Question: If we are required to contribute to the Medicare, how is the "mandate" unconstitutional?

[mcablue]

To those who contend that the mandate in this reform bill is unconstitutional; aren't we already forced by law to contribute to the funding of Medicare, and Social Security as well? Isn't this the same as the mandate?

[customerserviceguy]

1. That's precisely the point that the Rethugs will make

They will label this HCR law as a new tax, and they'll have a good point.

[mcablue]

3. But taxing is constitutional

Isn't it?

[daa]

21. Taxing yes

buying high priced private insuance NO.

[tsuki]

22. But is taxing to benefit a corporation constitutional? I think that is the

argument they are making, but with a Republicon, it is hard to tell.

[customerserviceguy]

43. Taking your land to give to a corporation is Constitutional

but it sure isn't popular. Whoever writes the Rethug talking points will have plenty to work with in 2010.

[spicypickle]

35. If you think forcing someone to directly buy a product is a tax

Then you have a point. If the government forced you to go to a local car lot and buy a very specific car, would you call that a tax or would you call it unconstitutional? When people say that this is unprecedented, this is what they mean. If the government can force you to buy this product, what kind of product can't they force you to buy using this precedent?

[hansberrym]

24. That's precisely the point the government will make

The penalty is really a tax, they will say.

It is the same shell game as with Medicare and SS. Those programs were sold to the public as "insurance", but when challenged in court payments to the "insurance" system were claimed to simply be taxes. Moreover there is no contractual right of individuals to get the "insurance" benefits they paid for.

Imagine any other corporation forcing you to pay for a product, but reserving the right not to deliver the product you were forced to pay for.

There is no contract, there is no insurance, it is simply taxation.

[dkf]

2. Because you are forced to pay private insurers who make profits.

No one should be forced to buy a product in a wasteful system with profits galore.

How is that not wrong?

[Proud Liberal Dem]

4. That is a moral argument

not a constitutional one (but a good argument nonetheless)

[TorchTheWitch]

5. Medicare is a TAX that goes to the government

The mandate in this bill is forced purchase of a private industry's for-profit product. Tell me you don't see the difference between the two?

[Jamastiene]

6. That's just it.

The mandate (without good cost controls like the public option and regulation) is going to make enough people mad that they will challenge it in court.

What is going to happen because of the mandate is that the court is either going to say it is constitutional or;

the court might say it is unconstitutional and the next thing you know, goodbye Social Security and Medicare too, because they will immediately go after those programs too. That's what the Republicans would LOVE to do; end Social Security and Medicare. They hate all programs like that.

Really, what's happening is that the mandate is threatening Social Security and Medicare also. That's one of many reasons it needs to go. It's one of those can of worms/slippery slope scenarios.

[clear eye]

9. I doubt this SCOTUS will find the mandate unconstitutional.

A SCOTUS that's about to find corporate campaign donations "protected political speech", can find a creative way of justifying the mandate. It's main danger is the direct financial risk it puts all of us in, and the resulting alienation from anything resembling a nat'l health plan it will cause. It's lousy in itself, and it has the potential to derail the movement toward something better.

[Nikki Stone1]

18. Exactly. Everything corporate will be "constitutional" but the people have "free speech zones."

The Corporate States of America.

God help us.

[clear eye]

20. Agreed, except IMHO, we need to help ourselves. n/t

[Zynx]

10. The court will probably just dismiss such a case.

This really is not a legitimate discussion.

[spicypickle]

32. And.......

Does anyone really believe Obama opened this can of worms accidentally? No way. The man is many things but dumb isn't one of them. Take that to it's logical conclusions.

[HereSince1628]

7. I've read a couple of lines into that argument

I have no idea if any of them are good arguments and even if they are whether they could get so far as to have a court challenge...

First is the notion that the constitution discusses regulation of business and the HCR outstretches that reach.

Second is the issue of uniformity before the law. Taxes placed onto citizens are to be uniform across the states. The cost of private insurance isn't going to be uniform. I've also heard that the Nebraska compromise, and not the entire bill is unconstitutional under this last argument.


Again, I am not proposing these, I am just reporting to give you an anwer to the question you raised. I personally can't imagine that a wholly unconstitutional HCR could have been created, even if some of its provisions turn out down the road to be tested in court.

