The individual mandate is easily Constitutional. You can explain it to anyone in 3 seconds.

[BzaDem]

The Necessary and Proper clause says the following:

"The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The individual mandate is not just necessary for banning discrimination on the basis of pre-existing conditions. It is absolutely necessary for banning discrimination to work. Otherwise, no rational person would buy health insurance until after they get sick, and premiums would rise to several thousands PER MONTH. No actual healthcare economist that I am aware of believes that banning discrimination on the basis of pre-existing conditions is possible without a mandate.

Since the Individual mandate is necessary to ban discrimination on the basis of pre-existing conditions, and banning discrimination on the basis of pre-existing conditions is a regulation undisputedly in Congress' power to enact, the individual mandate is Constitutional under the necessary and proper clause. That's it. The end.

How did the judge today deal with this? He didn't. Whoops. He just ignored the point, even though it was the easiest argument for the constitutionality of the bill. (That's probably why he ignored it -- he had no defense to it.) Even right wing judicial hacks are mocking that analysis. This decision is going to be reversed REGARDLESS of the ultimate outcome of the mandate.

For those who want the whole bill struck down, sorry about that. I wouldn't get your hopes up.

[ThePhilosopher04]

1. Miserable Fail

The federal government, state government, or any level of government, can't force someone to purchase a product from a private entity, period.

[BzaDem]

2. Do you have ANY evidence to back up your assertion? Because it is blatently false.

Your state can force you to buy apples every day if it wanted to, and even conservatives don't dispute it.

Just because you don't like something doesn't mean they can't do it to you whether you like it or not.

[WyLoochka]

3. We are all forced by government

state governments to buy auto insurance from private entities. And we don't get to wait until after we have an accident to buy it.

[derby378]

5. That's because driving is considered a PRIVILEGE, not a RIGHT

I know it sucks, but it's true. I don't have to buy auto insurance, but then again, I can either walk, bike, or use public transportation. Or I can ride a horse, which can be problematic in many cities.

[LanternWaste]

12. hat then is the case precedent for that particular distinction?

So government can force one to purchase a commodity that is based on privilege, but not a commodity predicated on a right, yes?

What then is the case precedent for that particular distinction?

[WinkyDink]

23. Why don't you do your own research?

[Bandit]

66. Health Insurance is also considered a privilege and not a Right

If ONLY the USA would consider Health Care a Right America would be a much better country.

[BuelahWitch]

6. Not if you don't have a car

[BzaDem]

8. They could absolutely force you to buy auto insurance EVEN IF you didn't have a car! There is

nothing in the Constitution that prohibits it. Nothing.

This issue is over what the federal government has the power to do (and rest assured the federal government easily has the power to institute a health insurance mandate). But no one knowledgeable about the law is even CONTESTING the right of a state to do it. That's what you seem to be missing.

[WinkyDink]

21. Oh, please. Nothing prohibits making citizens walk naked, but guess what? IT DOESN'T NEED TO.

The law does not permit the INFINITE---INFINITE---list of possibilities.

Gee, the Constitution doesn't PROHIBIT the Federal govt from making kids eat lima beans, so hey! They can force kids to!

FAIL.

[Statistical]

31. False and show a complete failure in understanding the Constitution.

The constitution breaks everything into three classes of powers

DELEGATED POWERS (ENUMERATED POWERS) - powers specifically granted to the federal govt.
PROHIBITED POWERS - Powers prohibited by both federal and state govt.
RESERVED POWERS - Everything else is reserved by the people and the states.

[BzaDem]

36. Statistical, I am talking about STATES. Obviously the Federal government couldn't order you to do

anything they wanted. But states can. Do you maintain that a STATE cannot order you to buy car insurance even if you don't have a car?

[Statistical]

40. Depends on the state Constitution.

The federal Constitution simply reserves powers not prohibited or delegated to the feds to "the people and the states".

The defining line between rights of the people and powers of the state is set by State Constitution.* There is significant lattitude among State Constitutions however they all tend to be rather conservative (small "c"). I can't say definitively that no state could.


*One exception would be things the federal Constitution makes a prohibited power (power to search without warrants, power to supress the press, etc) which are always retained by the people, well at least in theory.

[BzaDem]

43. But the point is, the state has the power. What levers the need to pull to use that power may vary.

They might very well have to change the state Constitution, though that's relatively easy in many states. But the point is if a state wants to pass a law, it generally can.

Obviously it cannot violate a separate provision of the federal Constitution. They can't ban free speech.

But we aren't talking about that. We are talking about the power for a state as a unit to mandate people buy things. And they do have that power, just like they have the power to enact huge numbers of dumb laws (and frequently do). That's why I said there's no federal Constitutional right not to be forced to purchase a product. So states can generally do it.

