans to obtain health insurance, or pay a tax penalty for failing to do so. Without the mandate, even the Administration’s wildly exaggerated cost savings estimates simply cannot work. The whole plan is predicated on enlarging the risk pool by bringing in younger, healthier people who currently lack the means or the incentive – or both – to purchase health insurance.

Given the centrality of the mandate, it is somewhat surprising that little attention has been paid to the critical legal question of whether Congress has the constitutional authority to require Americans to purchase a commodity from a private, for-profit corporation. Other than some limited commentary on the Right -- George Will and Orrin Hatch both had columns on this topic in the Washington Post and the Heritage Foundation recently published a detailed legal analysis of the question – there has been almost no critical discussion of the issue. The silence on this issue is even more amazing in view of the fact that the Congressional Budget Office raised a red flag on the question during the Clinton Administration’s abortive effort at health care reform:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.

~snip~

Finally, proponents of the mandate often cite the fact that states require drivers to purchase auto insurance as justifying a federal individual mandate for health insurance. This is a facile comparison that ignores the constitutional differences between federal and state authority to regulate. As noted above, Congress can only legislate when there is a specific provision of Article I of the Constitution that authorizes it to enact that type of law. Conversely, the states have virtually unlimited legislative authority to pass laws that foster the public welfare, health and safety. Driving is a privilege, and the states are free to impose any reasonable condition on the exercise of that privilege that they choose. In any event, the states have limited the auto insurance requirement to the purchase of liability insurance to cover injuries sustained by third parties. No state requires drivers to purchase insurance to cover their own injuries.

For single-payer advocates, a very powerful argument is that, while the individual mandate to purchase private health insurance is unconstitutional, Congress can lawfully tax to support a government financed health insurance program. Article I empowers Congress to use its taxing powers in support of government programs that foster the public welfare; this is the constitutional authority for Social Security and Medicare. But to extend that authority to requiring Americans to purchase a private commodity raises profound civil liberties issues. If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it. The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don't. Obesity crisis? Order Americans to join health clubs, or tax them if they don't. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses.

..............................

Sheldon H. Laskin is an attorney who has appeared in the United States Supreme Court. He is an Adjunct Professor in the Graduate Tax Program at the University of Baltimore Law School. Mr. Laskin specializes in state tax cases under the Commerce Clause of the US Constitution.

FULL ARTICLE:
http://www.antemedius.com/content/individual-mandate-unconstitutional-exercise-congressional-power

[zeemike]

1. Just saw Mary Landrue on C-span.

She says yes we can mandate insurance and that they will do it no matter what we think about it....that she has been elected 3 times and she will be elected again.

That shows you just how sure they are that they control this country and will stay in power no matter what...

This should scare the shit out of us and we should revolt against the destructions of the constitution but will we?

[ixion]

2. "The government has never required people to buy any good or service as a condition..."

of lawful residence in the United States.

End of discussion.

If this passes, I hope there are lawsuits aplenty.

[LiberalFighter]

3. Laskin is not qualified.

[jaxx]

4. Ensign is saying it's unconstitutional.

Strange bedfellows.

[Gravel Democrat]

5. The Speaker of the House doesn't think it's a serious question

despite having taken an oath to "support and defend" it.

When Asked Where the Constitution Authorizes Congress to Order
Americans To Buy Health Insurance, Pelosi Says: 'Are You Serious?'
http://www.cnsnews.com/news/article/55971

audio clip available at link

notice a 3rd rate news org has to ask, presumably FOX, NBC, ABC CBS,
MSNBC, and CNN were too busy covering Avatar, or Palin, or Tiger.

“You can put this on the record,” said Elshami. spokestool for Pelosi
“That is not a serious question. That is not a serious question.”

Elshami responded by sending CNSNews.com a Sept. 16 press release
from the Speaker’s office entitled, “Health Insurance Reform, Daily Mythbuster:
‘Constitutionality of Health Insurance Reform.’ The press release states
that Congress has “broad power to regulate activities that have an effect
on interstate commerce. Congress has used this authority to regulate many
aspects of American life, from labor relations to education to health care
to agricultural production.”

Basically anything they choose.

"I, (name of Member), do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States against all enemies, foreign
or domestic; that I will bear true faith and allegiance to the same; that I take
this obligation freely, without any mental reservation or purpose of evasion;
and that I will well and faithfully discharge the duties of the office on which
I am about to enter. So help me God."
http://clerk.house.gov/member_info/memberfaq.html

[unblock]

6. all they have to do is make it a part of the tax code and it's constitutional

because ultimately they're taxing income. it won't be phrased as a direct mandate to buy insurance.

instead it will simply be a tax credit you get if you buy your own health insurance. you don't get the credit otherwise.

perfectly constitutional when done that way. but, of course, it's no longer a "mandate" in the sense that (a) you're not required to buy it, you simply pay more income tax otherwise and (b) the mandate only applies to those who have enough income to otherwise owe taxes in the first place.

but both (a) and (b) have already been announced as part of the so-called mandate.

so, no problem as long as the law actually drafts it up this way.

[immune]

7. It isn't unconstitutional

Congress has the constitutional authority to mandate or prohibit any activity that involves a dollar sign via the commerce clause.

[slackmaster]

9. They have the authority to regulate and tax commerce, not to mandate it

There is a big difference.

[immune]

10. regulate ... mandate

When you boil it all down, what's the difference?

[slackmaster]

11. Regulation is setting conditions and restrictions on activity that a person chooses to do

Mandate is obligating someone to do something whether or not they want to do it.

[immune]

12. I'm obliged

Regulation also obligates people to do (or not do) many things that they know are basically self-destructive. We're playing with sematics here, the bottom line is that they have been regulating access to medical care by way of private insurance companies since god knows when and I would ask you, if that regulation was not always done under the pervue of the commerce clause, what was their "mandate"?

