OBAMA/TRUMPCARE MEGATHREAD

[NorthSideSox72]

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

 

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

Those are pure political bulls***, and I hope Congress overturns them.

 

[Balta1701]

A federal judge in Florida has struck down as unconstitutional key parts of the sweeping health care reform bill championed by President Barack Obama. Officials in Florida and 25 other states are challenging sections of the Patient Protection and Affordable Care Act, including the "individual mandate" requiring most Americans to purchase health insurance in four years or face stiff penalties.

This is the big case, brought in Florida by about 20 attorneys general. The Judge also ruled that the individual mandate could not be separated from the remainder of the bill (true) and so struck down the whole thing.

[Soxbadger]

Not sure how that ruling would work, unless they are going to argue that only the states have the right to enact such legislature (would be quite the bizarre result).

 

Basically we already know that a state can require insurance as long as they can make up some bogus excuse that the insurance is related to a privilege (ie the mandatory auto insurance requirement is based on the fact that driving is a privilege.) Thus its clear that a state can require mandatory insurance if its enacted properly. I would assume that the federal govt can do the same thing, provided that the federal govt rests it on the similar grounds.

 

If the US Supreme Court does get involved this is going to be a political nightmare decision, because if they take away the power for the fed, there are going to be other laws/rules that come under attack. I cant see the Supreme Court eroding the the federal power that much, but maybe.

Edited January 31, 2011 by Soxbadger

[Balta1701]

Direct quote from the decision:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

Think he's giving someone a shoutout there?

[Soxbadger]

A quote like that makes me sad to be in the same profession as the Judge because it shows a complete fundamental lack of understanding about the Boston Tea Party.

 

Its not that the tax itself that people were against,it was the "NO TAXATION WITHOUT REPRESENTATION."

 

Unlike the current US govt, the colonials did not have representation in the British parliament. The entire Revolutionary War was over the fact that we did not have representation in parliament and therefore the tax was unfair because the British were taxing American colonists and the colonists had no real rights or representation in the British govt.

 

Now lets apply those facts to the current situation.

 

The Health Care bill was passed by the US congress, which is made up of (wait for it), Representatives. Thus when the Health Care Bill was passed, there was representation for the people and thus distinguishable from the Boston Tea Party (laws created with no representation.)

 

Poor reasoning that shows a complete and fundamental misunderstanding of our history.

 

A much more compelling (and why this law can not be overturned judicially) would be that the US has the right to create drug/consumption laws therefore the US has the right to create health laws.

 

If the US does not have the right to force me to buy health insurance, citing that it is for the health and welfare of society, than it doesnt have the right to stop me from injecting heroin and topping it off with some cocaine.

 

Either the US has the right to create laws for the health and welfare of society, or it doesnt.

 

Im fine either way, but I have a feeling the people who are adamantly against the insurance law arent going to be favorable to legalizing every illegal substance either.

Edited January 31, 2011 by Soxbadger

[BigSqwert]

A quote like that makes me sad to be in the same profession as the Judge because it shows a complete fundamental lack of understanding about the Boston Tea Party.

 

Its not that the tax itself that people were against,it was the "NO TAXATION WITHOUT REPRESENTATION."

 

Unlike the current US govt, the colonials did not have representation in the British parliament. The entire Revolutionary War was over the fact that we did not have representation in parliament and therefore the tax was unfair because the British were taxing American colonists and the colonists had no real rights or representation in the British govt.

 

Now lets apply those facts to the current situation.

 

The Health Care bill was passed by the US congress, which is made up of (wait for it), Representatives. Thus when the Health Care Bill was passed, there was representation for the people and thus distinguishable from the Boston Tea Party (laws created with no representation.)

 

Poor reasoning that shows a complete and fundamental misunderstanding of our history.

 

A much more compelling (and why this law can not be overturned judicially) would be that the US has the right to create drug/consumption laws therefore the US has the right to create health laws.

 

If the US does not have the right to force me to buy health insurance, citing that it is for the health and welfare of society, than it doesnt have the right to stop me from injecting heroin and topping it off with some cocaine.

 

Either the US has the right to create laws for the health and welfare of society, or it doesnt.

 

Im fine either way, but I have a feeling the people who are adamantly against the insurance law arent going to be favorable to legalizing every illegal substance either.

 

Post of the day

 

[NorthSideSox72]

Not sure how that ruling would work, unless they are going to argue that only the states have the right to enact such legislature (would be quite the bizarre result).