The federal government is a whole different question, though I think my OP is the easiest resolution to that question.

[Statistical]

55. No the state (or federal govt) only has the power if granted by the Constitution (state or federal)

The federal govt could have the power too if the Constitution at the federal level was amended.

You calmly state:
"they might very well have to change the state Constitution, though that's relatively easy in many states."

TADAAAA. The same could be done at the federal level too. The process of amending the Constitution is what transferes a reserve power from the people to the govt (state or federal). If it requires the Constitution to be amended then the state doesn't currently have that power. If the people don't want to part with that power (object to the state having that power) then they should fight it in the amendment process. While some states have easily amended Constitutions which are nearly worthless at protecting the people's interest (CA for example) most states adopted amending processes which are very similar to the federal process.

"We are talking about the power for a state as a unit to mandate people buy things. And they do have that power,"

False. Once again painting with a broad brush. While that may be true in some states it is hardly true in all or even most states.'

[BzaDem]

67. But many states don't even HAVE enumerated power schemes.

Many states start by giving the state legislature plenary power, and then list things it can't do. Not the other way around, like the federal government. I would be interested in hearing about a single state that would ban such a law in their Constitution. (Not because I don't believe one exists, just because I'm interested.)

"The same could be done at the federal level too."

They are not even remotely comparable. Many state Constitutions can be changed with the same popular vote system they use to elect the governor. We can only change if a super majority of our representatives agree, and then a super-super-majority of states agree. That directly affects the potential universe of amendments that even have a chance of being enacted. Enacting a state constitutional amendment is often little different than enacting a ballot proposition.

[WinkyDink]

20. Excuse me, but "we" is limited to the sub-set of citizens known as "automobile owners." FAIL.

[dflprincess]

41. They you require you buy liability insurance - to protect others from you.

A lender may require you have full coverage on your car - but in that case they are only protecting their investment from any damage you may do.

[sabrina 1]

76. That argument has been debunked so often it's getting boring

seeing it every time people stand up against this Republican idea.

You don't have to buy a car, but you cannot get rid of your body. Just being human is NOT a legal reason why you be forced to buy a shoddy product from a corrupt corporation.

Everywhere this is challenged, it will most likely succeed.

[LanternWaste]

11. You can of course cite case precedent to validate this, yes?

You can of course cite case precedent to validate this, yes?

[derby378]

22. We don't need no stinkin' case precedent

Just read the Constitution, already. That "necessary and proper" clause is not some glorified Norsefire "Plan B."

[jpgray]

4. It's still a bad idea. Candidate Obama, you want to field this one?

“If a mandate was a solution, we could try that to solve homelessness by mandating everybody buy a house."

[Lucky 13]

32. I love it when the Obama's debate!! Though I much prefer candidate Obama.

He's less apt to spout republican talking points...

... or call me names.


Sigh. Where is candidate Obama? I miss that guy.

[derby378]

7. The Bill of Rights was enacted partially because of that little clause

The "necessary and proper" clause enables the government to do things such as establish NASA, regulate food and drugs for safety and purity, construct an interstate highway system, etc. - NOT to violate our Constitutional rights whenever Congress bloody well chooses to do so.

[BzaDem]

9. Except you have absolutely no Constitutional right to not be forced to buy a product. None.

If you think otherwise, please list where the right comes from (someplace else than your opinion).

[The Straight Story]

10. Can they force you to buy a bible? A gun? A car? A house?

A yes or no will do.

[derby378]

15. Woo-hoo! Machine guns for everybody!

I'll happily take an Uzi, since I have experience with shooting one, but if we get FOPA repealed, I'll be happy with a P90 bullpup. :evilgrin:

[The Straight Story]

16. I keep waiting on them to force me to buy one, since some think they can

I am guessing same person would suddenly not think they can when it is a bible, or smokes, or guns. ;)

And if we HAVE to buy a gun, can we at least get ammo stamps for the poor so they have ammo too? :rofl:

[derby378]

18. I like the way you think

I still remember those S&H Green Stamps that cashiers dialed out to my mom at the supermarket when we were kids. A similar setup for bullets and shotgun shells might be just the ticket.

[BuelahWitch]

19. If Flip Wilson were still alive would Geraldine's line change to

"The Government made me buy this dress!"?

[BzaDem]

37. A state can force you to buy a gun, car, and a House. A bible might give you a freedom of religion

problem, but that's about it.

The federal government? No. But states? Yes.

[Lydia Leftcoast]

45. And which states have done so?

I don't recall any states with compulsory gun ownership, compulsory car ownership, or compulsory house ownership.

[BzaDem]

48. Oh, none. I'm not saying they have done so. I'm just disputing the idea that they can't.

If you think they can't, you have to outline an actual legal reason why they can't, and so far no one has.

