What happens when the mandate gets to the Supreme Court?

[hansberrym]

Does amyone honestly believe the Commerce Clause give Congress the power to force individual citizens to buy a product?

The left wing of the court will be in a tight spot to say the least. They know that the HCR plan relies on all being forced to buy so they will be under extreme pressure to bail out congressional Dems, but the absurdity of a ruling in favor of a supposed power to force American citizens to purchase anything may cause as much division on the court as it has in Congress.


Can one honestly argue that a person engages in commerce simply by being alive?

[yodoobo]

1. It may not reach the Supreme Court

And if it does it'll be a slam dunk win.

Buying health insurance will be voluntary.

Those who don't buy it will be subject to a tax. We'll call it a fine, but its really a tax.

The power to tax for voluntary behaviors is very well established.


Its highly likely that the SC will not even grant cert as this is ground that has been well covered.

[conscious evolution]

3. You really believe the SC

will render a judgement that is not beholden to corporate interests?
Bwahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahahaha!

[yodoobo]

14. And there is that angle too.

(we are in agreement, but your posts reads like you disagree with me)

[hansberrym]

9. What voluntary behavior? Breathing?

The 16th amendment gives Congress the power to tax incomes, and Congress has always had the power to levy excise taxes, but the mandate is not on incomes or on things purchased, but rather a direct tax on individuals. Congress does not have that power.

[yodoobo]

12. perhaps you should re-read the post

There is PLENTY of precedent for taxes or tax breaks based on behavior.

Just a few months ago many of us enjoyed a nice tax break for buying a car.

Do you rent? If so do you enjoy paying extra taxes so that you home owning neighbors get a tax break?

How the sales tax? Every time you buy something you get taxed for that behavior.

Own a home? Bam you pay taxes because of that behavior.


This ground is so well covered its not even close.

[hansberrym]

25. What behavior are you talking about? Are you saying not buying insurance is a behavior? n/t

[yodoobo]

39. choosing not to buy would be an activity

But activities are just one example. A good enough one, but there are others.

We also tax based on physical condition.

Individuals are who are not blind pay more tax than those who are.

Individuals who are under 65 pay more tax.

http://www.bankrate.com/finance/money-guides/special-deductions-for-elderly-and-blind-filers.aspx

Is NOT filing a 1040 Return an activity? Give a try and let us know how it works out for you.


Refusing to do your duty and help insure yourself and others is as good as reason to tax as anything else. A SC challenge is going to be a complete non-started. (thats not even taking into account the nature of the current court)

[girl gone mad]

81. You're comparing apples to oranges.

No one should have a "duty" to buy private health insurance.

[NYC Liberal]

32. A couple of problems with your post:

The 16th amendment gives Congress the power to tax incomes

No, it doesn't. Congress has had the power to tax incomes since the ratification of the Constitution. The only question before the 16th Amendment was ratified was if and how income taxes had to be levied. Income taxes that were considered indirect excises had to be geographically uniform; income taxes that were considered "direct taxes" on things like the value of property had to be apportioned according to population.

the mandate is not on incomes or on things purchased, but rather a direct tax on individuals. Congress does not have that power.

Yes it does.

[hansberrym]

34. Art 1, Sec 9, clause 4.

Clause 4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.




Congress does not have the power to levy direct taxes, except income taxes as per 16th amendment.

[yodoobo]

40. And it will be part of the income tax

Those who refuse to participate will pay more income taxes.

[hansberrym]

45. What about those who do not have an income?

My guess is that congress will rewrite as an income tax to make it legal. But then it will not touch those who do not have any income, nor those who do not have taxable income.

[Orangepeel]

63. people who don't make enough to file are exempt from the penalty

[NYC Liberal]

58. Really?

Maybe this will help you: http://www.irs.gov/app/understandingTaxes/student/whys_thm04_les04.jsp">Lesson 4: Direct and Indirect Taxes and http://www.irs.gov/app/understandingTaxes/whys/thm04/les04/ac1_thm04_les04.jsp">this.

[hansberrym]

59. What is that supposed to help me with?

What are you claiming?

[girl gone mad]

77. I think it will reach the SC if it isn't altered by Congress in the mean time.

This mandate is absolutely unprecedented. The federal government is not in the practice of forcing Americans to purchase private goods and services.

Some compare this to auto insurance, but that's a discretionary purchase.

[yodoobo]

84. No one is being forced

If you don't buy, you just get charged an extra tax.

[Skinner]

2. Uh, it hasn't really caused that much division in Congress...

...other than the fairly predictable division between Republicans and Democrats.

