States preparing to sue over HCR

[twitomy]

Source: Washington Post

A spokesman for Virginia Attorney General Ken Cuccinelli II (R) said this afternoon that Virginia will file suit against the federal government if the Democratic health care reform bill is approved by the U.S. Congress.


Read more: http://voices.washingtonpost.com/virginiapolitics/2010/03/cuccinellis_office_confirms_vi.html

---

Reason one it is unconstitutional: The "mandate"

Reason two (if applicable): Lack of recorded vote.

[pnwmom]

1. Reason two won't fly because the Supreme Court ruled on this during the Bush

administration.

[harkadog]

8. What case?

[No Elephants]

39. I think you're mistaken.

[Jennicut]

44. There was a case related to this in 2005 by the Supreme Court

Public Citizen had some issues with the way Repubs passed bills and in 2005 took it to the Supreme Court. They lost.


Per Politico's Josh Gerstein:
Here's my take: even if the technique is unconstitutional, it doesn't matter.

"How can it not matter?" you cry. "Our sacred Constitution is being trampled."

Well, the Supreme Court has said it doesn't matter, in the sense that courts are precluded from exploring the mechanics of whether a bill was actually passed. Under the "enrolled bill rule," once the House Speaker, the President of the Senate and the President of the United States sign a bill indicating it was passed, it's a done deal.

"The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept as having passed Congress all bills authenticated in the manner stated, leaving the courts to determine, when the question properly arises, whether the act so authenticated is in conformity with the Constitution," the Supreme Court held in Marshall Field v. Clark.

The ruling is a bit old; it dates to 1892. But lower courts have found it to be reaffirmed by the Supreme Court as recently as 1993.

The last big showdown on this issue was just a few years ago, over passage of the Deficit Reduction Act of 2005 (in 2006). The version passed by the House was changed by a clerk after the House adopted a version which differed from the Senate-passed language on Medicare reimbursement. House Speaker Dennis Hastert (R-Ill.), Senate President Pro Tem Ted Stevens (R-Alaska) and President George W. Bush all signed the measure, despite the discrepancy.

A flurry of lawsuits were filed over the irregularity. All of them failed. A panel of the D.C. Circuit ruled, 3-0, that the "enrolled bill rule" applied "squarely" and ruled out any judicial exploration of whether the law was properly passed. The Supreme Court rebuffed at least two requests to take up the issue.
http://www.politico.com/blogs/joshgerstein/0310/Is_deem...

In my opinion, it is not even unconstitutional and the SC ruled many times this type of thing is not. The Repubs have no legit argument.

[DatManFromNawlins]

53. The issues are not remotely the same

An enrolled bill is a bill which has passed both the House and the Senate. An engrossed bill is a bill passed by one chamber.

The bill they are talking about is not an enrolled bill. It is an engrossed bill.

In prior cases, there might be a slight wording discrepancy as a result of an oversight or typo, but as long as the Speaker and President of the Senate give their okay, that's fine.

The issue in this case is that the bills are not remotely similar.

There are no enrolled bills. There's only two engrossed bills.

[No Elephants]

57. That was not a deeming case.

[karynnj]

2. The second is just silly as there will be a recorded vote even under the "deem it passed" scenario

This is just partisan nonsense.

[twitomy]

4. If there is going to be a "recorded vote"

then why not just vote on the damn bill flat out with this "deeming" nonsense? Why are they afraid to do it?

[karynnj]

6. I agree with you, but apparently some Congressmen do not want to be

on record voting for the Senate bill, but are ok voting for the Senate bill AND the reconciliation at the same moment as it cancels out the bad provisions.

[abelenkpe]

3. so a fiscally conservative

is planning on wasting precious and dwindling taxpayer funds pursuing a losing case?

[AlbertCat]

5. I was gonna say.... doesn't he have something better to do?

[awoke_in_2003]

16. TORT REFORM NOW!!!

:hide:

[No Elephants]

40. What does tort reform have to do with a Constitutional challenge?

[awoke_in_2003]

42. the poster I was responding to...

brought up wasting tax payer money to fight this, and I threw in the "Tort Reform" line because it is one of the things the right is always harping on, unless of course it helps them. But when you have to explain the joke, it is no longer funny. Fuck, this place has become something else- people used to have a sense of humor.

