In light of the state's suing, a question for DU'ers in law...

[newtothegame]

The other parts of the bill aside, is the mandate indeed unconstitutional? Is there a case? DU law experts?

[grantcart]

1. not a lawyer but the AGs have a big problem with standing before they

can even argue the case.

Mandates don't take effect until 2014 and might be changed before then. Traditionally the SC does not take on big issues until they can point to an actual case that actually harmed someone, not on principle that it might in the future be a harm.

[laughingliberal]

3. I was listening to one this morning that was arguing on the basis of a mandated extension of

Medicaid. I don't expect the law to be found unconstitutional but I am wondering about the extension of Medicaid (which, btw, is one part of the bill I thought was good). From what I've heard states participate in Medicaid voluntarily and I don't know if the law changes that. Our governor has been talking about doing away with it for months, now.

[DemocratSinceBirth]

4. You Are Right

But it goes beyond that. They don't have standing before the bill becomes law and then an action needs to be brought by an individual who was actually affected by it. Then the AG can represent him.

[grantcart]

10. Actually the AG can only bring action if the state is harmed

If it is an individual that is harmed then they would have to get their own attorney.

The AG's will be arguing that the states can mandate care but the FG cannot.

Again no real action no real harm and no standing.

[Xithras]

9. It really depends on which argument they use against it.

The bill requires that the exchanges be set up and run by the states at the state level, and orders the states to develop and implement funding mechanisms to make the programs revenue neutral.

If the AG's are arguing against the bill on 10th Amendment grounds, then the states themselves are parties to the suit and have immediate standing. If they specifically target the constitutionality of the mandates on citizens, then you are correct that they will not have standing.

[grantcart]

11. Again wouldn't they have standing 'after' the exchanges come into actual

effect and not before?

[Xithras]

12. No.

The bill establishes a date by which they have to establish the exchanges, but there's nothing stopping them from doing so now, and the logistics of establishing and staffing the new agencies, implementing the new state laws to create a new taxing/fee system to fund them, and then negotiating the rates with the insurance companies, pretty much requires them to start immediately. The states must have their exchanges in place four years from now, but the need to start the process to develop them is immediate. Thet gives the states immediate standing.

[laughingliberal]

I'm not a law expert but I would be surprised if the law was found unconstitutional

The government has managed to show an effect on Interstate Commerce in some areas that no one would really, at first glance, think there was an effect. If nothing else, it can be argued people traveling to other states could wind up in hospitals there and show an effect on interstate commerce.

[louis-t]

2. Not in law, but I doubt it. Where's Magistrate?

If it is, remove that part. That would infuriate the insurance companies. By the way, anyone notice the insurance stocks going up?

[DCBob]

5. Here's a good article discussing the legal issue by Ezra Klein..

http://voices.washingtonpost.com/ezra-klein/2010/03/is_there_a_legal_case_against.html?hpid=topnews

[hlthe2b]

6. Federal Law is the law of the land... this is all grandstanding

Taxation is the purview of the Federal Government and whether you like the bill or not, the mandate is essential a Federal tax penalty on those who do not purchase health insurance.

[Xithras]

7. The mandate isn't. The penalty is.

I dropped out of law school far too early to claim expertise, and we have several lawyers here who I hope will chime in, but the issue here is really simple.

Under the Constitution, as originally written, the federal government had no authority to tax. None, nada, zilch. As originally created, the federal government was entirely dependent on funds provided by the states. The 16th Amendment granted the federal government the power to tax, levy fees, etc, but the scope of that taxation was limited to income. The federal government cannot levy income taxes, sales taxes, or any sort of other taxes without first justifying it as some sort of income tax (and, yes, there have been some real legal stretches to accomplish that in the past, but the justification has always occurred).

The problem here lies in trying to determine how the annual penalty can be justified as an income tax. The bill had no provisions explaining how it qualified as an income tax, and it is a tax that is only applied when a product is not purchased. It's hard to see how they're going to get the Supreme Court to agree that it's a legitimate tax.

[kywildcat]

8. Not a lawyer, but wondering if constituents

in cash strapped states are willing to foot the bill for this crapola-because it does come down to their pocket books.

[HiFructosePronSyrup]

13. I don't know what part of the Constitution would specfically forbid it.

I suppose like many cases there will be interesting and valid arguments on either side.

Even if it is unconstitutional, the SC would just strike out the mandate clause and leave all the good stuff the law of the land.