OBAMA/TRUMPCARE MEGATHREAD

[Balta1701]

Let me switch constitutional law professors here.

When uninsured individuals get sick, they borrow money from their families to pay for the costs of health care. They buy over-the-counter medicines. Above all, they go to emergency rooms and demand medical services. In 2008 these demands cost hospitals some $43 billion. All of these are significant effects on interstate commerce.

 

But according to Judge Hudson's decision striking down the individual mandate, these effects on commerce are completely irrelevant and Congress cannot take any of them into account. Congress cannot regulate uninsured individuals, Judge Hudson explained, because these individuals are not doing anything when they fail to buy insurance -- yet they are borrowing money, purchasing drugs, or visiting emergency rooms instead.

 

This is pure sophistry. Such arguments are reminiscent of the constitutional struggles over the New Deal, when the Supreme Court's conservative majority argued that no matter how great an effect labor strikes had on the national economy, Congress could not regulate working conditions because their effects on interstate commerce were only indirect. Judge Hudson's decision is yet another example of a long line of formalist jurisprudence that is blinkered to reality.

 

Judge Hudson's other major argument was that Congress cannot justify the individual mandate under its powers to tax and spend for the general welfare. The individual mandate is a tax imposed on people who do not purchase health care; it is part of the Internal Revenue Code and is collected by the I.R.S. However, Judge Hudson argued that Congress had no power to pass the individual mandate under the General Welfare Clause because Congress used the word "penalty" and not the word "tax."

 

This is, if anything, even worse sophistry, a sort of constitutional game of Simon Says. To make his case, Judge Hudson was forced to dredge up jurisprudence from the court's Lochner Era, which has been discredited since the New Deal.

[Jenksismyhero]

Let me ask this...where in the constitution do we get the concept that the commerce clause's power ends at the point where it requires purchase of a product? You've granted that the Congress has a right to ban products, which is something not explicitly given by the constitution. The only way this judge was able to write his decision was to basically throw out the necessary and proper clause, such that he could say that Congress didn't have the authority to come up with laws regulating interstate commerce that aren't specifically allowed by the constitution.

 

The judge himself couldn't make the argument that you're trying to make if he admitted that the Congress had a right to make laws that it deems necessary to regulating interstate commerce. If Congress has the authority to write laws necessary and proper to the regulation of interstate commerce, then Congress is fully within its rights to require purchase of a particular product.

 

Because the entire basis for Congress' power under the clause is regulating interstate commerce! Banning products is regulating items that would effect interstate commerce. Sitting on your ass at home not buying health insurance doesn't effect interstate commerce, thus there's no basis for Congress to regulate it.

 

You're completely ignoring the gigantic distinction he's making - interstate commerce requires activity. Here there is none. Thus Congress has no authority to regulate inactivity that doesn't effect interstate commerce.

[Jenksismyhero]

Let me switch constitutional law professors here.

 

Honestly, if you truly believe that bulls*** logic train, Congress could regulate ANYTHING in your life.

[Balta1701]

For one more, here's a summary of an early 20th century decision by the Court on how the government could require people to be subject to things like vaccinations even though declining to participate was not engaging in the activity.

Near the end of his opinion, Judge Hudson raises a separate constitutional concern, almost as an afterthought. “At its core, this dispute is not simply about regulating the business of insurance – or crafting a system of universal health insurance coverage – it’s about an individual’s right to choose to participate.” Here he echoes the Florida Attorney General, who frankly argued for a substantive constitutional right “to make personal healthcare decisions without governmental interference.”

 

The Supreme Court rejected the purported “inherent right of every freeman to care for his own body and health in such way as to him seems best” in 1905, in Jacobson v. Massachusetts. The claimant there asserted that mandatory smallpox vaccination violated his rights. It is true that vaccination was an imposition on his liberty. Dying of smallpox is also an imposition on one’s liberty.

[StrangeSox]

Because the entire basis for Congress' power under the clause is regulating interstate commerce! Banning products is regulating items that would effect interstate commerce. Sitting on your ass at home not buying health insurance doesn't effect interstate commerce, thus there's no basis for Congress to regulate it.

 

You're completely ignoring the gigantic distinction he's making - interstate commerce requires activity. Here there is none. Thus Congress has no authority to regulate inactivity that doesn't effect interstate commerce.

 

Doesn't it, though?

[G&T]

For one more, here's a summary of an early 20th century decision by the Court on how the government could require people to be subject to things like vaccinations even though declining to participate was not engaging in the activity.

 

That was a state law under the police powers...and the vaccination was free...and the law was meant to be enforced in an epidemic.

Edited December 15, 2010 by G&T

[Jenksismyhero]

Doesn't it, though?

 

How?

 

Again, if you want to take the bulls*** logic train of the person Balta cited, then God help us all because Congress could regulate ANYTHING under the commerce clause. You all might like that (government saves!) but I sure as hell don't.

[Balta1701]

Have you actually made an argument against that logic rather than just swearing at it?

[StrangeSox]

How?

 

How could medical costs not effect interstate commerce?

 

Again, if you want to take the bulls*** logic train of the person Balta cited,

 

Tell me where the logic is bulls***. To me it looks like you're arguing from consequences.

 

then God help us all because Congress could regulate ANYTHING under the commerce clause. You all might like that (government saves!) but I sure as hell don't.

 

I'm not offering an opinion on whether or not that's a good thing, but that's irrelevant to whether or not it's a Constitutional thing. I don't know if they can or not, I don't know if this judge's reasoning was sound or not. It seems to me that maybe he should have recused himself, but I'm not seeing much analysis of the decision here. Probably because it is such a gray area.

 

 

[Jenksismyhero]

Have you actually made an argument against that logic rather than just swearing at it?