[No Elephants]

45. A sense of humor and the ability to read your mind are two different things.

Your gratuitous put down attempt says nothing about my sense of humor, but says a lot about you--and not that you're the next Seinfeld, either.

[awoke_in_2003]

47. Do me a favor...

put me on your ignore list

[No Elephants]

56. Do us all a favor. Go take a nap.

[SteveG]

36. Courts have already ruled on Deem

During the Bush Admin, the house used the procedure to pass a law, and Pelosi and Slaughter filed suit in Federal court challenging the legality of the procedure, the courts ruled in the Republicans favor.

[No Elephants]

41. Link or case name? (I don't think your info is correct.)

The procedure has supposedly been used since the 1930's, including by the Republicans under Bush, but I don't think the SCOTUS ever ruled on it.

IMO, it most certainly is constitutional because the Constitution leaves such matters to House rules, but I ain't the SCOTUS.

[The Wielding Truth]

63. We should sue him for pursuing a frivolous law suit. They will

do anything to promote themselves and thwart democracy and the common good.

[PSPS]

7. Silly nonsense, of course. He's just pandering to the birthers.

[Socal31]

9. It isn't just Birthers that dont want to be forced to give money to the Insurance COs.

[kestrel91316]

10. O RLY??

[Socal31]

11. I kid, I kid.

Where do I send the check?

No UHC = no-go.

[Captain Hilts]

12. Sucks to live in the anti-government Sunbelt. nt

[LibDemAlways]

13. The first of many lawsuits that will tie this turkey up in

the courts for years. Anyone thinking this is going to change their lives anytime soon isn't living a reality-based existence.

[Jefferson23]

14. I haven't read any legal opinions on the constitutionality re: the mandate

Has anyone else?

[kirby]

30. Yes, it is not a mandate...

I recall reading the bill and the provision is not a mandate despite everyone's bitching and moaning. It is voluntary and not enforceable.

(2) SPECIAL RULES.—Notwithstanding any other provision of law—
‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.

[Jefferson23]

31. Thank you very much Kirby, for the information. n/t

[No Elephants]

46. Not a mandate? So, they've been lying to us? Something's not making sense.

Besides, if a fine applies, it is still a mandate.

If the law requires payment of a fine and you don't pay the fine, you're a lawbreaker, even if they don't jail you or lien your property.

[girl gone mad]

33. Yes. There are quite a few Constitutional scholars who are of the opinion..

that the mandates would violate the Constitution, or at the very least set an extremely dangerous precedent.

http://www.csmonitor.com/Commentary/Opinion/2008/0326/p09s01-coop.html">Here is one:

Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

The closest we come is when government imposes a condition on the grant of discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary – you don't have to drive a car or build a house. Nor do you have a constitutional right to do so.

But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits.

(snip)

In fact, under the law, there's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.

Taxation involves representation, as when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business.

What representation do we have in the insurance firms whose products we would be required to buy, at prices and terms they set? Can we vote out an insurer's board of directors for denying claims or paying its CEO a multimillion-dollar salary? Here, too, the Supreme Court has drawn a distinction between taxes imposed by government and mandatory fees set by entities with private interests.

A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."

Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.

These constitutional rights aren't absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling.

We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.

There are far more sensible and constitutional ways to provide health coverage. Government-funded insurance (such as Medicare or single-payer insurance) or regulation and tax subsidies to encourage voluntary participation (as in Obama's plan) both contain costs more efficiently and avoid the slippery slope of unconstitutional mandates.

[Jefferson23]

35. Thanks for the link, appreciated!

[coti]

54. This is the right argument, with some tweaking.

The "taking" route may not be the way to go, although it is still decent.

The enforcement of the mandate is through a penalty tax. The argument should more or less go that the penalty tax violates the 5th Amendment's implied equal protection provision because it is treats similarly situated individuals (those simply living in the United States, without regard to any "discretionary benefits," as mentioned above) differently, based on whether they have contracted for (rather expensive) services with a private party, imposing a penalty tax on those who have not, although there is no compelling justification for it. It seems to me that freedom from contract is a fundamental liberty interest and that mandating contracting based on the mere fact that one lives in the United States (as opposed to examples like a doctor being required to contract for malpractice insurance, or the like, to be licensed) infringes on that liberty interest, and would demand strict scrutiny from the court.

It ties in with the due process argument above and it's somewhat difficult to see where one ends and the other begins, and the whole thing still needs refining, but the above writer definitely has the framework for it set down.