[girl gone mad]

13. The government has no right to force you to enter into commerce with a private entity.

This was clear overreach on the part of Congress.

[BzaDem]

38. That's not true in the slightest. Do you have anything to back your assertion up? n/t

[derby378]

14. Serve the Computer. The Computer is your friend.

If you doubt the sincerity of the Computer, you may be used as reactor shielding.

And yes, I appeal to the Ninth and Tenth Amendments. Your move.

[Xithras]

17. Uh. Yes you do. It's right in the Bill of Rights.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." - Amendment 10

In other words, the Federal government may operate only according to the rules and rights explicitly defined within the Constitution itself. Congress cannot arbitrarily pass ANY laws regulating individuals unless they can derive that law from a power defined in the Constitution.

That's why the Commerce Clause argument is so important. The Constitution grants the federal government the right to regulate commerce that crosses state lines. Congress declared that health care is an interstate transaction, and therefore federally regulatable. The courts get to decide whether that argument is legitimately applicable. While Congress indisputably has the right to regulate the health care companies themselves, does that right extend to the ability to regulate the behaviors of individuals who are not actually participating in that commerce? The administration is suggesting that they do, following the Wickard v. Filburn decision, but Wickard/Filburn had to do with the production of goods, which is not occurring in this case. The HCR mandate broke new ground and pushed the boundaries of the Commerce Clause, so the courts get to decide whether it's a constitutionally allowable expansion of their powers.

[BzaDem]

39. Just because the Constitution doesn't say "Congress has the power to mandate things" doesn't mean

Congress can't mandate things under an existing enumerated power with the necessary and proper clause. Congress has power to force insurance companies to accept people regardless of pre-existing conditions. (That is essentially undisputed). The mandate is necessary for that regualtion to work. (Again, essentially barely disputed among healthcare economists.) That's all there is to it -- the mandate is Constitutional under the necessary and proper clause, even if the commerce clause SPECIFICALLY said that it didn't cover inactivity.

The power for the mandate doesn't come from the commerce clause. It comes from the necessary and proper clause. If there were no necessary and proper clause, then you might have a point. But there is such a clause.

[Xithras]

52. You're making a big leap of logic.

Congress has the ability to regulate the interstate sales of health insurance via the Commerce Clause. Congress has the ability to pass other peripheral laws relating to the sales of health insurance via the Necessary and Proper Clause. No real dispute there.

But, in order for Congress to expand their regulation, they have to show a connection. If there is no sale, there is no connection. If there is no COMMERCE based connection between me and a Federally regulatable industry, upon what OTHER constitutionally vested power do you base your application of the Necessary and Proper Clause? The anti-Federalists lost this argument 200 years ago, and American jurisprudence has largely held that it cannot be applied willy-nilly to any subject that Congress is interested in regulating.

The HC Mandate advocates often lie to the public and try to claim that everyone who isn't covered is a drain to the system. That's untrue, and many Americans seek medical care today on a cash basis, pay their bills, and impose no burden on the taxpayers. Upon what Constitutional basis will you apply the Elastic Clause to dictate that such people be forced to purchase insurance they neither want or need?

Congress has the power to pass nearly unlimited regulation of the insurance companies using the two clauses. Congress does not have the right to pass unlimited regulation on individuals using those clauses, unless there is a clear connection between them AND a regulated industry. If you're not engaging that industry in any way, it's a huge leap to simply assume there is a regulatable connection.

[BzaDem]

68. "But, in order for Congress to expand their regulation, they have to show a connection." False.

"American jurisprudence has largely held that it cannot be applied willy-nilly to any subject that Congress is interested in regulating."

Again, false. See McCulloch vs. Maryland by John Marshall himself. You are actually on the losing side of that case over two hundred years ago. There is no power that allows Congress to charter a bank. But it is allowed under the necessary and proper clause, and that seminal case (along with modern cases) basically agree that as long as a law is actually rationally related to an enumerated power and doesn't violate an independent Constitutional provision, Congress can enact it.

"Congress does not have the right to pass unlimited regulation on individuals using those clauses, unless there is a clear connection between them AND a regulated industry."

Again, that is patently false under the necessary and proper clause. Sure, you may need a connection if you are regulating under the COMMERCE clause. But there is absolutely no need for a connection if you are regulating under the necessary and proper clause. The necessary and proper clause does NOT say that "Congress shall have the power to make all laws necessary and proper to laws passed under enumerated powers, UNLESS there's no commercial transaction."

The mandate is clearly necessary to the insurance regulation (your incorrect policy argument rejected by basically all healthcare economists notwithstanding). That's the end of the analysis. No connection to a transaction required.

[sweetapogee]

58. Have you

ever considered offering your services as a constitutional authority to the Obama administration?

