I need precedent for HCR

[Powdered Toast Man]

Arguing with freeper and not sure what to look for, for the constitutionality of HRC mandate

[Oregone]

1. Not sure how to help you

People being forced to engage in commerce and purchase a private product as an individual from a private market? It seems unprecedented.


They are seemingly using the tax code to enforce the behavior, rather than a literal fine sent directly to a person, which eases how exactly extreme this seems

[Powdered Toast Man]

2. If you are not going to help...

then don't waste my time.

[Oregone]

7. Its not a waste of time to provide clarification

The reality is that if you are looking for an exact parallel, I'm am not aware it exists in any fashion.

[Powdered Toast Man]

24. I'm just trying to find the precedent they are using.

I keep hearing that the lawsuits will fail because of numerous precedents, but I'm not hearing specific ones. It doesn't matter however, this one is way too far gone. He doesn't believe believe health care quality has anything to do with life span.

[Oregone]

25. And I don't believe...

"He doesn't believe believe health care quality has anything to do with life span"

I don't 'believe' this reform has anything to do with health care quality. Its an insurance reform, primarily (other than funding of community clinics and some oddball things)

[Powdered Toast Man]

3. If you are not going to help...

then don't waste my time.

[MineralMan]

26. Here's the deal: This is Democratic Underground. It is an open

forum. If you post here, other members of DU may freely post replies as they see fit.

You don't get to decide who may post or whether their replies are relevant to your orignal post.

[ejpoeta]

5. we are forced to have car insurance.... but that is not the same thing.

i don't have to have car insurance if i don't have a car. i don't agree with forcing people to buy into a broken system. most would have insurance if they could afford it. and this idea that it should be linked to employment is so antiquated!! that was fine when we worked at the same place from 18 to retirement, but that isn't the reality anymore.

[FSogol]

8. It is only forcing people that can afford it. The mandate (actually a tax increase)

on the well off uninsured) is to prevent abuse of the system.

[Oregone]

15. The system itself is abusive

And its abusive for the government to force you to engage in commerce with a wasteful, abusive and inefficient industry.

[FSogol]

40. Gotta disagree. If you don't buy health insurance (and are capable of buying it)

then you are taxed at a higher rate to compensate for the expense of your opting out. You don't have to buy insurance if you don't want it. You do realize that the tax payers end up paying for the uninsured, usually at higher rates since the uninsured don't get regular medical screenings and/or preventative care?

I think that one side effect of this bill will be the creation of not-for-profit insurance companies to compete in the state mandated (required) pools for the high risk or self employed. This will drive the costs of buying insurance down.

[Oregone]

44. "You do realize that the tax payers end up paying for the uninsured"

A whopping 8% (estimated)--an amount thats tiny compared to what congress has deemed as permissible for private industry to skim off the top in profits and inefficiencies.


And there isn't a lot of proof that low actuarial valued plans will mitigate this too much. A lot of those people may be heading straight for the hospital with a bill they really can't pay anyway.

[Oregone]

13. I am not forced to buy policies for my children, right, who don't drive?

I am not forced to buy it for myself either, if I choose not to drive.

You are forced to have LIABILITY if you drive on a public road way. Why? Because you can injure or maim people, and before being allowed to issue you license, the state must ensure that every potential person that may hurt someone on that road can also pay to have that person fixed.

Its not a close parallel whatsoever. Auto insurance is about covering others who may be hurt from your activity on government owned infrastructure. If you do not choose to drive on government owned infrastructure, you do not need insurance.

[FSogol]

4. Income tax, building codes, ADA requirements, state car insurance regulations, home-owner's

homeowner's insurance, etc., etc.

Plus it is not really a mandate. If you can afford insurance and don't buy it, you pay a higher tax. It is only fair since the taxpayers are already picking up the cost of the uninsured.

[Motown_Johnny]

6. unprecedented, sorry. The argument is that it falls under Congress's ability to

regulate commerce but never before have private citizens been forced, under threat of penalty from the federal government, to purchase a good or service from a private company.

The best response I am aware of is that this is a conservative idea that was created to help protect the insurance industry from people who would wait until then needed care to get insurance. (assuming the pre-existing condition restrictions are lifted)

I think the language is worded in such a way that it will prove to be constitutional, though I am no expert.