[coti]

58. More-

Interestingly, the insurance companies, if they wanted to get out of some of the HCR's provisions, also have a freedom-from-contract argument against being forced to cover people with pre-existing conditions (which is the flip-side of the mandate- the two provisions, according to the logic, go hand-in-hand, because if you force the insurance companies to provide insurance to people with pre-existing conditions, unless you mandate everyone to buy insurance at the outset, people will just wait until they get sick to buy insurance, which isn't fair). It's a little more complicated in their case, since corporations are government-created entities subject to heavier regulations, but for the most part it does seem like their rights to contract are or should be just the same as those of individuals.

There are other, similar contractual regulations imposed on contracting parties, too, some of them surrounding race issues- affirmative action laws (which have recently taken some hits) and laws regarding racially discriminatory selling or renting of property, for example, or offering services dependent on race. The difference there, though (and don't quote me on this with regard to precedent) is that, where the laws mandating sales or services have withstood consitutional scrutiny, it seems to me there was a compelling interest being protected.

Anyway, I haven't exactly been researching any of this so it could be inaccurate, especially with regard to specific rationale in the case law, but it's just my general impression of what's constitutionally relevant and the direction it goes in.

[Barbara2423]

15. File One Against the Auto Insurance Industry - Too.

[awoke_in_2003]

18. While I may not agree with this "health care" plan...

auto insurance is a bit different- nobody forces you to drive.

[AlbertCat]

21. nobody forces you to drive.

It's just your life is practically impossible if you don't. Down here, the bus system is called "The maid loop". It doesn't go anywhere except between Country Club Dr. and N. 4th Street.

Anyway.... the mandate seems unfair without some kind of PO.


Lordy.....single payer seems so much easier and better... maybe that becoming obvious to everyone and their grandmother will be the silver lining to this whole boring, pitiful, unruly Health Care Reform soap opera.

[awoke_in_2003]

23. I like that idea...

about a public option for auto insurance- I could back that. De-regulation has hurt us in so many areas of our life, whether it is the cost of energy or health care or a myriad other things.

[smiley_glad_hands]

22. Nobody forces you to go to the hospital emergency room with out insurance either.

Fact is the government forces people to buy private insurance to cover a wide range of liabilities.

[awoke_in_2003]

24. And exactly who...

is regulating the health insurance industry? No one, and that won't change. I have UHC at work, and because they only made $4 billion in profit last year, our rates went up 17%. Of course now we have an even shittier UHC plan, where my deductible tripled and MRI's went from $50 to almost $900. And guess what, rates will raise the same (or more) next year. And any legislation that comes out will NOT have any teeth behind it. Seen the bait and switch too often. Our "leaders" are bought and paid for- if this thing passes it will be because the health insurance industry allows it to pass.

[No Elephants]

55. Fact? What wide range of liabilities does government force us to insure against?

And your comment about not being forced to go to the emeergency room is beside the point. It's not only people who show up at the emergency room who will have to carry insurance.

[LibDemAlways]

19. No one has ever forced me to buy a car. If I choose to buy one, I accept that

the state requires that I insure it.

I have no choice about having a body.

Apples and oranges.

[No Elephants]

48. Close, but no cigar.

You have to get auto insurance if you choose to own a car, and only if you choose to own a car.

The only way you get out from under the mandate to have health insurance is to leave the country.

[coti]

61. It's not even that close. That analogy has been shot down a thousand times, now.

Another distinction is that car insurance regulations require liability coverage, not coverage for one's own property or person. The rationale is totally different- the idea is that, if you're going to choose to drive a big, dangerous machine, like a car, you need to have the ability to pay for damages done to someone else's property or person, or you're putting them at risk for unrestituted damages. That rationale does not work for the HCR mandate, at least not nearly as strongly- we're talking about individuals' financial needs with regard to their own healthcare, not someone else's. Even to the extent that hospitals might argue that they take on the financial risk of emergency treatment for those without insurance, in most situations private hospitals, at least, have the option of turning people away.

Not that I agree that that is the way things should be in our healthcare system (I'm for single-payer), but that's the way they are now.

[quakerboy]

17. so whats he running for?

