3281

Yeah, my understanding of the Necessary and Proper clause is that it extends the federal government’s powers but only in continuance of constitutionally allowed areas. Bad example but best I can come up with in 10 seconds: the federal government can’t use the Necessary and Proper clause to force everyone in the nation to buy a membership to a gym, even if it would make everyone healthier and make the health care costs go down. I think that is the argument.

3282

Time for another few months of fun pretend legal logic from everyone’s favorite partisans!

It’s all going to come down to what Kennedy thinks of the bill.

3283

Yeah pretty much.

They really should have just explicitly made the mandate + penalty a tax incentive. Then there wouldn’t be any argument about this. It would work the exact same way, would be immune to judicial challenge, and probably would be a lot more popular.

3284

Jason, I think in this case there is a legit legal discussion. Just because we want the healthcare bill to stand doesn’t mean anyone asking the questions is a partisan airhead.

I’m digging and looking for a non-biased discussion (non-right or left wing.) I haven’t yet found a clear argument that (for me) makes it no question. But I think the best legit way to examine it and try to remove bias is to turn it around and ask the same questions if the law was requiring something you don’t like. For example, if the government decided that the best way to improve SS was to keep it like it is but require every American to buy mutual funds from a Wall Street company or pay a fine, would that be within their powers?

3285

That’s just silly socialist talk! How can any Western country have a single payer system and/or regulated health industry?! Pfft.

3286

I’m in favor of the US having something like Britain’s NHS, yet the “buy insurance or pay fine” mechanic always rubbed me the wrong way. States do manage similar things, what with Mass having exactly this mechanic, and most states requiring liability insurance before you can legally drive a car, but I guess that’s at the state level so it doesn’t apply.

Spot on. Of course, to have the net results be the same, it would have to include a tax increase that was exactly offset by the tax incentive, and that would have been a battle.

3287

Enh maybe. 700 dollar tax + 700 dollar tax rebate for purchasing insurance, problem solved. It’s exactly the same mechanism; the only thing that’s different is how you phrase it (penalty vs. rebate)

3288

I did 20+ years ago. Anecdote #2, I didn’t see much then either. Went into management, found out why. Left pharma, not that companies fault, it’s been broken that long.

3289

I have to say, I love my free government-sponsored health care in the form of the Veteran’s Administration. I rarely have to wait more than three or four days for an appointment, my doctor responds the same day to any health concern I might have and they’re quick to bring in a consulting doctor for a second opinion if I express the slightest doubt. Best of all, I’ve never paid a penny out of pocket for it. I only wish you could all be on it with me.

But hey, thanks for the socialism, taxpayer!

3290

It is good to know that federal judge Henry Hudson made his impartial ruling with no possible conflict of interest.

3291

Fine. But I’m more interested in the actual legal arguments.

3292

That is exactly how it should have been done. But the Democrats suck at the advertising part of politics.

3293

What about the Death Panels?

3294

I didn’t realize this until now, but the actual score is 14-1 in favor of the bill. Three courts have ruled it constitutional, 1 hasn’t and the others simply dismissed the cases brought against it.

3295

Does anyone here have some links to the actual rulings and explanations of the rulings for why it is constitutional?

3296

I may be mistaken, but I believe that is an example of gov’t regulating businesses. With the individual mandate, we have the federal gov’t legally requiring all of its citizens to purchase a private good or service, which conservatives claim (A) has never been done before and (B) exceeds the federal gov’t’s constitutional authority. [Whereas they’re OK with states passing individual mandates, like Massachusetts’, because rah-rah states rights!]

There was also some argument over whether the fine for not having health insurance was a tax (in which case it would be legal) or a service fee (which makes it a gray area, IIUC).

Ironically, from a legal perspective, it probably would’ve been okay to expand Medicare & Medicaid to cover everyone. After all, if it is constitutionally acceptable for the federal gov’t to provide health coverage to some of its citizens (and it’s been 40+ years since we created them, so I presume they’ve been legally challenged and held valid before), should it not also be acceptable to provide it to all? It doesn’t bar or ban the private health insurance companies from providing supplemental coverage, so it is not a true “gov’t takeover” of health care, regardless of the paranoid blather from the Right. The private insurance companies would’ve screamed bloody murder about how that would eat into their profit margins etc., but boo fuckin’ hoo.

Getting that one through the legislative process, OTOH, would’ve required divine intervention and I think Michelle Obama was busy that week working with teen fatsos or something…

Hmmm, so a conservative judge appointed by a conservative president owns <$50K share in a conservative consulting firm (that fought HCR) which makes him <$15K* annually in dividends found in favor of the conservative legal argument against HCR…and this makes his verdict completely & totally suspect because he’s been “bought off” or whatever? Who knew the going rate for federal judges was so low these days? Guess times are tough all around…

I gotta say, as smoking guns go, this one is pretty lame. Half-assed attempts at ad hominem attacks don’t suddenly become cool when our side does it, liberal dudes & dudettes. Dig up some real evidence or don’t waste time on innuendo.

*Given the low dollar value of his shares, I would presume his dividends are a lot less than $15K, unless there’s something really hinky going on, which would be the real story if so.

3297

I didn’t mean that; just that the logic of the legal merits are completely irrelevant. We already know how 8 of the Supreme Court votes will turn out regardless of the legal arguments, so any changes will be entirely up to Anthony Kennedy.

The short version of the interstate commerce clause is that virtually anything falls under it, subject to the political winds, how hard it is to wriggle out of precedent, and some technical details.

3298

Has the interstate commerce clause ever been used to force citizens to purchase something?

3299

It wasn’t specifically the commerce clause, but social security forces you to buy retirement insurance, as it were. That’s through the payroll tax however, so falls on the other side of the argument here re: should have made a cancelling tax/credit so it would work.

H.

3300

Ya, the government is allowed to levy taxes. You don’t “buy” social security. You pay a tax, and then you eventually are paid money by the government.

This isn’t how the current healthcare bill is structured, I don’t believe.