I kinda wish it was unconstitutional. That might force a public option.

[BlooInBloo]

9. No you don't need "precedent"...

1) Nothing will convince the freeper.

2) Rational people come to conclusions based upon articles like this: http://tpmmuckraker.talkingpointsmemo.com/2010/03/could_scotus_be_the_death_panel_for_health-care_reform.php

[Powdered Toast Man]

12. Not true! I educated one yesterday.

He felt very stupid once I explained how it worked, and was very appreciative.

[BlooInBloo]

14. Sorry, but no you didn't. Ask him again in a week.

[Oregone]

17. LOL

[Powdered Toast Man]

20. Nope... I'm going to stay positive.

You negative nelly!

[BlooInBloo]

23. (sigh) Hear me now... believe me later....

:P

[Heidi]

56. !

:rofl:

[Emit]

36. lol!

:thumbsup:

:rofl:

[Ozymanithrax]

10. Militia Act of 1792

It is covered at DU here: (http://demopedia.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8005170)

In brief:

Militia Act of 1792

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

This material was not provided by the government. A member was required to "provide himself" with the necessary material. That meant they needed to purchase that material from private business.

Damn that Geroge Washington for setting up a mandate to buy something from private businesses.

[Bobbie Jo]

21. Yes, more here:

http://thinkprogress.org/2010/03/23/cuccinelli-washington/

[Oregone]

29. LOL

Thats actually hilarious. You gotta go that far back, to those conditions, to find a precedent? :)

And a funny one too, sorta. Did that one make its way through the courts at all? :)

[Winterblues]

It only applies to a select few just as having to buy a helmet to ride a motorcycle

or seatbelts to have a car or insurance for a car. It only applies if you use the object. Not everyone will have to purchase Health Insurance either. Most will still have it provided by their employer and for some that is the Government..:shrug: We are forced to pay for social security and medicare even if we die before using it..Mush of our tax dollars goes directly to Private Contractors that build our highways and feed our troops and etc. etc. The Government does have the right to demand citizens pay for services even if those services are mandated.

[Heidi]

11. It advances the general welfare,

a concern that has been upheld on many occasions by the US Supreme Court.

[Motown_Johnny]

16. they have the power to collect money to promote the general welfare, not the power

to make you spend your money with a private company

Unless this new, unprecedented, effort is upheld in the courts.

[Ozymanithrax]

27. General Wellfare is the basis for Social Security, Medicare, Medicaid...

and the various Welfare legislations.

If the SCOTUS determines the General Welfare Clause does not support this, then the precedent will be used to go after Social Security, Medicare, Medicaid and other progressive legislation. Conservatives have tried it before and it is their wetdream to limit that power.

[Motown_Johnny]

30. nope... those are supported by taxes the Federal Government collects. We are not

forced to buy anything from private companies for any of those things.

Nobody is claiming that this is protected under section 7, they are trying to use section 8

(you are trying to use article 1 section 7, just fyi)

[Oregone]

33. Its a good point

You know, if the government was collect ALL funds for the insurance, and then sub out the policies to the private insurers, you can make the case, but thats not what is happening here. Only some people will be subsidized, and many of them partially. There will be a direct forced private transaction between individuals and private companies under this law.

[Oregone]

31. Those programs stand on their own merits and would be strengthened through a challenge

Big deal. "Bring it on".


As for a contradictory, forced capitalistic solution, subsidized with public funds, its not a clear case at all.

[Oregone]

19. Heh, maybe

:)

Thats yet to be seen. Low actuarial policies may do nothing of the sort, the subsidies may drain the treasury, and the increased demand may pressure a price rise (impacting every aspect of the economy).


The is a technocratic experiment, that is unproven. So...we shall see.

[DatManFromNawlins]

28. Uh, no.

Just because a bill passes muster of a few parts of the Constitution doesn't mean it is constitutional. The Supreme court has time and time again struck down laws which tried to use the commerce clause to regulate activities which could not be considered commerce. One of the most important tests being to determine whether or not the class being regulated is actually engaged in commerce.