The liberal wing of the court won't be in a tight spot at all. They'll support it if it goes to the Court. I suspect a majority of the court will support it as well.

I don't even think it'll be a tough call for most. Health care is a huge part of our economy. It's covered under the commerce clause.

[hansberrym]

17. Food production is a big part of our economy, housing is a big part of our economy.

Are you really saying that Congress has the power to force us to buy a house or force us to buy food?

"It's covered under the commerce clause" is indeed the argument being made by Congress, but they will need to have something more detailed than that assertion when they get to court.

[Skinner]

19. I'm not saying that Congress has the power to force us to buy food or a house.

What I'm saying is that Congress has the power to force us to buy health insurance.

[Fumesucker]

48. If Congress has the power to force us to buy one product how then does it *not* imply..

That Congress has the power to force us to buy any other product?

Not trying to be difficult but that seems a given to me, I don't see how health insurance is different from any or every other product of a capitalist free market.

[girl gone mad]

79. I don't think they do, Constitutionally.

Though the Supreme Court could well rule otherwise.

http://www.csmonitor.com/Commentary/Opinion/2008/0326/p09s01-coop.html">This sums up my opinion on the matter:

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.

[msanthrope]

62. Re:Food--read the Wickard case, since that might inform your

debate.

You might not realize it, but it's pretty obvious you don't come to this debate having read anything about the Commerce Clause---and it undercuts your argument.

[Political Heretic]

21. I agree. I oppose this legislation, but find the "unconstitutional" argument to be quite weak.

As a poster below said, its an "excise tax" which is completely constitutional.

If it was buy insurance or go to jail, that wouldn't work.

But elect to buy insurance or elect to pay more in taxes - that's completely legitimate.

[Pithlet]

4. It's actually a penalty tax, or excise tax, that's levied if one doesn't buy insurance.

And there's nothing unconstitutional about it.

[hansberrym]

10. How is not buying insurance an activity? n/t

[Pithlet]

18. What? Your question doesn't even make sense. n/t

[hansberrym]

22. It would make sense if you considered the definition of "excise".

http://en.wikipedia.org/wiki/Excise


What is being bought and sold in this case? How does one levy an excise tax on a thing not purchased?

[Pithlet]

24. Point one, that's not the only definition of excise tax. But it's immaterial anyway. It's a tax.

Doesn't matter what it's called. It's a tax. One that applies to everyone. The way you don't have to pay it is to buy insurance. And "I don't like it" isn't a constitutional argument. Congress is allowed to levy taxes on us.

[hansberrym]

26. What sorts of taxes is Congress allowed to levy on us? n/t

[Pithlet]

28. Um, the kind where the government collects money?

If you think Congress doesn't have the right to levy taxes for the general welfare? Well, don't know what to say to that. Like I said. "Don't like it" isn't a constitutional argument.

[hansberrym]

33. Art 1, Sec.9, clause 4 No Capitation, or other direct, Tax shall be laid,

unless in Proportion to the Census or Enumeration herein before directed to be taken.




The 16th amendment alters that clause to allow for direct taxes on income, but the mandate is not an income tax.


I suspect if faced with a challenge they will quickly write an amendment to the bill to rewrite the "penalty" as an income tax, I don't see any alternative if they want to save the bill and avoid a commerce clause meltdown in SCOTUS.

[Pithlet]

38. .

[Pithlet]

41. But it is not a direct tax.

It is perfectly constitutional.

[hansberrym]

46. So it will be levied on the states in proportion to population? n/t

[Pithlet]

47. No. n/t

[hansberrym]

49. So if it is not a direct tax, and is not levied againt the states in proportion to

population, what sort of tax is it?

[Pithlet]

53. It's a tax levied on people who don't buy health insurance.

It's pretty simple, actually.

[hansberrym]

55. I see -you don't have a reply. n/t

[Pithlet]

57. What was wrong with my reply? n/t

[Lyric]

5. It'll take a long time before we know.

Someone has to be "injured" by the mandate before they'll have standing to sue, and since most provisions don't kick in for another 4 years, that won't happen immediately. Then it'll have to make its way through the federal court system, and the SCOTUS will have to agree to hear the case. That'll probably take years, if not a decade or more.

[hansberrym]

23. That it will take a long time for a case to get to the court will only rachet up

the stakes. If a case were heard in the near term and the mandate was set aside there might be time to try another approach.


Once HCR is going full steam and many come to depend on it, SCOTUS will be under a lot of pressure to not strike it down. On the other hand the absurdity of the commerce clause claim will not go away. Worse yet, if SCOTUS ducks the question the precedent that congress can force an individual to purchase an item will be set.