 

Basically we already know that a state can require insurance as long as they can make up some bogus excuse that the insurance is related to a privilege (ie the mandatory auto insurance requirement is based on the fact that driving is a privilege.) Thus its clear that a state can require mandatory insurance if its enacted properly. I would assume that the federal govt can do the same thing, provided that the federal govt rests it on the similar grounds.

 

If the US Supreme Court does get involved this is going to be a political nightmare decision, because if they take away the power for the fed, there are going to be other laws/rules that come under attack. I cant see the Supreme Court eroding the the federal power that much, but maybe.

There is nothing bogus about it - it is a fundamental legal tenet.

 

Driving is a privilege, and the insurance directly relates to internalizing the externalities of the risks a driver puts on those around them.

 

Living is a right, as is citizenry when falling under 14A. By saying everyone has to buy insurance just to exist, and when health care is not specifically enumerated in the Constitution as a cost born to its citizens, then you are taxing a right and its not Constitutionally valid from that point of view.

 

Now, I think its more complicated than that... but for you to simply dismiss the difference between legal right and legal privilege, and to dismiss the important lack of justification of cost burden for product purchace in the text, is just choosing to ignore legal reality.

 

[StrangeSox]

A quote like that makes me sad to be in the same profession as the Judge because it shows a complete fundamental lack of understanding about the Boston Tea Party.

 

Its not that the tax itself that people were against,it was the "NO TAXATION WITHOUT REPRESENTATION."

 

Unlike the current US govt, the colonials did not have representation in the British parliament. The entire Revolutionary War was over the fact that we did not have representation in parliament and therefore the tax was unfair because the British were taxing American colonists and the colonists had no real rights or representation in the British govt.

 

Now lets apply those facts to the current situation.

 

The Health Care bill was passed by the US congress, which is made up of (wait for it), Representatives. Thus when the Health Care Bill was passed, there was representation for the people and thus distinguishable from the Boston Tea Party (laws created with no representation.)

 

Poor reasoning that shows a complete and fundamental misunderstanding of our history.

 

A much more compelling (and why this law can not be overturned judicially) would be that the US has the right to create drug/consumption laws therefore the US has the right to create health laws.

 

If the US does not have the right to force me to buy health insurance, citing that it is for the health and welfare of society, than it doesnt have the right to stop me from injecting heroin and topping it off with some cocaine.

 

Either the US has the right to create laws for the health and welfare of society, or it doesnt.

 

Im fine either way, but I have a feeling the people who are adamantly against the insurance law arent going to be favorable to legalizing every illegal substance either.

 

[Soxbadger]

There is nothing bogus about it - it is a fundamental legal tenet.

 

Driving is a privilege, and the insurance directly relates to internalizing the externalities of the risks a driver puts on those around them.

 

Living is a right, as is citizenry when falling under 14A. By saying everyone has to buy insurance just to exist, and when health care is not specifically enumerated in the Constitution as a cost born to its citizens, then you are taxing a right and its not Constitutionally valid from that point of view.

 

Now, I think its more complicated than that... but for you to simply dismiss the difference between legal right and legal privilege, and to dismiss the important lack of justification of cost burden for product purchace in the text, is just choosing to ignore legal reality.

 

I think you missed the intent of that comment.

 

I mean that if the federal govt can some how say that health insurance is related to a privilege.

 

I was using car insurance as an already accepted mandatory insurance, and saying that all the federal govt has to do is cloak the health insurance argument the same way, and they should win. The term "bogus" was meant to apply to the unknown reason the govt will use to tie health insurance to a privilege.

 

I personally think there is no way to overturn the law without putting a lot of other federal laws at risk. Due to that, I am going to predict that the SC will uphold the law, even though on this issue they would be more inclined to overturn it.

 

So i wasnt ignoring it at all, I was basically saying that the govt will come up with some reason to make it work. Just like they do with the commerce clause, or any other time they need the federal law to go further than it may have originally been intended.

 

I didnt want to speculate on how they would argue its based on privilege but my guess is that they will say going to hospitals which are federally funded are a privilege and therefore in order to use the hospital system you must have insurance.

Edited January 31, 2011 by Soxbadger

[Balta1701]

Btw, just so you don't think I'm going to reflexively disagree with everything the judge wrote...he's probably pretty much right on one part...the notion that you can't separate the individual mandate from the rest of the law (unlike the last judge that struck down that provision).

I just checked in with Louis Seidman, a professor of constitutional law at Georgetown University, to get his thoughts on the ruling.

 

* Seidman skewered one of the ruling's core findings -- that the individual mandate is unconstitutional because it constitutes regulating economic inactivity. He argued that the constitution's "necessary and proper clause" explicitly provides for the regulation of anything that "has an effect" on interstate markets.