[Zynx]

11. There is basically no boundary on regulation.

You can regulate as much as you want so long as it is not arbitrary or capricious. This is neither.

The second argument is not really legitimate either. Health benefits and TANF benefits are given out without respect to differentials in costs of living in Milwaukee versus Madison or New York versus Albany as far as I can tell.

[spicypickle]

37. It's arbitrary enough....

For me. If someone had told me a few years ago that the government would be trying to force me to buy health insurance in a few years, I'd have called them a lunatic. Of course, I don't keep up with the goings on of government that much and am not really very educated. I think I'm representative of most people in this country. I doubt most people ever expected that they'd ever be required by law to buy health insurance. I doubt most people think the government has any right to do that. Which is why you're hearing such a fuss over this mandate. People are in disbelief of this. Some of us are dismayed. Some of us are just speechless at the arrogance and the brazen fashion in which this is being done. Some people don't know what to say or how to say it.

[dhpgetsit]

8. Pequiring us to purchase insurance from a private, for-profit company

is not totally unprecedented, if you consider that you have to be insured to drive a car. But you can OPT NOT TO DRIVE A CAR. I guess we could opt out of life too, but I thought we were entitled to life, liberty, and pursuit of happiness.

[clear eye]

12. Good points all.

I suspect SCOTUS will stop at the analogy to car insurance, or simply refuse to take the case by flatly declaring there's no Constitutional issue.

[TorchTheWitch]

13. It IS unprecidented

Car insurance is no comparison. Liability insurance is not a federal requirement it's a state requirement. It is also not a mandate on every citizen but only those who wish to own a car. There are some states that don't require you have car insurance as long as you can prove you have the money to cover any damage your car causes. It's also liability coverage, so it doesn't insure the car owner, it insures any property or person damaged by the owner's car.

A federal mandate requiring every citizen to purchase a for-profit product from private companies or be fined a percentage of their income IS unprecidented.

[ixion]

14. yep. Unprecented... and unconstitutional

by any definition.

[Zynx]

15. Make the specific argument as to how it is.

I am curious as to why this should not just be dismissed on its face.

[ixion]

30. Well, first and foremost, it is unprecedented in the History of the US for the federal government

to mandate the purchase of a over-priced, crappy quasi-product from a private, for-profit corporation.


It's things like that that led the colonies to revolt from the British Empire.

http://en.wikipedia.org/wiki/Stamp_Act_1765

Just because you think it's cool for the federal government to do this, doesn't make it right by any stretch. There is no legal precedent for doing so, and it is effectively taxation without representation.

[Zynx]

33. That's not a constitutional argument.

What specifically makes this unconstitutional? It is taxation with representation. Our representatives voted on it. Also, that by itself is not a constitutional argument. It's a political one even if it did apply.

[ixion]

36. Article One: Section 9

No bill of attainder or ex post facto Law shall be passed.

A bill of attainder is a law by which a person is immediately convicted without trial.

http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Section_9:_Limits_on_Congress


Mandating that we purchase a product or pay a fine is, in essence, a bill of attainder.


Also, there is an arugment to be made with this:

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

A "capitation" is defined as:


–noun
1. a numbering or assessing by the head.
2. a poll tax.
3. a fee or payment of a uniform amount for each person.


The mandate is distinctly a capitation, and therefore unconstitutional.

[Zynx]

39. This isn't a bill of attainder by any stretch of the imagination.

By that standard any fine is a bill of attainder. It is establishing a law that people have to comply with. The punishment for not complying is a fine. This is what laws are. There is nothing unconstitutional about that.

It would be unconstitutional if they said, "If you did not have insurance by June 30, 2009, you have to pay a fine".

The taxation powers of the federal government are nearly unlimited. If you are saying this is basically a tax, that legitimizes it even more. That's not a legitimate argument either.

[ixion]

42. this is not a tax, it is a mandate to purchase a product from a for-profit corporation

or suffer a fine.

That is unprecedented. It is arguably a bill of attainder, and is most definitely a capitation.

It is not cut and dried, and there is a strong argument to be made that it is unconstitutional.

There is also, arguably, a violation of both the 4th and the 10th Amendments in the Bill of Rights

It is an unprecedented move. It deserves appropriate scrutiny, and I personally see a strong case for it being declared unconstitutional.

