Making TRAKS: Why the Supreme Court will Probably Kill HCR because of the Individual Mandate

[Rage Inc.]

I don't like this any more than you do. But c'mon, don't even try to say that Thomas, Roberts, Alito, Kennedy, and Scalia (the REAL boss) aren't salivating over the opportunity to pontificate about "liberty," "tyranny," "coercion of purchase," UNCONSTITUTIONALITY!

Switch Alito & Roberts for O'Connor & Rehnquist and the Florida Recount is blooming anew!

[BootinUp]

1. I haven't seen any substantive legal analysis that

gives them the chance, have you?

[Gravel Democrat]

10. A search will turn up many

That concentrate on the Commerce Clause justification that the Speaker uses.

The Individual Mandate: An Unconstitutional Exercise of Congressional Power
By Sheldon H. Laskin
Submitted by davidswanson on Sun, 2009-12-20 02:21

"...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....

...Unlike the states, Congress cannot enact any law even if doing so would foster public safety and health. Under our federal system of government, Congress can only enact laws that are of a type authorized by a provision of Article I of the Constitution, which sets forth the powers of Congress. Proponents of the individual mandate typically cite the Commerce Clause of the Constitution as granting Congress the authority to require individual Americans to purchase health insurance.

Article I, Section 8 of the Constitution grants Congress the power “o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Therefore, in order for Congress to have the authority to require Americans to purchase health insurance, the purchase of health insurance must constitute “commerce” within the meaning of the Commerce Clause. It does not....

---------------more----------------
http://www.afterdowningstreet.org/node/48553

http://www.cato-at-liberty.org/2010/03/23/individual-mandate-is-constitutional-if-you-rewrite-the-constitution/

Much more that I don't have time to post now

Statements by Democrats regarding the mandate are available at cnsnews.com
like this: 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

[BootinUp]

11. The ones you posted smell like BS. nt

[Gravel Democrat]

12. Thanks for your concise analysis. Very helpful. n/t

[Rage Inc.]

14. No, but what does THAT matter?

Don't you get it? These wingers MAKE IT UP AS THEY GO ALONG! In 2000, SCOTUS ruled 7-2 that Florida's mechanism for recounting votes was invalid, but Ginzburg and Breyer found that it could be corrected in time to yield an accurate result. But the Fab Five of that time---including Kennedy---said, "SORRY! THE CLOCK HAS RUN OUT!"

As a result, we have a whole new PSTD generation!

[Aramchek]

2. bullshit OP

[movonne]

8. +1

[pnwmom]

3. Kennedy isn't one of them. n/t

[notadmblnd]

4. a mandate with no penalty or fines is not a mandate.

[David__77]

5. What mandate? Isn't it a tax?

I don't understand how it is a mandate. No one will be criminally penalized for not getting health insurance, or am I missing something?

[Riftaxe]

7. Absolutely, the IRS never enforces tax evasion laws (nt)

[David__77]

9. Well that's about tax evasion not about mandatory health care.

I don't want to fund the wars against Iraq and Afghanistan, but I still have to pay my taxes. People pay taxes for all kinds of reasons and this is the sovereign authority of the state to impose them.

[DearAbby]

6. What Mandate?

A toothless mandate without criminal or civil penalties. Isn't really a mandate.

[cherokeeprogressive]

20. In that case, here's how I'll save money on health insurance:

I'm going to drop my current coverage. Then I'm going to adjust my federal withholding so I make sure I have no return coming at tax time.

So there's a fine, which isn't recoverable other than through withholding part of my federal refund? Since I won't be getting a federal refund, there won't be anything to withhold. No problem there.

I will go on that way until I get the dreaded bad diagnosis or fall down go boom. Then, since no one can deny me coverage due to a pre-existing condition, I'll buy health insurance when and only when I need it.

Since it's a "toothless mandate without criminal or civil penalties", and thus not really a mandate at all, I see no problem with doing that.

And, I bet I won't be alone.

[DearAbby]

22. Your choice

Isnt freedom wonderful?


There wont be 16,000 IRS agents hunting you down, no one taking it out of your bank account...None of the horror stories the Right wing has been saying will happen.

Most people are already complying, because most people want to be covered. The whole idea was to get coverage, to stop the abuses. I admit this isnt perfect. It will need to be tweaked over time.

BUT YOU NEED A GOD DAMN LAW TO TWEAK...you can't TWEAK SOMETHING THAT DOESN'T EXIST.

[theophilus]

13. Well, then....I guess it's off to Medicare for All with HCR then! What a surprise! n/t

[ncteechur]

15. Even if they were to say that the mandate is unconstitutional (which I don't think they will)

it wouldn't mean the entire law is unconstitutional

[Rage Inc.]

16. You STILL Don't Get It!

:banghead:

[ElsewheresDaughter]

17. Love the TRAKS!....I got it.....

you're brilliant

[Rage Inc.]

19. Let She that Hath Understanding Reckon!!!

:yourock:

[MadHound]

18. The Corporate Court, denying their Corporate Masters the gift of a mandated monopoly?

Not happening. This is, after all, the same court that gave non-living entities supra-citizen rights.

[Nederland]

21. If I recall a lot of the discussion here

A great number of DUers would agree with them. I seem to remember a fair number of people pissed off at the mandate portion of the bill.