 

"If Congress wants to mandate that insurance companies not discriminate against people with preexisting conditions, then Congress could rationally think it's necessary to make sure that people participate in the insurance market" to make the ban on discrimination function properly, he said.

 

* Seidman, interestingly, said he thought the judge's most controversial decision -- that the mandate is not severable from the overall law, suggesting it needs to be tossed out entirely -- had something to it.

 

"My own sense about that is that he's probably right," Seidman said. "The various segments of the law are sufficiently intertwined that it's very hard to cut out the mandate and leave the rest unaffected. If [the mandate] is unconstitutional then I tend to agree that you can't just sort of surgically remove one part of it and leave the rest intact."

 

When I pointed out that there are other legislative means to replicate the mandate, calling into question whether the whole law should be scrapped, he argued that this isn't for the courts to do.

 

* And finally, Seidman said the decision doesn't matter a whit in the end.

 

"There is one person in the United States who will decide on this law, and that's Anthony Kennedy," Seidman said. "He's not going to be unduly influenced by what a district judge in Florida says. All of this is just scrimmaging."

 

Seidman said that Kennedy's previous decisions make it impossible to predict how he'll rule on the individual mandate when it comes before the Supreme Court. Kennedy has sided with the majority in favor of invalidating a law based on a "commerce clause" challenge, Seidman says, but he has also twice come through with a fairly broad reading of the "necessary and proper clause," suggesting he could go either way.

 

"He's likely to be affected by what the political atmosphere is at the time," Seidman said. "It's going to matter to him whether it looks like the whole law is a mess and needs to be put out of its misery, or whether it looks like it's actually starting to work."

 

So there you have it.

 

UPDATE, 4:57 p.m.: To clarify, my sense was that Seidman was not full-throatedly endorsing the idea that the entire law should be ruled unconstitutional if the mandate is, but rather that the mandate does not exist in isolation and that it's not severable from other key provisions.

[NorthSideSox72]

I think you missed the intent of that comment.

 

I mean that if the federal govt can some how say that health insurance is related to a privilege.

 

I was using car insurance as an already accepted mandatory insurance, and saying that all the federal govt has to do is cloak the health insurance argument the same way, and they should win. The term "bogus" was mean to apply to the unknown reason the govt will use to tie health insurance to a privilege.

 

I personally think there is no way to overturn the law without putting a lot of other federal laws at risk. Due to that, I am going to predict that the SC will uphold the law, even though on this issue they would be more inclined to overturn it.

 

So i wasnt ignoring it at all, I was basically saying that the govt will come up with some reason to make it work. Just like they do with the commerce clause, or any other time they need the federal law to go further than it may have originally been intended.

 

I didnt want to speculate on how they would argue its based on privilege but my guess is that they will say going to hospitals which are federally funded are a privilege and therefore in order to use the hospital system you must have insurance.

 

How can they possibly make this related to a privilege, when its EVERYONE? Also, what others laws do you think it would endanger?

 

 

 

[Soxbadger]

How can they possibly make this related to a privilege, when its EVERYONE?

 

You dont have to use hospitals that receive govt funding. I just assume that the majority of hospitals do receive some sort of state/govt funding for research etc. And once again, I termed it as "bogus" you are now trying to get me to argue a point that I dont necessarily agree with, thus Im not just going to speculate on the many different ways I could try and cloak it as privilege. Furthermore, it could be under necessary and proper clause or commerce clause, which would give even more variations on the argument.

 

I was merely stating what we already know: "Mandatory insurance clauses have been allowed" and trying to figure out how the US govt would perhaps argue that this is the same. Im not in any way shape or form representing the US govt, I am merely speculating on what I would expect.

 

As for what other laws, it depends on the how the SC rules.

 

If they rule that Congress cannot pass a law that takes away a right, I would think that you would see a lot of cases trying to argue that drug laws are unconstitutional. Citizens have the right to eat,why can the govt restrict what we eat? If they erode commerce clause, it may be something different.

 

Its hard to try and predict what the SC will do and then predict what the ramifications of the predicted ruling are.

 

Which is why my post is nothing more than trying to read tea leaves and give some opinions based on the limited knowledge that I have. It may be right, it may be wrong, but its just my opinion.

[Balta1701]

How can they possibly make this related to a privilege, when its EVERYONE? Also, what others laws do you think it would endanger?

A few possible examples.

 

In the 1790's, George Washington signed the Militia Act, which required all males age 18-45 to purchase a firearm so that they could be prepared in the event of calling up of the militia.