Of course, the unPATRIOTic Act and the MCA were largely unconstitutional, but that didn't stop them then, sadly.

[Hello_Kitty]

28. Another difference is that car insurance is purely catastrophic

You can't use your car insurance for routine maintenance, a major repair such as new brakes or transmission, or to fix a manufacturing flaw. Health insurance is really more analogous to a warranty than auto insurance. I know of no state that requires you to purchase a warranty for your car.

[Gravel Democrat]

16. When have the feds required the purchase of auto insurance?

Some say the Constitution is the law of the land.

The oath taken by our employees in DC mentions it.

Where is the authority found in the Constitution
for the Federal Government to:

1. Get involved in health care at all
2. Mandate/Force citizens to purchase from private/public for profit companies?

And before you say General Welfare, here's a quote from someone that ought to know:

"With respect to the words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." James Madison in a letter to James Robertson (1831-04-20)
http://en.wikiquote.org/wiki/James_Madison

[dhpgetsit]

40. I see no problem with US (through the government) getting involved with health care.

That falls under promoting general Welfare, just as the DOT, FDA and a ton of other federal agencies. Health care is critical infrastructure just like police and fire protection. I think we (through our government) SHOULD completely take over health care.

But I can't think of any law that requires us to contract with a private company for any reason.

Thinking of the government as somthing in opposition to us and our freedom is what the Right is always trying to promote. Ideally, the government IS US.

[OHdem10]

17. Some draw a line between Government and Business.

Medicare --Government

Insurance Companies--business.

I see a difference betwwn supporting government--Non Profit
and being forced to support a particular industry.Profit industry

[FarLeftFist]

19. But our taxes already are used for private corporations...

i.e. Blackwater, highway and infrastructure are usually contracted to the private sector, federal buildings are built by lowest bidding private construction companies, etc.

[TorchTheWitch]

23. they're TAXES

and those TAXES are controlled by the government in who it goes to and how it's spent. Totally different from requiring every citizen to purchase a product from a for-profit company not through their TAXES but with their own money that is controlled by the company, not the government, and are fined if they don't by the government taking a portion of their income in the form of a federal tax.

Two problems with this constitutionally:

1) The mandate is not a tax. The contract is between the individual and the insurance company, the money for payment goes directly from the individual to the company, and the company decides what it will charge, what it will pay for and what it won't.

2) The "fine" in the form of a tax on only those that do not purchase the mandated product which is taken by the federal government through it's tax collection and tax disciplinary agent the IRS.

[Little Star]

25. Well said! n/t

[McCamy Taylor]

26. Medicare recipients pay (tiny) premiums. You can opt out. No one does.

[OHdem10]

27. Dick Army, says he has tried to opt out of Medicare for years

and is unable to do so. He is a Rwer for what it is worth.

[TorchTheWitch]

29. opt out of paying the tax or receiving the benefit?

Big difference there. If he's a RWer it sounds like he wanted to opt out of paying the tax.

[Zynx]

34. You can't opt out of the tax.

[TexasObserver]

31. As much as I oppose the mandate, it's not likely to be found unconstitutional.

Unless, of course, the GOP justices decide they want to kill it. They'll find a way to kill it or to affirm it, depending upon what these nine justices wish to do, POLITICALLY. The Supremes set policy. Stare decisis is a nice concept, but often ignored or reinvented when the court is ready to shape policy on a new matter.

[hansberrym]

38. Agreed, the court most often protects government power, it rarely upholds individual

freedoms.

A quick reread of Raich (medical marijuana) tells one not to expect a decision upholding individual autonomy over gov power. The 5 most "Liberal" justices and the single most "conservative" justice all went for more gov power. It was Thomas who wrote IMO the most truly liberal opinion, and the one in keeping with the proper scope of gov power.
http://www.law.cornell.edu/supct/html/03-1454.ZS.html



To borrow from CCR...

Harry(Reid) plans a new deal, wrapped in golden chains, still I wonder.... who'll stop the rain.

[TexasObserver]

41. GOP and Dem justices both favor expansion of government for their ideologies.

Neither group really wants to limit the role of government, except when it's something the other side wants to expand government to do.

I can't see the mandate being stricken by a majority of the court, but with the crazies on the right, anything is possible when it comes to a Dem bill and president.

[mmonk]

44. Government's function is not a business and businesses' function

isn't government.