[slackmaster]

13. Please name one thing that any US regulation obligates a person to do

You may have to fill out a certain form or pay a fee as a condition of doing something, but doing that thing is always optional.

[immune]

15. Always optional?

Grow some hemp in your back yard and discover what your options are. Now if you happen to own a corporate experimental farm, the conditions may change.

Likewise, the rules vary depending on the kind of healthcare you opt to seek. Who makes those rules? Paying a fee to opt in or out of any rule or regulation is extortion.

The playing field is two tiered and its a good idea to know which tier we're living on, otherwise we tend to squabble among ourselves instead of looking to where the real dangers lie.

JMO

[slackmaster]

16. Growing hemp is a purely discretionary act

So is operating a corporate experimental farm.

[WeDidIt]

8. I love how Poutraged Whinefests always end up adopting the bullshit of the right

This is rightwing bullshit and has been since mandates were first discussed,

And it's a bullshit argument that will go nowhere.

[bvar22]

14. I love how those people....

...who support the MANDATED transfer of Public Money to For Profit Corporations call those of us who oppose it "Right Wing".

Up is Down
Black is White
War is Peace.

Double Plus Ungood, comrade.

[happyslug]

17. This is a good question and one that may reach the Supreme Court

Remember Social Security is a VOLUNTARY program, you do NOT have to to have a Social Security Card (Unless you decide to work OR your parents wants to claim you as a deduction after you turn 6 years of age). You do NOT have to apply for Social Security benefits when you turn 65. But you have to pay a SOCIAL SECURITY TAX (and the card is to make sure you pay the TAX not get the benefit).

When it comes to Car Insurance, States can demand that you have insurance to operate an motor vehicle, but no state has ever required you to have insurance just to walk down the street (And the same with Driver's licenses, no state has EVER said you MUST get a driver's license, all the states have said is if you want to operate a Motor Vehicle you MUST have a License).

When we had the Draft all males over age 18 MUST register for the Draft. Under the pre-Carter Draft you were issued draft cards that any officer of the law (Federal or State) could demand you present. Failure to have that Draft card on you was prima facia evidence of a failure to register and grounds for arrest. Even today, if you are in the Military and get discharge if you can NOT present your Discharge papers you are presumed under the law to be a deserter (And this rule pre-dates the Constitution and was known to the writers of the Constitution and the Bill of rights, it was a rule adopted under George Washington under the influence of Von Steuben during the Revolution). As a rule that existed at the time of the Writing of the Constitution and the Bill of Rights and NOT changed by the first congresses it is presumed to be valid even today (And has never been challenged for that reason).

This fee is different, in that you MUST pay the fee OR get insurance. Unlike the discharge papers it is NOT papers that shows your time of enlistment is up (which is a contract with the GOVERNMENT not a private organization). It is NOT the same as the Draft Card which was a registration WITH THE GOVERNMENT. It is NOT the right to operate a deadly device (Which is what any motor vehicle can be) on the public streets. It is NOT a benefit from the Government (which is what Social Security is). It is NOT a registration that you paid a tax or a number needed by others who deal with you to pay a tax (Your Social Security Number). You either pay this fee OR show evidence that you paid a private person (And the Tax does NOT guarantee you insurance, it is just a tax).

What I see as the real problem is that the Tax is NOT tied in with obtaining the Medical coverage. Given that it is a PUNITIVE tax for those people who do NOT have insurance AND does NOT provide that insurance if the tax is paid (i.e. the tax would NOT be in question if, when the tax was paid, you would be covered by some insurance program for then payment to a private insurance program would be just a pre-preemptive method of paying for that service).

Once you decide that the above is the legal issue exactly what Constitutional provision does such a law violates? The best attack would be that is violates equal protection of the laws in that people who can NOT obtain private health insurance has to pay the tax and still NOT get health insurance. Notice low income people will NOT be able to bring this challenge for they will be eligible for Medicaid. Upper Income people will prefer to pay whatever the insurance fee is for it would be cheaper then any percentage tax. That leaves the working poor i.e. making to much money for Medicaid but not enough so that a Medical plan is out of reach. under our system of law you have to have an interest in the litigation and to have an interest you have to be potential harmed thus someone who is the working poor will have to the the Plaintiff and claim that the Tax violates his or her right to Equal Protection of the laws in that the tax is cheaper then any insurance program but if he pays the tax he or she still gets no health insurance. If the medicaid coverage is increased enough to prevent any one in this group then no one is harmed, but I suspect someone in some state (Probably a Southern state, Southern states are notorious for NOT funding Welfare) will fit the bill and someone could use him or her as the nominal plaintiff just to have standing to attack the tax.

Other then an equal protection of the law attack I do NOT see this tax being successfully attacked. The main reason is the Courts since the 1930s have deferred to Congress when it comes to the issue of taxation, including what is taxed and what is a tax (There was some question as to Social Security when Social Security was firs set up, so Congress when it set up Social Security did it a two step manner, Social Security itself and the Social Security tax as a independent tax. The power to tax was even then viewed as an absolute power or Congress so was clearly constitutional. The only question was to the Social Security program itself, which was upheld by the Courts given that the tax was constitutional).

Thus the fee is Constitutional if it survives an equal protection of the law attack. Does this treat people equally? Not fairly or 100% the same, just equal. Worse, the Courts have said the equal protection clause only applied to FEDERAL RIGHTS guaranteed in the FEDERAL CONSTITUTION, thus Congress can treat people of different income at different rates. Just pointing out even a Equal Protection claim will be hard to prove, but it is the only way I see to attack this fee.