 

Along those same lines...the Secret Service Act is a regulation of non-activity. It is not a regulation of economic non-activity, but instead, a regulation of non-activity in the sense of actions necessary and proper to a well-regulated militia. It might not pass the Supreme Court test, but I think you could easily see a lower court striking down Selective Service based on that ruling.

 

The Civil Rights acts have in essence regulated non-economic activity, because turning away a person from my establishment on the grounds that they're black/handicapped/NSS72 is not actively engaging in commerce; it's affecting someone else's ability to engage in commerce.

 

Congress at the Federal Level has also mandated insurance purchases in several cases, such as flood insurance at certain locations or insurance against catastrophe for nuclear power plants. Here, you'd be pushing up a definition of exactly what counts as regulatable economic activity; if the fact that some people do not participate in the health care system at some times means that health care inactivity cannot be regulated, then the fact that people in floodplains or nuclear power plants do not actively need help with floods or meltdowns at all times means that those requirements are regulations against inactivity. You could potentially re-write the nuclear power one as a requirement if they choose to sell power from a certain type of plant, such that it is regulating the sale of the power and not the generation of the power, but the law is not likely written that way right now.

 

Finally, the way Congress wrote the bill, the individual mandate and fine is written as a tax requirement (although wasn't called that), which is required to be paid as part of taxes. You would definitely get a challenge on Congress's ability to require people to file tax returns, because the Court would be stripping Congress of its power to require payment based on responses to tax returns.

[southsider2k5]

A few possible examples.

 

In the 1790's, George Washington signed the Militia Act, which required all males age 18-45 to purchase a firearm so that they could be prepared in the event of calling up of the militia.

 

Along those same lines...the Secret Service Act is a regulation of non-activity. It is not a regulation of economic non-activity, but instead, a regulation of non-activity in the sense of actions necessary and proper to a well-regulated militia. It might not pass the Supreme Court test, but I think you could easily see a lower court striking down Selective Service based on that ruling.

 

The Civil Rights acts have in essence regulated non-economic activity, because turning away a person from my establishment on the grounds that they're black/handicapped/NSS72 is not actively engaging in commerce; it's affecting someone else's ability to engage in commerce.

 

Congress at the Federal Level has also mandated insurance purchases in several cases, such as flood insurance at certain locations or insurance against catastrophe for nuclear power plants. Here, you'd be pushing up a definition of exactly what counts as regulatable economic activity; if the fact that some people do not participate in the health care system at some times means that health care inactivity cannot be regulated, then the fact that people in floodplains or nuclear power plants do not actively need help with floods or meltdowns at all times means that those requirements are regulations against inactivity. You could potentially re-write the nuclear power one as a requirement if they choose to sell power from a certain type of plant, such that it is regulating the sale of the power and not the generation of the power, but the law is not likely written that way right now.

 

Finally, the way Congress wrote the bill, the individual mandate and fine is written as a tax requirement (although wasn't called that), which is required to be paid as part of taxes. You would definitely get a challenge on Congress's ability to require people to file tax returns, because the Court would be stripping Congress of its power to require payment based on responses to tax returns.

 

I'd pay to see the reaction if this were proposed today.

[NorthSideSox72]

I'd pay to see the reaction if this were proposed today.

Its also an irrelevant example because the military and drafting of military resources are specifically called for in the Constitution.

 

[mr_genius]

The health insurance mandate has to be a tax if anything. I definitely don't want to go down this bulls*** path of forcing people to buy f***ing corporate services.

Edited February 1, 2011 by mr_genius

[NorthSideSox72]

The health insurance mandate has to be a tax. I definitely don't want to go down this bulls*** path of forcing people to buy f***ing corporate services.

Then make it a tax, and call it what it actually is - the federal government electing to turn health care provision into a semi-government run interest. Don't make it a product purchase, as it stands now, which sets the table for it to be killed.

 

The whole approach they took here was just stupid.

 

[StrangeSox]

Just give us single-payer and be done with all this bulls***.

[Balta1701]

Then make it a tax, and call it what it actually is - the federal government electing to turn health care provision into a semi-government run interest. Don't make it a product purchase, as it stands now, which sets the table for it to be killed.

 

The whole approach they took here was just stupid.

It is a tax, at least as far as the letter of the law is concerned, that's one of the reasons it is so long. It's a tax return item where you pay the "fee" if you haven't made the purchase, whereas you receive an equivalent credit if you have made the purchase.

 

The only reason why people can legitimately say "It's not a tax!" is that they say crap like that for public consumption since taxes are bad and the finger thing means the taxes.