[geek tragedy]

6. That's a stupid extreme libertarian argument.

Congress has the power to tax and to regulate commerce.

[Oregone]

15. Do they have the power to force commerce?

I haven't seen a good answer to this. Regulating commercial activity that already exists is different than forcing individuals to enter a private market place and engage in commerce prior to its existence

[depakid]

31. The argument runs along the lines of internalizing costs

one analogy being fees for garbage collection and mitigation of pollutants.

[msanthrope]

65. They aren't forcing commerce--they are raising an excise tax

when you refuse to join the risk pool.

You have a choice---you can decide which one you want. Health insurance, or tax and medical bills.

[Oregone]

67. Why does "medical bills" always come with the choice of the tax

And why do you think it doesn't come with the choice of insurance?

[malaise]

7. Don't they all have drivers' licenses? n/t

[The Straight Story]

54. They might but the amish don't :) (nt)

[girl gone mad]

73. That's a public department.

We're not required to get private identification cards.

[onenote]

8. the tax laws currently reward individuals who spend money for certain products

by giving them deductions or tax credits.

Its really not a whole lot different than that.

[girl gone mad]

74. There's actually a world of difference.

But I do think it's interesting that people have a difficult time seeing it.

[madrchsod]

11. medicare is taken out of social security

my percentage will be around 20% of my check. that`s why you see a lot of old geezers working part time.

the mandate problem would be solved by a public option and or medicare for all. it would be a direct tax pd by you and your employer

[Oregone]

13. Citizen's United Redux

[treestar]

16. Read the zillions of cases on the subject first

Yep.

A guy had a field of plants in one state who sold only in one state. That was found to effect interstate commerce.

The clause has HUGE tentacles.

This can easily go under it.

[hansberrym]

20. So we can be taxed for being alive? Is that the economic activity you had in mind? n/t

[CLANG]

56. If you are homeless and destitute

you will not be required to buy insurance or pay a penalty. If that works for you, go for it.

[treestar]

78. there a many Supreme Court cases on the subject

Read them. I'm only a messenger.

[girl gone mad]

80. There is actually no Federal legal precedent here.

This is new territory.

[Xenotime]

27. Does it matter? We will own them too.

[depakid]

29. "Does amyone honestly believe the Commerce Clause give Congress the power"

Yes- pretty much everyone with any knowledge of the doctrines and interpretations in the case law does.

But that doesn't prevent people from pontificating about it right and left.

[hansberrym]

36. Which case law?

[msanthrope]

61. Why should anyone do your work for you?

If you know nothing of CC jurisprudence, then read up, man.

[hansberrym]

68. Ha ha. Somehow I don't think we all be laughing when the court says:

not buying a thing = economic activity.



If you truly believe SCOTUS has already made such a ruling, please cite. In any case, please stop acting like an ***.

[depakid]

75. The line of controlling commerce clause cases

Most recently:

Gonzales v. Raich (Congress may ban the use of cannabis even where states approve its use for medicinal purposes).

http://en.wikipedia.org/wiki/Gonzales_v._Raich

United States v. Morrison (Parts of the Violence Against Women Act of 1994 are unconstitutional because they exceeded congressional power under the Commerce Clause)

http://en.wikipedia.org/wiki/United_States_v._Morrison

United States v. Lopez (Commerce powwer exceeded by the Gun-Free School Zones Act of 1990)

http://en.wikipedia.org/wiki/United_States_v._Lopez

Basic reasoning behind them is:

Congress may regulate three broad categories under the Commerce Clause:

* the channels of interstate commerce; or
* the instrumentalities of interstate commerce, or persons or things in interstate commerce<; or[br /> * activities that substantially affect or substantially relate to interstate commerce.

[fairfaxvadem]

30. why is this any different than auto insurance laws?

You are expected to certify (at least in my state) that you are properly covered by insurance - OR, pay the Uninsured Motorist Fee.

What's the diff? If you refuse to get health insurance and yet, you get sick and end up at the emergency room, well, that's fine, but you're going to pay a tax into the pool of money that is going toward paying for your medical visit, whether it's something as simple as stitches, or something more severe.

[hansberrym]

35. Because Federal is different than state and driving is different than breathing. n/t

[ProdigalJunkMail]

37. FOR FUCK'S SAKE...STOP COMPARING THIS TO AUTO INS

there is no fucking comparison and it has been shot down here for MONTHS...FUCK!

sP

[harun]

51. I have to agree with your language on this, it isn't even F*CKING close to compare

the two. There are plenty of good arguments against the mandate, Auto Insurance being the stupidest.