 

She's saying that inactivity which MIGHT later lead to activity effects interstate commerce. She's changing the standard from "demonstrable effect on interstate commerce" PLUS activity to "any conceivable potential effect on interstate commerce" EVEN WITHOUT ACTIVITY. Somehow she's saying this judge got it wrong because he got the law wrong even though she clearly doesn't apply the law correctly.

 

If you guys would READ the opinion instead of relying on blogger commentary you'd have seen his LEGAL ANALYSIS.

Edited December 15, 2010 by Jenksismybitch

[Balta1701]

I'm not seeing much analysis of the decision here. Probably because it is such a gray area.

Isn't that what we've been doing for the last page?

[Balta1701]

It's completely obvious. She's saying that inactivity which MIGHT later lead to activity effects instate commerce. She's changing the standard from "demonstrable effect on interstate commerce" to "any conceivable potential effect on interstate commerce." Somehow she's saying this judge got it wrong because he got the law wrong even though she clearly doesn't apply the law correctly.

But there is no written legal opinion which sets the standard as "Demonstrable effect on insterstate commerce" as you just wrote it. The correct standard is "Necessary and proper to the regulation of interstate commerce". Your wording is substantially more strict than the constitution.

[G&T]

I'm not offering an opinion on whether or not that's a good thing, but that's irrelevant to whether or not it's a Constitutional thing. I don't know if they can or not, I don't know if this judge's reasoning was sound or not. It seems to me that maybe he should have recused himself, but I'm not seeing much analysis of the decision here. Probably because it is such a gray area.

 

I provided analysis of the Michigan case which would be instructive in this conversation. You would see where the Michigan court made up its rule as well.

[StrangeSox]

Sorry, I was referring to Jenks' posts, not the thread in general.

[StrangeSox]

Would UHC be similarly Unconstitutional under this ruling?

[Balta1701]

Would UHC be similarly Unconstitutional under this ruling?

No, because rather than mandating a purchase, the government would be itself providing a service paid for through a tax (although if you follow this judge's logic, taxes are unconstitutional if you don't call them taxes in your public statements).

[Jenksismyhero]

But there is no written legal opinion which sets the standard as "Demonstrable effect on insterstate commerce" as you just wrote it. The correct standard is "Necessary and proper to the regulation of interstate commerce". Your wording is substantially more strict than the constitution.

 

You're ignoring the law and confusing two areas of the law as being one. The Necessary and Proper clause only extends to existing enumerated powers of Congress. Here that's the commerce clause. The standard for the commerce clause is a demonstrable effect on interstate commerce AND activity (this judge, citing to two Supreme Court decisions). He ruled this provision didn't involve activity and didn't effect interstate commerce.

[Rex Kickass]

Thought this was interesting:

 

http://blogs.forbes.com/rickungar/2011/01/...s-to-obamacare/

 

The first statistics are coming in and, to the surprise of a great many, Obamacare might just be working to bring health care to working Americans precisely as promised.

 

The major health insurance companies around the country are reporting a significant increase in small businesses offering health care benefits to their employees.

 

Why?

 

Because the tax cut created in the new health care reform law providing small businesses with an incentive to give health benefits to employees is working.

 

We certainly did not expect to see this in this economy,” said Gary Claxton, who oversees an annual survey of employer health plans for the nonprofit Kaiser Family Foundation. “It’s surprising.”

 

 

United Health Group, Inc., the nation’s largest health insurer, added 75,000 new customers working in businesses with fewer than 50 employees.

 

Coventry Health Care, Inc., a large provider of health insurance to small businesses, added 115,000 new workers in 2010 representing an 8% jump.

 

Blue Cross Blue Shield of Kansas City, the largest health insurer in the Kansas City, Mo. area, reports an astounding 58% increase in the number of small businesses purchasing coverage in their area since April, 2010-one month after the health care reform legislation became law.

 

“One of the biggest problems in the small-group market is affordability,” said Ron Rowe, who oversees small-group sales for the Kansas City operation for Blue Cross Blue Shied. “We looked at the tax credit and said, ‘this is perfect.”

[StrangeSox]

REPEAL NOW.

[Y2HH]

REPEAL NOW.

 

Or perhaps, even better, employ and apply some common sense to the situation.

 

There are good portions of that bill, do NOT repeal those.

 

There are bad portions of that bill, DO repeal those.

 

Don't ask me which are good or which are bad, do the research for yourself. Anyone that thinks 100% of the bill is good OR bad is 100% ignorant.

 

After which, begin strict oversight on doctors, hospitals and pharma, in what they charge, and why they charge it. If it's justifiable, fine...if not, do something about it. Insurance reform is a good, albeit minor first step.

 

Now, the harder steps must be taken for any of this to matter.

[Balta1701]

I found this an interesting bit of research from Forbes.

In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

 

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.

[BigSqwert]

I found this an interesting bit of research from Forbes.

Who knew the Founding Fathers were socialists?

[Jenksismyhero]

I found this an interesting bit of research from Forbes.

 

Lol at this part:

 

While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.

 

Yes, the law at that time required only merchant sailors to purchase health care coverage. Thus, one could argue that nobody was forcing anyone to become a merchant sailor and, therefore, they were not required to purchase health care coverage unless they chose to pursue a career at sea.

 

However, this is no different than what we are looking at today.

 

Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.

 

So, choosing no employment is the same as choosing not to be employed in one particular job. Riighhhtttt....

 

Terrible article.

[Y2HH]

NM, re-read this a few times...

 

Meh.

 

Talk about a stretch to make it "the same", when its not.

[Jenksismyhero]

Anyone know the story behind this waiver/exemption situation? Why does it exist?

 

http://cnsnews.com/news/article/obamacare-...cized-should-be