Sorry all, but it's not unConstitutional.

[Xithras]

I've made no secret of the fact that I think the HCR bill is horrifically flawed and will end up being an anchor used to further drown our lower classes and accelerate the transfer of wealth from the poorest Americans to the richest. My future donations to the party, and voting support, will reflect those feelings, and I will not accept anything short of an end-to-end overhaul of the bill from anyone I vote for from this day forward. The mandate needs to go. We need a public option. Deductibles need to end. We need solid cost controls. It needs a progressively taxed funding system. I could go on for an hour, but you get the idea.

That said, the bill IS constitutional. The constitutionality was hammered out on the web, in the media, and right here on DU many months ago, and the conclusion was consistently that it is not only legal, but that it's supported by previous Supreme Court precedent. I have no doubt that it will be challenged, but they won't be breaking new ground when the Supreme Court rules it legal. Congress can mandate that you buy health insurance. Congress can mandate that you buy one tomato a day. Congress can mandate that you buy a new car at least once every five years if you drive. They can do it, because the Supreme Court has already ruled that it's an acceptable use of Congressional power.

Wickard v. Filburn (1942)

During the Great Depression, Congress enacted laws limiting wheat production to protect prices. Only so much could be grown, and it had to sell for a certain price. At the same time, a small family farmer named Roscoe Filburn was growing a few acres of wheat to feed his chickens. Filburn was nothing special, but he gained the attention of local enforcers, which led to a challenge of the law on Constitutional grounds.

His argument was simple: Congress, by prohibiting him from growing his own wheat, was essentially mandating that he purchase a product from a private, for-profit source. He saw that as an unconstitutional breach of Congresses powers. While nobody disputed that Filburn was capable of creating his own "product", the U.S. government maintained that it had a right to require him to purchase it elsewhere.

In the ruling that followed, the Supreme Court agreed with the government. In the text of the ruling, they declared that by FAILING to purchase his wheat commercially, Mr. Filburn was essentially keeping his money OUT of the interstate wheat market, which had a negative effect on the market as a whole. Because Congress DOES indisputably have the right to regulate the wheat trade, and because Mr. Filburns lack of purchasing was impacting that trade, Congress DID have the right to regulate or mandate Mr. Filburns purchases under the power of the Commerce Clause. In their ruling, they made it clear...if a citizens purchases, or LACK of purchases, impacts interstate commerce, Congress has a right to regulate it, mandate it, limit it, or require it. If they want to require that you buy a tomato a day, and they can show that your lack of tomato purchases has a negative impact on the interstate tomato market, they can legally issue that purchase mandate without running afoul of existing precedent. Quote from Wiki: "...Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial."

I'm certainly not defending or advocating for Wickard v. Filburn, and it's widely considered to be among the worst Supreme Court decisions in American history, right up there with Santa Clara vs. SPRR, but it IS standing precedent and is currently considered to be the law of the land. Congress has avoided abusing the ruling since 1942, knowing that mandated tomato and car purchases would simply foster a voter revolt, but it's lack of use does not undermine its legal validity.

Congress can mandate that you buy health insurance, because health insurance companies are now federally regulated under the Commerce Clause. By failing to purchase health insurance, you have a negative financial impact on the industry as a whole, which creates an increase in the market prices that others pay for that service. Your lack of purchasing, therefore, is impacting a congressionally regulated market, opening your own purchases (or lack of) to regulation.

The commercial product is different, but the fundamental legal principle is the same. Congress can mandate.

[Xenotime]

1. Sup and with the strong pull we have in the SCOTUS, we will legislate a solid lock on HCR

They don't stand a chance.

[ixion]

2. There is no precedent for a mandate such as this

so I would beg to differ. The matter will most certainly be challenged.

[Name removed]

3. Deleted message

Message removed by moderator. Click here to review the message board rules.

[HiFructosePronSyrup]

5. I warned about the spread of fascism when it took over Belgium and Switzerland.

:crazy:

[derby378]

4. Interesting, but I would ask this...

Any American with an appropriate pot full of the right soil could hypothetically grow his or her own wheat, even if it's just a miniscule amount.

How many Americans can start their own health insurance company, let alone keep it solvent?

[Xithras]

11. That's just it. People do it every day.

It's called "Pay as you go", and it's practiced by the overwhelming majority of the working uninsured in this country. If you don't have insurance, you simply take the financial hit and pay the doctors bills as they come in. For the average American twentysomething, that works out to between $400 and $2000 a year (usually cheaper than maintaining insurance coverage). People without insurance DO see doctors, they just pay for it themselves when they can (or default on it when they can't).

Congress has just declared that you are no longer allowed to pay your own way, even if you are financially capable of doing so, and even if it makes more financial sense for you to do so. You MUST buy the commercial product, because your lack of purchases is harming others.

[EFerrari]

6. It will be interesting to see what Roberts chooses: to protect the industry

or to screw with Obama.

[conscious evolution]

7. Maybe-maybe not

We shall see once it makes it to the SC.
Remember this-Todays SC only plays lip service to the Constitution.They will rule based on what position their corporate masters dictate.
Don't believe me? google Gore vs. Bush sometime.