They are trying to regulate commerce by forcing people (who are not engaged in commerce) to buy a product from private companies. This is not the same as creating a national healthcare system, or creating a single payer system.

[Heidi]

32. Are you saying that regular folks like me are not engaged in commerce?

Huh. That's an interesting take on me selling my abilities (dependent to a large degree on my health) for a wage to a buyer.

[Oregone]

34. Many regular folks are not engaged in commerce with the insurance industry

This forces them to be. It doesn't just seek to "regulate commerce", but first force it into existence among two or more private parties.

[Heidi]

37. The general welfare is a principle upheld by the Supremes on many occasions.

I have no crystal ball, nor do you, but if I were a bettin' person, I'd bet that this is the principle on which the health insurance mandate will be affirmed. I don't wanna fight with you. None of us know how this whole thing will wash out.

[Oregone]

39. Yeah, and thats a pretty arbitrary claim

You can do *anything* and claim it promotes the general welfare according to your standard.

[Heidi]

41. Like I said, I don't want to fight with you.

It'll all wash out. The US is certainly not the first country that has faced health insurance mandates. It's not the end of the world.

[Oregone]

42. Perhaps it is into a system this unfair

Normally they apply to more egalitarian, as well as cheaper, systems.

[Gravel Democrat]

48. James Madison said this regarding the "General Welfare"

"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."
http://quotes.liberty-tree.ca/quotes_by/james+madison

It seems American history isn't a priority for schools anymore.

And to use the "Commerce Clause" to initiate commerce is as disgusting as it gets.

Commerce Claws! If this precedent stands, think of how much fun the (R)s will have with it.

The Constitution protects us hapless Citizens from the excesses of all parties.

At least it used to.

[Oregone]

49. Thnx

[TexasObserver]

50. James Madison's opinion is irrelevant. He's not on the Supreme Court.

As for your aversion to the use of the Commerce Clause, it's the bedrock of all the anti discrimination laws.

You do not want to acknowledge the simple truth: the constitution means whatever five sitting justices say it means, and they have multiple paths by which they can justify whatever they do.

You seem to believe your reading of Madison somehow impacts all this. Just because he was the primary writer of the constitution doesn't make his opinion of it the one that matters. Quotes from Jefferson, Washington or Lincoln don't matter, either. They are not voting on the decision.

The Supreme Court is a political body, setting policy through interpretation of law.

[Gravel Democrat]

52. If you think Madison's opinion is irrelevant you are an example

As for your aversion to the use of the Commerce Clause, it's the bedrock of all the anti discrimination laws.

Real Americans would have drawn up an Amendment. Chickenshit lawmakers took the easy way out and lo and behold it's being expanded like Oprahs waistline. I suppose you loved it when the Commerce Claws was used to legitimize the drug war.

You do not want to acknowledge the simple truth: the constitution means whatever five sitting justices say it means, and they have multiple paths by which they can justify whatever they do.

That may be your truth, but that is not my truth. The constitution means what it says, and it's written in plain english. Do you believe blacks are 2/3 human?

just because he was the primary writer of the constitution doesn't make his opinion of it the one that matters.
:rofl:

[TexasObserver]

54. Your ignorance about constitutional history and law is your problem.

The constitution has been amended many times, and as those amendments are interpreted, it is clear that the constitution Madison penned is in the distant past. You unwittingly have admitted that by your allusion to the status of slaves under the original constitution.

If you actually KNEW the original constitution well, if you weren't simply some guy with Federalist Society talking points, if you actually knew anything about constitutional history and law, you'd know that is was 3/5 of a human (for purposes of the US census and the representations based upon it), not 2/3, as you stated.

Unlike you, I have a degree in History. Unlike you, I have a doctorate in law. Unlike you, I've read and understand the important Supreme Court decisions the past 220 years. Unlike you, I've read and understand the Federalist Papers.

You're like many who only know that Glenn Beck smidgen of knowledge. Class is dismissed. Come back when you're prepared.

[Heidi]

55. You just stop right there, Mr. TexasObserver! James Madison isn't on the Supreme Court????

Git OUTta here!

:rofl:

[TexasObserver]

57. Yes, and he was the DEFENDANT in the case which established JUDICIAL REVIEW.

A case called Marbury v. Madison.