[yodoobo]

42. Its not a good comparison. Health care is civil right.

and an obligation.

If you refuse to purchase insurance, you reduce the funding pool. This effectively denies OTHERS their civil right to health care.

The auto insurance thing is good enough as a talking point, but when it becomes a legal challenge the power to tax is what will save this plan.

[Ean Juan]

43. One can choose to ride the Subway or ride in someone else's car

Just saying.

[laughingliberal]

44. I drive a car by choice. My options for living without a body are limited. nt

[Motown_Johnny]

52. because nobody is forcing you to own a car. this mandate applies to everyone

[DeSwiss]

50. Well.....

...look at it this way: The State of Tennessee can require by law that I buy vehicle liability insurance as a condition of using the roads here. This action by the State of Tennessee is ostensibly a demand that I purchase insurance to protect the investment of other drivers on the road. So I don't see how anyone can argue that the federal government (which supersedes the authority of all states) cannot require that we buy health insurance.

Such a requirement protects not only my own health interest, but everyone else's through the prevention and treatment of diseases, through driving down the cost of health insurance by expanding the pool of insured, and through significantly improving the capabilities of the early detection system and treatment of disease at a point where favorable outcomes are usually higher.

- Personally I'd prefer a plan that allows Medicare For All, which would simplify the whole process and dry-up unneeded insurance scam-companies. But this is apparently the best that Washington can come up with and retain their fealty to their true masters with the cash in their deep pockets.....

[msanthrope]

60. You are not forced to buy insurance, but will be taxed on your

refusal to join the common risk pool. This is a permissible excise tax on commerce.

If you don't agree, please cite the authority under which you think SCOTUS will deny an excise tax. As in, which SCOTUS case will the court rely on. Show your work.

[hansberrym]

66. If "refusal to buy" is economic activity we are all screwed. That is my point.

The liberal members of the court will be in a very difficult spot, they will not want to strike down the HCR bill, but the alternative -calling refusal to buy a product economic activity and thus subject to Congressional regulation under the commerce clause- is the most ridiculous power grab one can imagine.



I am not aware of any case law involving Congressional authority to reguire someone to purchase an item outside of some regulated activity.
I beleive this to be new ground, and so the constitution itself is the place to look. Wiggard/Raich are maybe the closest, but those involve the act of cultivating crops, while the mandate in HCR involves not buying an item.

What activity is being regulated in your scheme that would make the mandate constitutional? To what activity does the supposed excise tax apply?


Can Congress force us to buy marijuana (Raich was a fairly extreme decision, but to claim that Commerce power extends to forcing individuals to purchase an item is beyond the pale).

[depakid]

82. You're dealing with one specific- rather than with broader concepts up the ladder of abstraction

Congress may regulate activities that have a "substantial effect" on interstate commerce, and they look to the commercial nature of the activity and to the connection between the activity and interstate commerce (among other considerations).

An individual mandate is commercial in nature--it requires folks to buy health insurance, hence a commercial exchange and it is closely related to interstate commerce. The whole argument for an individual mandate is to get "health care consumers" to internalize their costs, and not spread them to the larger interstate economy, while attempting to create efficiencies through expansion of the risk pool.

Whether Congress calls it an excise tax, fee, or mandate to buy a product- or something else is immaterial.

[WeDidIt]

64. All the mandate does is tax you if you don't buy health insurance.

Congress has the power to tax. It's right there in the constitution.

[New Dawn]

69. The super-rich own the US "justice system", which definitely supports the Individual Mandate.

[hansberrym]

70. That's what worries me, what will we be told to buy next? n/t

[luckyleftyme2]

71. well it won't be high priced gas

this vote should take the starch out of the texas tea mafia! HAVE YOU NOTICED THE PRICE OF GAS INCREASES WITH THE RIGHTS MEDIA COVERAGE!

[luckyleftyme2]

72. HOW IS THIS FOR AN ANSWER

IT SURE WILL DEFLATE THE PRICE OF FUEL-AND THE RIGHTS HOLD ON THE MEDIA

[LaydeeBug]

76. we get a public option. nt

[depakid]

83. Interestingly enough- if the far right did upend well established precedents

and rule the mandate unconstitutional, it would more or less force Congress to adopt a two tier medicare for all + private coverage situation- or risk economic ruin.

[BlueIris]

85. Sadly, I think they would probably choose to uphold it.

But I doubt they actually hear the case.