Not to be a pain or anything but one of the things that troubles me about the current debate is that we are talking about mandating the purchase of HEALTH INSURANCE, not HEALTH CARE. The problem isn't the availability or the delivery of the service it is the financing of the service. Modern health care is a service. It is hard to imagine that the federal government could force a person to purchase the means to finance a service that it cannot force the person to consume. Once you answer that question another comes to mind.

Medicare as currently configured, depends mainly on private service providers accepting a number of medicare patients knowing that the payment is lower than that of private insurance patients and balancing the two out. I have not seen an argument (not saying there isn't one) that gives the conditions where everyone is on an insurance program like medicare which allows for the continuation of private health service providers. Without that continuation, my biggest question would be how over the long term does the government (local/state/federal) finance and retain the actual providers of the service? One of the key ingredients of the current HCR package is the promise that individual consumers will retain the right to keep the provider of their choice. From a constitutional perspective, how does the government force an individual to train for a profession in the medical field and stay current with all of the continuing education required to remain in the field? How would the government pay for the purchase of all the capitol equipment necessary to provide the service?

So, I think to answer the question in most minds as to why the current HCR package has a reliance on the existing private health care infrastructure is because the cost of acquiring a government owned infrastructure would simply be unacceptable to the public at this time. This is a hugh problem that the current HCR package doesn't address. What is needed is a discussion as to the how we will resolve this issue. Even if every last private health insurance company in the country gives it's assets to the government, it still doesn't answer the question of how the government acquires the infrastructure and or finances the continued operation of the industry.

If individual states decide to provide it's people with health insurance I suppose each state would have to decide if the vehicle of financing the insurance meets the constitutional requirements of that particular state.

Perhaps I think too deeply into things, that is a real possibility. My questions come from a legal perspective, not a practical or needs based perspective and is not intended to re-hash the already established need to reform the industry. I cannot help but think that the reason the Obama administration took the route it did was it felt that it would give the best chance of approval, not workability.

[WinkyDink]

24. Are you daft? INFINITUDE cannot be imputed to either the Constitution OR the Federal Government.

The U.S. Constitution LIMITS the powers of the Federal government. ANYTHING not listed is the province of the state OR THE PEOPLE. IT'S CALLED THE 10TH AMENDMENT.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

IT'S THE LISTED "DELEGATED" POWERS THAT THE FEDS HAVE, NOT THE UNLISTED.
GOT THAT FINALLY?

[Abq_Sarah]

54. Actually

There is no provision in the Constitution that would allow the fed to force you to purchase a product from a private company.

None.

The necessary and proper clause allows the government to carry out the duties specified in the Constitution, not make up shit as they go along.

[Dark]

25. The commerce clause and general welfare clause also make it perfectly constitutional

nt

[WinkyDink]

26. The Tenth Amendment would beg to differ.

[Dark]

44. No, it wouldn't. The 10th applies ONLY to things that the constitution did not cover.

Commerce clause is a nice carte blanche for Congress to do whatever they want to the economy, as long as they do it to several states. The General welfare clause is similar, allowing them to collect and distribute money to "promote the general welfare."

The 10th amendment specifically states that only powers not given to the feds in the constitution are delegated to the states. The constitution gives the federal government the power to regulate and tax any commerce that occurs between states. Health insurance, in which the money travels from an individual in one state to a corporation in another, fits that bill. Congress is free to regulate, aka pass laws about, that commerce.

The courts have upheld this position, the broad power of Congress to manage the national economy. How they manage it, be it Laissez-faire or complete communism, isn't addressed in the constitution. The constitution gives that authority to Congress and, through elections, their constituents.

I'm not saying HCR is good or bad. But the fact is that it IS constitutional. The feds have the power to force you to enter into commerce (look at Eminent domain. In that case you're forced to sell, rather than buy. But both are, as far as the constituion is concerned, commerce.)

[sweetapogee]

60. I disagree

To give an example: In Germany in the 1930s, the government decided that the only way for the auto industry to survive and as a bonus provide every family with a car, it decided to mandate that every family pay for the car in monthly installments before the car was delivered. The money paid was to be used to build the factories and buy materials. Sounds like a good idea. This is basically the THEORY behind your idea that the constitution allows for the government to mandate that individuals purchase health insurance. In other words, insure that the system is funded by requiring that everyone pay into the system even if it is years before they access the system. I believe that you are incorrect and acting stubborn in the process.

Question: How many VW Beetles were built and driven by Germans before 1946? That is a research question. I do not believe that the american public will support basically the same financing scheme you propose once the full extent of that individual financial commitment is made popular. We do not live in the kind of nationalistic society that existed in Germany between the two wars. In fact, the germans had to abandon the concept after the war ended and i know of no legitimate use of the system today. Perhaps you do and can provide an example? Also, the cost of building a few million cars is minuscule compared to financing the united states health care industry. So, if the government were to proceed in like manner, well then at what point would they stop? No, I think the ensuring political mayhem would bring such an act to a fast end.