It's amazing how many of the "constitutional law" fans don't know that Madison was the defendant who lost in the case which John Marshall used to establish the standard of judicial review for constitutionality.

I have great respect for Madison, but anyone attempting to use his words to determine what the current US Supreme Court will do should instead read what they have done, from their theft of the presidency in 2000 to their more recent destruction of campaign finance controls.

The founding fathers lived in the world in which blacks were slaves, only landowners voted, and only men voted. THAT is who the founding fathers really were. They didn't think up the Bill of Rights. The BOR came about because the equivalent of the DU wing of America created and insisted upon passage of the Bill of Rights as part of a new constitution. Those rabble rousers were the real founders of our personal and civil rights.

The impetus for the new constitution was the unworkability of the Articles of Confederation, which was the law of the land for the first six plus years after independence was won. It was a document designed to give us a stronger central government which could deal with border disputes, trade issues, and create a central banking system. It was to vest more power in the central government.

It was not the founding fathers who guaranteed freedom of speech, of religion, of press, or to keep and bear arms. It was the people who feared those founding fathers, and insisted upon the addition of those ten amendments as part of the new constitutional package.

[TexasObserver]

51. Yes, the Supreme Court can do *anything* and claim it promotes the general welfare.

It's not her standard. It's THE standard.

Yes, it can be used to justify just about anything. The Supreme Court and its decisions define what can be used to create federal jurisdiction and justify legislation.

The people who claim the act is unconstitutional are not authorities on constitutionality. You'll see a lot teabaggers, a lot of Fox Noise people, a lot of GOP politicians saying it is, but not those who know the first thing about constitutionality.

[Cleita]

18. Medicare and Social Security. Both are social programs that have

worked out and are popular in spite of all the efforts Republicans have made and are making to destroy them.

[Oregone]

22. How do government programs compare to forcing people into the private market...

to make purchases as individuals?

One is socialism for the general welfare and the other is forced capitalism, subsidized with public funds.

[Cleita]

35. I agree with you there. This is why we need Medicare to be part of the

exchange so poor people have a choice of what they are going to buy. Actually, I think this is going to be the first thing knocked out of the program in future fixes because it's really unworkable. I really believe it was put into the bill to get it passed and now that it is law, it will probably be removed rather quickly.

[justanaverageguy]

38. I think that it's a violation of my 4th amendment protection

against unreasonable search and seizure. It's completely unreasonable for the I.R.S. to seize me or my property for failure to pay a tax penalty placed on me for the sole reason that I exercised the liberty of choice to not purchase a product/service that I neither desire or need from another private citizen.

and yes that is completely different from failing to pay taxes to support a government funded program that I neither need or support.

[WeekendWarrior]

43. Under the law it's a tax.

[muriel_volestrangler]

53. And similarly, donations to charities decrease your tax bill

just as holding an insurance policy will mean you don't have to pay this tax. I think it will pass the constitutional test.

[harun]

45. HCR isn't a court case, or a court ruling. It is legislation. Constitutional

bases of Congress being able to do it:

http://en.wikipedia.org/wiki/Helvering_v._Davis

Of course your freeper will find this legislating from the bench, so it won't help you much. You need to start with the real problem with said freeper. That problem being your freeper probably thinks we can roll back the clock to 1780. Remind your freeper we have a country now of > 300 million people and managing that group to keep the most people from going through hardships requires giving up some freedoms to the Federal gov't to regulate the Nation as a whole for the greater good. If that doesn't work remind him there are third world countries around the globe with hoards of starving poor people that will afford him the freedom he wishes and he can move there and tell us about how that works out for him/her.

[TexasObserver]

46. Why don't you list all your arguments against this freeper?

Once we see what you're arguing, we can better help you.

In a nutshell, there is ample case law to support the health care act, but that doesn't mean the current Supreme Court majority will honor precedent. It is an academic discussion that ultimately means nothing.

The five man troglodyte majority on the court doesn't respect precedent. They'll do whatever they want, and explain it away however they want. They may find the law passes constitutional muster, or they may not. It comes down to five votes, and those five votes decide what is or is not constitutional.

[B Calm]

47. Ask him for the constitutionality of a President who lied us into war!