 

If you've really paid attention to either of these rulings though...both of them have justified saying that it's not a tax because of public statements of the defenders, not because of anything actually written in the law. The law itself has the structure of a tax, they just didn't use that word for focus group reasons. That's one of the reasons why these decisions are getting ridiculed; you can't decide that something is unconstitutional based on people's statements about a law, you have to actually decide based on the letter of the law.

[NorthSideSox72]

It is a tax, at least as far as the letter of the law is concerned, that's one of the reasons it is so long. It's a tax return item where you pay the "fee" if you haven't made the purchase, whereas you receive an equivalent credit if you have made the purchase.

 

The only reason why people can legitimately say "It's not a tax!" is that they say crap like that for public consumption since taxes are bad and the finger thing means the taxes.

 

If you've really paid attention to either of these rulings though...both of them have justified saying that it's not a tax because of public statements of the defenders, not because of anything actually written in the law. The law itself has the structure of a tax, they just didn't use that word for focus group reasons. That's one of the reasons why these decisions are getting ridiculed; you can't decide that something is unconstitutional based on people's statements about a law, you have to actually decide based on the letter of the law.

I simply don't agree with your interperetation of this. Forcing people (all people) to buy a product is not the same as a tax. And this doesn't come from talking points or anything of the sort, its simply the way the Constitution and the law are laid out.

 

Name for me a "tax" that is the mandatory purchase of an individual product.

 

 

[Balta1701]

I simply don't agree with your interperetation of this. Forcing people (all people) to buy a product is not the same as a tax. And this doesn't come from talking points or anything of the sort, its simply the way the Constitution and the law are laid out.

 

Name for me a "tax" that is the mandatory purchase of an individual product.

A great example is mortgage interest. If a homeowner receives a tax credit for mortgage interest payments, then people who do not pay mortgage interest are paying a tax for not purchasing a mortgage. The mortgage interest tax deduction is just as much a tax on people who do not purchase a mortgage.

 

It's considered to be a tax credit...which is exactly the same thing as having a tax which exists if I don't purchase a product like health insurance. No one calls it the "Non-homeownership-tax", but the letter of the law is the same.

[NorthSideSox72]

A great example is mortgage interest. If a homeowner receives a tax credit for mortgage interest payments, then people who do not pay mortgage interest are paying a tax for not purchasing a mortgage. The mortgage interest tax deduction is just as much a tax on people who do not purchase a mortgage.

 

It's considered to be a tax credit...which is exactly the same thing as having a tax which exists if I don't purchase a product like health insurance. No one calls it the "Non-homeownership-tax", but the letter of the law is the same.

That's not a great example, because its not an example of what I asked.

 

So again... name for me a tax that is a mandate to purchase a product.

 

[Balta1701]

That's not a great example, because its not an example of what I asked.

 

So again... name for me a tax that is a mandate to purchase a product.

How is that not applicable? It is a higher tax rate paid by not purchasing a certain type of product. That's exactly what the individual mandate is; a $700 or so tax if you don't purchase a certain type of product.

 

Are you defining the word "Mandate" in a different way here? If you choose not to purchase health insurance, you're required to pay a higher tax rate. There's no criminal penalties or anything, it's a tax for which you receive credit if you make a certain qualifying purchase.

[NorthSideSox72]

How is that not applicable? It is a higher tax rate paid by not purchasing a certain type of product. That's exactly what the individual mandate is; a $700 or so tax if you don't purchase a certain type of product.

 

Are you defining the word "Mandate" in a different way here? If you choose not to purchase health insurance, you're required to pay a higher tax rate. There's no criminal penalties or anything, it's a tax for which you receive credit if you make a certain qualifying purchase.

You really don't see the difference between tax INCENTIVES to purchase something (like a home), and a MANDATE requiring you buy a certain product?

 

Paying higher tax rate because of a difference in deductions is NOT the same as a mandate. What gave you that idea?

 

[Balta1701]

You really don't see the difference between tax INCENTIVES to purchase something (like a home), and a MANDATE requiring you buy a certain product?

 

Paying higher tax rate because of a difference in deductions is NOT the same as a mandate. What gave you that idea?

No, I really do not see the difference. In either case, the person who does not purchase the privately-owned product pays a higher tax rate than the person who does.

 

In both cases, there is a tax advantage for purchasing a certain type of qualifying, privately-owned product.

 

The structure of the law is/should be identical for both of them. You set the general tax rate, you specify the type of purchases that qualify for the tax credit, and if people make those qualifying purchases, they receive a lower tax rate.

 

If I choose not to purchase insurance, the tax penalty is actually smaller than the tax penalty for not having a mortgage at most interest rates.