I remember as a kid that whenever you purchased tires for your car, you had to pay a federal excise tax. When tire companies advertised a sale on tires, it always included the disclaimer after the price "excludes mounting, balancing and federal excise tax". One day a group of curious tire buyers questioned the excise tax and learned that it was started during WW2 to finance the war and boost the rubber industry which was needed to fight the war. Sort of like a forced rationing and it didn't apply to other rubber products or even bicycle tires. Well the questioning as to why we needed to conserve rubber 40 years after the end of the war resulted in the elimination of the excise tax. What has happened now is we have learned from the experience and now question the tax before it is implemented, not after we have been paying it for 40 years. This issue transends the politics of many people in this country.

Since the Obama administration has made a commitment to overhaul the health insurance industry and given the very real possibility that a key aspect of that overhaul is possibly unconstitutional, I would hope that the administration is hard at work trying to craft a realistic workaround. If not, it may spell disaster for us in 2012.

Just my humble opinion.

[Statistical]

64. Nope the Commerce clause is wide (maybe too wide) but SCOTUS has ruled

ruled in limiting the Commerce Clause in the past so its scope is not completely unlimited.
The feds can't do *anything* as long as they do it to multiple states and invoke the CC.

[leftstreet]

27. If the HCR Bill is so great, why would you need to defend it to anyone?

:shrug:

[H2O Man]

28. nope

[Statistical]

29. FAIL. Your entire premise is that the only way the govt can achieve the end result is via mandate.

The reality is there are numerous alternatives including a single payer system. A mandate is only one complex and ineffective method to achieve the end goal of universal coverage.

The govt could simply have single payer system.
The govt could enact a system where anyone without private insurance (or who opts out of private insurance) is enrolled in a govt plan.

"Since the Individual mandate is necessary to ban discrimination on the basis of pre-existing conditions, and banning discrimination on the basis of pre-existing conditions is a regulation undisputedly in Congress' power to enact, the individual mandate is Constitutional under the necessary and proper clause. That's it. The end."

100% false. Without a mandate the govt could simply refuse to allow insurance companies to price policies different depending on pre-existing conditions that would end discrimination by making it illegal. Now that may result in higher premiums and you may not like that outcome but it would completely end discrimination on pre-existing conditions.

Lastly the belief that with such a restriction "NOBODY" would get health insurance is false. All employer based health insurance is prohibited from pricing based on pre-existing conditions, yet millions of Americans continue to purchase employer based health insurance. The belief they would IN MASS stop buying insurance is a fallacy. Some people would "cheat" the system but people current cheat every govt system from IRS to medicare to unemployment to VA benefits.

[onenote]

63. the fact that there are other alternatives doesn't make the one chosen unconstitutional

By your logic, all of the alternatives would be unconstitutional because none of them is "necessary" to the exclusion of all others.

[Lucky 13]

30. Can I just ask a totally off-topic question?

What do you do for a living?

I see you around here all the time and am deeply curious.

[Hello_Kitty]

33. There's no mandate now and we have 85% coverage. Most people with it are not sick.

It's not that no rational person will buy health insurance if they're not sick. It's that no rational person would buy the expensive crappy catastrophic insurance policies currently on the individual market. The adverse selection problem has been greatly overblown by the insurance industry to get them this mandate. I hate to break it to you but premiums aren't going to go down dramatically once it's in place.

[BzaDem]

35. Why would a rational person buy health insurance if they aren't sick and would never have to pay a

higher rate?

Out of the goodness of their hearts?

[Statistical]

42. Why do people do it right under employer based plans.

There is no price discrimination based on health history or status allowed in employer based plans but when the plan is good coverage is nearly universal.

Will some people "scam" the system, of course but most people won't (similar to virtuslly every public and private service on the planet).

[BzaDem]

47. In many cases, the credit you get on your paycheck if you opt out is not even close to the actual

cost of the insurance plan.

So you really can't opt out in many cases, even though people think they can and get a pittance in return. They are still taking your money by not giving you higher wages.

How is it scamming the system if there's no mandate? Healthcare is very expensive. It would be perfectly legal without a mandate to say "I'm young. I won't need to spend much on healthcare at all for the next 10 years. So I'll just save up a little cash to use in case I get hit by a bus, but that will be much cheaper than me paying insurance and cross-subsidizing people who are much sicker."

That's exactly why we need a mandate. To prevent that.

If health insurance cost 5 bucks, then you are right. People wouldn't scam. But when health insurance costs a significant portion of your income, and you need to pay your rent, you are going to be looking for an easier way to pay your rent.