[OneTenthofOnePercent]

8. Filburn was already engaging in commerce. Congress can regulate commerce impacting interstate goods

Filburn was already engaging in commerce. The dispute was simply about that commerce qualifying as "interstate".
Obviously, congress can regulate commerce which impacts interstate commerce. Filburn was not disputing this fact.
However, NOT purchasing a product (insurance) is, by definition, NOT engaging in commerce.
Therein lies the difference. Filburn addresses a different topic than "mandates" and therefore does not justificy mandates.

Would you say congress can mandate you to buy ANYTHING simply because if you buy it, commerce is involved?
Buy american cars, or else.
Buy US Treasury Bonds, or else.

No. Congress can regulate commerce. It cannot MANDATE commerce. Big difference.

[Xithras]

13. No, Filburn was not engaging in commerce.

If you re-read the case, you'll see that the point of contention was 11 acres of wheat that he had grown to feed the chickens, for his own use, on his own farm. Filburn WAS a commercial wheat farmer, and the commercially grown portion of his farm was fully compliant with the laws intent and direction. The point of dispute, and the question that eventually faced the court, was whether Filburn has the right to noncommercially grow an extra 11 acres of wheat for his own private use on his own farm.

The Supreme Court declared that he did not have that right, and that he had to buy the wheat for his non-commercial purposes at market rates (or deduct it from his own allotment...either way, he'd end up paying for it). Though his 11 acres were not engaged in commerce, the SC declared that Congress could regulate them because they impacted commerce.

[OneTenthofOnePercent]

15. Correct... but actions he was engaged in would have affected commerce.

He grew wheat and his actions were deemed to affect commerce. That commerce was decided to be within interstate jurisdiction.

A better comparison (to the HCR debate) would have be if the government taxed Filburn for an extra 11 acres of wheat even though he had chosen not to grow anythng - claiming that Filburn's choice not to grow anything affected commerce. Of course, while our choices NOT to engage in commerce will ultimately affect the market, the fact of the matter is that we are not engaging in commerce and subsequently outside the bounds of regulation in the name of interstate commerce.

FWIW, I think the Filburn ruling is bullshit. It was Filburn's land and his wheat.
If it's life cycle was truly for 100% personal use - it should not have been regulated under interstate commerce.
That's a different topic for another day though.

[icee]

9. I hope you are wrong.

[Romulox]

10. Yes and no.

The legal authority and reasoning are certainly available to find mandates Constitutional. However, Supreme Court cases are decided by ideology and politics, not doctrine or precedent. That is to say stare decisis is one rule of Constitutional jurisprudence out of many and precedent does not dictate that the presently seated SCOTUS will find the present practice Constitutional (or Unconstitutional, for that matter.)

You'd do better to look at the politics of the Justices than precedent in this case.

[Xithras]

14. You're probably right on that point.

The SC can, and has, reversed itself many times, and this may end up being one of those cases. I have a gut feeling that, in the end, the Constitutionality of the entire bill may come down to Anthony Kennedy's personal opinion.

[jdlh8894]

12. Interstate vs Intrastate

IMHO,there's going to be a BIG to do regarding the 10th Amendment.

[Abq_Sarah]

16. But

The court never said Filburn must remain a farmer and purchase wheat or face a fine.

[DCBob]

17. Axlerod said yesterday WH counsel looked at this issue and cleared it..

It has been thoroughly examined and deemed to be legal or at least it will pass SCOTUS test. Maybe they are counting on 5/4 vote with Kennedy being the swing vote.

[quaker bill]

18. If the individual mandate goes

the constitutional test can be passed to the same effect.

What if instead they levied a tax and then offered a subsidy of 100 percent toward the purchase of a qualified private health insurance plan? Clearly raising taxes is constitutional and providing tax credits and refunds for specific things is constitutional. I will get a nice tax refund on the white roof and insulation I installed to improve the energy efficiency of my home this year. No one is challenging this for constitutionality. I was rewarded with tax credits for participating in a particular area of commerce. I had the freedom to choose not to participate, and not get the refund. Folks would have the freedom to not purchase the insurance and leave the tax collected in the general fund, or purchase and get the rebate. Taxes are mandatory.

A further step would be for the government to collect taxes and contract with qualified private insurance companies to provide benefits generally on a regional or national basis. Government clearly has the right to collect taxes and contract with private firms for services. Taxes are mandatory with criminal penalties for failure to pay them. I do not believe the right for the government to collect taxes is subject to constitutional challenge, nor is the right of government to contract with private entities for goods and services subject to such challenge. Participation would be mandatory as taxes are mandatory.

In every case, the market can be highly regulated, or not. However with the individual mandate, a person may select their provider freely, with a rebate program, a person may select their provider from a limited range of qualified private sector options, and with the tax and spend option, the selection of private insurance company is made by government and the benefits just provided. The tax and spend option clearly avoids the constitutional challenge to the greatest extent, but I am unsure that it would be the most efficient or politically viable model. In all cases, you end up with insurance benefits through a private sector provider. In this context, I prefer the mandate.

I would prefer a nationally run single payer system with government being the single payer. However, there are plenty of ways to avoid this potential constitutional question, while leaving the insurance executives in place and still making tons of money. One should be careful of what one wishes for.