[smiley_glad_hands]

20. It will be a waste of taxpayers money to bring a lawsuit.

1. Government already mandates people to buy insurance to cover their liabilities. You drive a car?

2. There will be a recorded vote, they are voting on both the senate bill and the reconciliation bill at the same time. It's really not that difficult to understand, unless you are an out of power repug that has used this voting tactic more than any democratic congress has in recent years.

[warm regards]

25. Maybe, but 37 states are considering it...

And the mandate to buy auto insurance is to cover the damage you could do to others, not yourself.

[Grown2Hate]

26. So is mandated CAR insurance unconstitutional? Just sayin'. NT

[frylock]

27. it is if you're mandated to buy a CAR

[No Elephants]

49. Please see Reply #38.

[ibegurpard]

65. well, gee...i can decide not to own a car

not much alternative to LIVING.

[Hawaii Hiker]

28. Then by this logic the families of those drafted for military service during Vietnam

could have sued, saying it's unconstitional to "mandate" military service??...

Perhaps I'm making an apples to oranges analogy but if these people can threaten a lawsuit if they don't like this act of congress (HCR), why didn't the families of a draftee not sue during Vietnam saying you can't force military service?...

[twitomy]

34. Actually, Conscription HAS been a constitutional issue

Cant give you the reasoning of why it was deemed ok though.

The car insurance analogy is a really bad analogy. No one is mandated to buy a car, that is a choice.

[Xithras]

43. It was deemed constitutional because it's indirectly in the constitution.

Article I, Section 8:

"The Congress shall have power...To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"

The Supreme Court ruled that conscription was an ancient practice that had been used both in England and in the Colonies when the constitution was drafted, and was therefore an acceptable use of Congresses ability to "raise and support armies". The constitution also grants Congress the ability to "call forth the militia", and in the U.S., the unorganized militial is legally defined as all males between the ages of 17 and 45. So, yes, it's constitutional.

[No Elephants]

50. It is apples and oranges.

The power of government to conscript military troops, unlike things like auto insurance and health insurance, has always been a power of government. Also, that is government requiring citizens to serve the government--theoretically, to protect and defend the country. If government conscripted you to serve at military pay for a private, profit making company, like Blackwater, that would be closer to the health insurance scenario.


This is using the power of government to force you to purchase something with your own money from a private company. (Or, if not forced, then at least fined if you refuse. It's not an issue with Medicare because, with Medicare, you are buying coverage from the government, not a private company.

The closest SCOTUS case so far might be Kelo, a case where government's power of eminent domain was used to acquire someone's home so that a private developer could develop a supposedly blighted area of town.

But eminent domain proceedings are also apples and oranges because there is a court process for each individual. It's not just enacting a law that applies to every adult in the country.

[rug]

29. Reason three: the various state exemptions.

[Kablooie]

32. Maybe the mandate part of the law will be ruled unconstitutional but the rest, not.

So only the mandate part gets canned and the ins companies go apeshirt.

That might not be too bad a thing.

[No Elephants]

51. Bingo.

[joeglow3]

59. But that is one of the main things funding the reform

Without it, we will have a huge gap to cover.

[Kablooie]

64. The mandate funds the insurance companies, not the health plan.

So some kind of public plan may have to be put into play to make things work.

[joeglow3]

66. Ture, but a mandate is NEEDED to keep costs down

The problem is all the young people NOT getting insurance and driving the average cost per person down.

[denverbill]

37. How would Virginia have standing to file suit?

It seems to me like it should be individuals who would have to file suit, not a state. Sounds to me like Republicans who want to use state funds to fight a private battle.

What does Virginia stand to lose?

"Standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will imminently be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. The party suing must have something to lose in order to sue unless they have automatic standing by action of law." wiki

[Xithras]

38. The law forces the states to establish and maintain programs.

Therefore, the state has standing.

Besides, under the 10th amendment, any state can theoretically sue over any federal law by simply claiming that it's an usurpation of state authority. It doesn't happen often, but it's not unprecedented.

[No Elephants]

52. If they succeed in blowing up the mandate, single payer might be the only lawful alternative.

:evilgrin:

[Xenotime]

60. They will think twice when Obama pulls disaster funding from them.

[coti]

62. Pulling disaster funding?

How can you harp on the health of Americans to pass this bill and then use a tactic like that?

[vadawg]

67. so its agree with me or suffer....

[DatManFromNawlins]

68. It's a good thing Obama has a nice retirement package waiting for him

Because he'd need it in less than 3 years if he did something monumentally stupid like that.