[Hello_Kitty]

49. I saw plenty of "invincible" young people opt out of 401K and stock participation

At the big company I worked at. But no one opted out of the health insurance, even though it came with a modest premium. It was excellent insurance.

[christx30]

82. When I was working at dell

I was making $14.02 an hour. I bought health insurance for 11 of the 12 years that I worked at Dell. It was great being able to pay $10 for a doctor's office visit. I was in my early 20's with near perfect health, but I knew that anything could happen and I knew that not buying it when I could afford it was stupid.
But I was laid off in 2008 and I hsven't had insurance since then because it is too expensive. Buying it now for my wife and I would take over 50% or more of my paycheck. I had to get a second job just to pay rent, so that wasn't going to happen. I'm now very careful with my daily activities, and I am very health conscious. Even got pink eye last year and I had to treat it myself with over the counter drops, when i would have gotten a script from a doctor when I was Dell.
But mandating me to buy health insurance is unacceptable to me, and would probably force me into an even worse finantial posistion than I am in currently.

[Tx4obama]

34. History: There was a law with a mandate to purchase a gun

Excerpt:
.... an article, “The First Individual Mandate: What the Uniform Militia Act of 1792 Tells Us about Fifth Amendment Challenges to Healthcare Reform.”

The Militia Acts of 1792, passed by the Second Congress and signed into law by President Washington, required every able-bodied white male citizen to enroll in his state’s militia and mandated that he “provide himself” with various goods for the common weal:

(E)ach and every free able-bodied white male citizen of the respective States . . . shall severally and respectively be enrolled in the militia . . . .provid(ing) himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein . . . and shall appear so armed, accoutred and provided, when called out to exercise or into service

This was the law of the land until the establishment of the National Guard in 1903. For many American families, compliance meant purchasing-and eventually re-purchasing-multiple muskets from a private party.

SNIP
http://www.thehealthcareblog.com/the_health_care_blog/2010/07/the-original-individual-mandate-circa-1792.html

Also see links below:
http://acandidworld.com/2010/03/26/the-individual-gun-mandate/
http://nems360.com/view/full_story/9168286/article-BOBBY-HARRISON--Health-care-mandate-sounds-like-gun-ownership-mandate

[Lydia Leftcoast]

46. That's hardly an admirable precedent

No wonder the Wild West was so wild.

[Tx4obama]

59. It may not be admirable but it is 'precedent' that can be used in future judicial decisions. n/t

[coti]

50. Bza's trying to talk Constitution again. The Necessary and Proper Clause this time, eh?

Why not Marbury v. Madison? LOL

More Teabagger Con Law.


Like "fact," I think "necessary" is a much stronger word than you make it out to be.

Further, your reasoning would make just about any legislation (as long as someone could come up with a half-assed argument like yours for it) within the powers of Congress. The clause wasn't meant to be interpreted that broadly.

[onenote]

65. you make think "necessary" is stronger word, but you aren't Justice Marshall

And while you may have thought you were making a joke by referencing Marbury v. Madison, you actually were just a wee bit off. The correct Justice Marshall precedent is McCulloch v. Maryland. This is what Justice Marshall had to say in that case about the "necessary and proper clause": "We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." And if that isn't clear enough, Justice Marshall engaged in a length analysis of the scope of the word "necessary" as used in the Necessary and Proper clause, concluding that "Does always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable."

Given that the SCOTUS tends to be fairly reluctant to depart from Justice Marshall's opinions, you may want to rethink your conviction that "necessary" means what you think it does as a matter of Constitutional jurisprudence.

[coti]

70. I said the word is stronger than the OP gave it credit for, and it is.

The OP's interpretation would seem to give limitless power to Congress, which was not the intent behind the clause. If the interpretation supported by you and the OP was the correct one, nearly every case regarding legislation passed by Congress would be argued to be Constitutional under the Necessary and Proper Clause. It wasn't intended to give Congress the power to force every citizen of the United States to fork over, directly, thousands of dollars per year to a private entity for a product people don't necessarily want or need.

Put another way, if your intepretation is correct, what type of legislation IS beyond the powers of Congress?

Federalists such as Hamilton argued that the phrase was axiomatic and redundant in response to the objections of Anti-Federalists, who believed that it gave far too much power to Congress. In other words, your interpretation is the "worst-case scenario" of those who were against it when the Constitution was being created, and the opposite of the interpretation given by those who supported its inclusion.

McCulloch v. Maryland was a very early case (1819) in the jurisprudence that was a milestone in establishing the supremacy of federal law. It was an important decision, but the clause was interpreted liberally in that situation so that a federal bank that had recently been created could be defended. The case helped to overcome anti-federalism.

However, the expansion of powers seen in the HCR bill go well beyond just creating a federal bank. This "Third Way" approach of Democrats- funneling tax dollars directly to private industry for services, and now taking money directly out of consumers' pockets and handing it over to the capitalists- encapsulates the worst of the federal and private industry worlds. Before the DLC's approach, the federal government had an awful lot of power, but at least it was looking out for people. And, sure, business people were greedy and untrustworthy, but at least you had a choice as to whether you engaged with them.

Now, we see the supreme power of the federal government combined with the greedy cronyism and lobbying of corporations. That was NOT what the founders of our country intended when they inserted the Necessary and Proper Clause into the Constitution.

HCR is corporate fascism, which is about the farthest thing FROM "necessary" possible. Personally, I'm glad that someone- even if they were a Republican- stood up and said, "No, that's not what we do here in America."

[BzaDem]

72. What you are saying is totally false. The question isn't whether it is neccessary to YOU.

The question is, is it necessary for an insurance regulation to work. And it is necessary for the pre-existing condition regulation to work. That's it.

Whether you call it "corporate fascism" is completely irrelevant. Just because a law makes you seethe in anger doesn't mean it isn't necessary for the pre-existing regulation to work, and that's the end of the question.

This is what the Supreme Court just said last year about the clause:

"If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone."

[coti]

73. "It is necessary for the pre-existing condition regulation to work." Why was THAT necessary?

Why is it NECESSARY to continue on with the private insurance industry at all?

Your argument is playing off of itself- the legislation is necessary because of other parts of the same legislation. It's "necessary" because of the bullshit healthcare system framework you've acceded to.


The fact is there is NO precedent for the corporate fascism you're supporting. This law would establish entirely new powers for the federal government. That's why it can be so easily struck down as unconstitutional. You don't like THAT? Well, tell it to the judge.

[BzaDem]

74. I think you are misunderstanding what has to be necessary. The pre-existing condition regulation

does not have to be necessary at all.

Congress has COMMERCE clause power to enact the pre-existing condition regulation. So it can come up with whatever "bullshit" regulations it wants under the commerce power, like the pre-existing condition clause.

The only question is whether the mandate (enacted under the necessary and proper clause) is necessary to make the pre-existing condition regulation work. The pre-existing condition regulation itself doesn't have to be necessary at all.

"You don't like THAT? Well, tell it to the judge."

Actually, 12 judges have all thrown out cases with the exact same issue in other jurisdictions, and some of which have written long opinions the mandate is constitutional and the argument against it is complete crap. This is the only judge that has said otherwise. Even with regards to this opinion, CONSERVATIVES (who hate the mandate) and liberals all agree that the opinion was obviously flawed in its necessary and proper analysis.

[coti]

75. Given your interpretation of the Clause, what CAN'T Congress do?

That is the question.

Your argument allows Congress to pass whatever the hell they want. That's why it's wrong.

Why couldn't they, given a failing American auto industry, force Americans to buy an American automobile once every five years? Why wouldn't that be "necessary" for a healthy economy?

[BzaDem]

77. What regulation would your proposal be "necessary" to?

The question isn't whether something under the necessary and proper clause is necessary to some condition (like "the health of an American auto industry"). It is whether it is necessary to make some OTHER validly enacted law (like the pre-existing condition regulation) effective.

"Given your interpretation of the Clause, what CAN'T Congress do?"

The Supreme Court has already answered that question. They said Congress can't regulate bringing firearms into a school zone, because that exceeds enumerated powers.

"Your argument allows Congress to pass whatever the hell they want. That's why it's wrong."

That's actually an incorrect premise all by itself. You have to find an actual Constitutional provision for why a law is wrong. You can't just say you don't like the consequence of large federal power, and therefore it's wrong. In basically every single necessary and proper cause, the plaintiff has argued "if you allow this, then it allows all federal power!" Then they lose, but 5 years later they're back again claiming something still isn't in Congress' power, even though they lost last time and claimed that a loss last time would mean there would be no limits.

It's sort of like your "corporate fascism" remark. There's nothing in the Constitution that says you can enact necessary and proper laws, UNLESS coti thinks it's corporate fascism. Just because you don't like the consequences of a law doesn't mean the law isn't entirely valid.

[coti]

78. That's a meaningless distinction. Congress has passed laws regulating everything imaginable.

Including the automobile industry. Why couldn't Congress pass such a law based on the "government takeover" of GM?

Then you say that "You have to find an actual Constitutional provision for why a law is wrong." That's just wrong with regard to enumerated powers. It's the other way around. Your understanding of even the basics of interpreting the Constitution is very weak.

As for your next "point," consequences is what the law is all about. The law has goals. It's a means to an end. Trying to disregard the consequences of laws as meaningless is totally absurd.

Finally, I'm not the one who said the mandate was unconstitutional. A judge did. I agree with him (though not with the totality of his reasoning). It's not as if I'm trying to take on the power of judicial review myself, like SOME people do.

[BzaDem]

69. Actually, the "necessary" requirement is MUCH less strong than you think it is.

In the modern era, "necessary" simply means "would it be rational for Congress to think so." That's a very weak test. Cases since McCulloch vs. Maryland have shown that necessary is an extremely low bar to get over.

[Matariki]

51. Ugly reasoning.

A head tax or capitation tax (or poll tax, according to non-U.S. English usage) is a tax of a portioned, fixed amount per individual in accordance with the census (as opposed to a percentage of income). When a corvée is commuted for cash payment, in effect it becomes a poll tax (and vice versa, if a poll tax obligation can be worked off). Head taxes were important sources of revenue for many governments from ancient times until the 19th century. There have been several famous (and infamous) cases of head taxes in history, notably a tax formerly required for voting in parts of the United States that was often designed to disenfranchise poor people, including African Americans, Native Americans, and white people of non-British descent (e.g., the Irish). In the United Kingdom, poll taxes were levied by the governments of John of Gaunt and Margaret Thatcher in the 14th and 20th centuries, respectively.

[TheKentuckian]

53. While I think the Wealthcare and Profit Protection Act is probably covered by the commerce clause

I think the argument that the mandate is necessary to regulate the industry is false.

Pre-existing conditions could simply be banned. There is no requirement to protect the insurance cartel from adverse selection at all nor is there anything prohibiting price controls or anything else the industry may cry about.

Nothing about the adverse selection issue prohibits the government from regulating insurance, it may not seem "fair" that the poor cartel can be "abused" by the public but it has nothing to do with the regulation and oversight, that is a leap in logic being made.

The government has the ability to not only ban pre-existing conditions without the mandate but to prohibit price increases. It would choke the cartel to death but it would be within the scope of the power of our government to dictate such terms.

[BzaDem]

71. It wouldn't choke the cartel to death at all. It would just mean that only rich people could afford

insurance on the individual market (like in New York state).

You may think that a mandate isn't necessary, but it easily passes the 'necessary' test of the Constitution. The question Constitutionally is could Congress have rationally thought so, and the fact that basically all healthcare economists disagree with you pretty much ends the analysis.

[Odin2005]

56. I have a huge issue with mandating that people by the product of a private company.

If it was a payment into a government insurance plan I would be fine, since it would be like a tax, but this is corporatism gone nuts.

[MadHound]

57. It is always amusing when people ignorant about the law,

Try acting like Constitutional scholars.

[Romulox]

62. That is true. However, ultimately, the Constitution says whatever the majority of Justices say

it says.

Scholarship of Constitutional law therefore provides less insight on how this (or any case) will be decided than does a good working knowledge of partisan politics and ideologies. For example, one of the leading Constitutional doctrines of the 20th century was based on the so-called "substantive due process" clause of the US Constitution. While I don't argue against some of the rights (nor penumbrae) discovered therein, such a process of impressionistic discovery does not give itself to orderly study...

[treestar]

61. The best place to start with this is the opinion itself.

DU and the law = never look at the opinion, just agree or disagree based on how we already feel about the issue.

[thotzRthingz]

79. wrong, plain wrong, period...

From this article: 20 states ask judge to throw out Obama health law
ref: http://news.yahoo.com/s/ap/20101216/ap_on_bi_ge/us_health_overhaul_lawsuit

...comes the Federal government's argument:
"because everyone needs medical care"

...to which I say BULLSHIT! "Everyone" neither needs medical care nor does "everyone" seek it out even *if* OTHERS think they need it. It's a bogus argument, period!

Read the article, see what the judge says about his own history... and about "regulating commerce" being used as a bogus argument.

[Creative]

80. Except that...

The clause provoked controversy during discussions of the proposed constitution, and its inclusion became a focal point of criticism for those opposed to the Constitution's ratification. While Anti-Federalists expressed concern that the clause would grant the federal government boundless power, Federalists argued that the clause would only permit execution of power already granted by the Constitution.

[Bluenorthwest]

81. What do you do for a living?

I think you have a vested personal interest in the subject matter, or at least your manner and your stretch to fit rationalizations suggest as much.
Fact is Candidate Obama opposed the mandate and favored a public option. Then he reversed it. He was, as we so often are, correct the first time.
But even if we were to need a mandate, it is not required that the mandate create profit for any company. In fact, in the several democracies in which individuals are mandated to purchase health insurance it is illegal to provide those services on a for profit basis. As it stands the impending US mandate will be the only such mandate that demands citizens purchase from profit based providers on the planet.
The only people who like this are the Insurance Companies. It is a stinking set up. And of course, the opposite of what the big Christian President said he'd do. His word being a sacred bond and all that, like straight marriage. He said mandates were unnecessary and stupid. He argued against them six ways to Sunday in every possible medium. And he was correct, back then.