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David Rivkin and Lee Casey this week argued in a Wall Street Journal opinion piece that the mandatory insurance provision in Senator Baucus's health reform bill is unconstitutional.

The argument goes like this:

1. Congress lacks authority under the Commerce Clause to require individuals to purchase insurance, because a "health-care mandate would not regulate any 'activity.'" The authors reference United States v. Lopez and Gonzales v. Raich.

2. Because Congress can't do it under the Commerce Clause, Baucus (and other supporters of an individual mandate) have called it a tax. (Baucus's bill refers to the penalty for failure to insure an "excise tax," to be administered and collected by the IRS.)

3. But this "excise tax" is plainly a penalty, pushing the bounds of the Supreme Court's Taxing Clause jurisprudence. The authors: "The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care."

The authors are wrong on two counts. First, an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison. These cases allow Congress to 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 almost surely commercial in nature--in requiring folks to buy health insurance, it requires a commercial exchange. Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by "being an American." This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange. This is the definition of commerce.

Moreover, the individual mandate 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. A health insurance mandate is almost certainly within Congress's Commerce Clause powers, whether Congress calls it an "excise tax" or something else.

Second, Rivkin and Casey misunderstand the Taxing Power. Congress can adopt an excise tax to an end that is within its other constitutional powers, as here. But even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing "tax." See United States v. Kahriger (upholding a federal tax on gambling under Congress's Taxing Power) (overturned on other grounds).

The Supreme Court may be on a path to limiting congressional authority under the Commerce Clause, the Taxing Clause, or any clause. But even so, the individual mandate all too squarely falls within the recent and settled jurisprudence.

We've posted on similar constitutional issues in the health care reform debate here, here, and here.

SDS

link

Filed: AOS (pnd) Country: Canada
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:unsure: Who are you and what have you done with Stevie?

you didn't read the whole thing, did you?

It's Stevie alright. He just tries to fool you in the first part....

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you didn't read the whole thing, did you?

It's Stevie alright. He just tries to fool you in the first part....

Feel free to cite any constitutional scholars that state the HCR bill is unconstitutional here. It's getting boring hearing legal opinions just from armchair scholars who think they know the Constitution better than these scholars who are saying the individual mandates are constitutional.

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Illegal Health Reform

By David B. Rivkin Jr. and Lee A. Casey

Saturday, August 22, 2009

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress's authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that -- as in the wheat case -- "the activities regulated by the [Controlled Substances Act] are quintessentially economic." That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a "benefit" that some part of the population would not choose to eschew.

The other obvious alternative is to use Congress's power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.

Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a "tax" to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous -- and therefore unlikely -- scenario, advocates of universal health coverage must accept that Congress's power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033_pf.html

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By David B. Rivkin Jr. and Lee A. Casey

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous -- and therefore unlikely -- scenario, advocates of universal health coverage must accept that Congress's power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

This is the argument that was addressed in the OP of this thread, for one. Look at the first post where the law professor, who is a constitutional scholar and not just an attorney, shows the flaws in their argument.

Rivkin and Casey misunderstand the Taxing Power. Congress can adopt an excise tax to an end that is within its other constitutional powers, as here. But even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing "tax." See United States v. Kahriger (upholding a federal tax on gambling under Congress's Taxing Power) (overturned on other grounds).

...

Beyond these two attorneys, find real constitutional scholars who state that individual mandates are unconstitutional.

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See the thing that gets me too here (and where it shows the corruption of the SCOTUS) is that things like this were NEVER an issue before the New Deal era.

There are so many erroneous acts by the SCOTUS and congress since then (See: certain provisions of the civil rights act for example) that limit individual liberty/freedoms, but that doesn't necessarily make them constititonal as it makes the courts willing to bend the constitution as to how they see fit, rather than to the degree of the law in which it says.

Granted, I will always argue that any constitutional scholar should have to have good knowledge and understanding of the Federalist Papers to truly understand the meanings of the constitution and very important the idea of individual choices/freedoms really were. We really have lost sight of that in this day in age on a federal level and in some states that same level as well.

This is the type of thing though, that cannot necessarily be 'fixed' however and I think that's the worst part of it all. We were warned upon inception of the constitution of how hard it would be to maintain due to the ignorance of man and the natural inclination for people to get their knickers in a wad and to look to the collective/the government to fix it all.

I mean hell, look at the ways of the law today that two individuals who want to fight each other freely, now end up in jail for assault.. some cases even tried for a crime even if the other person won't press charges and even if the fight was mutual. It's honestly disgusting the laws we have today that limit individual freedoms on all levels of government and all of it on some bullshit morality a large group ends up getting.

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See the thing that gets me too here (and where it shows the corruption of the SCOTUS) is that things like this were NEVER an issue before the New Deal era.

There are so many erroneous acts by the SCOTUS and congress since then (See: certain provisions of the civil rights act for example) that limit individual liberty/freedoms, but that doesn't necessarily make them constititonal as it makes the courts willing to bend the constitution as to how they see fit, rather than to the degree of the law in which it says.

Granted, I will always argue that any constitutional scholar should have to have good knowledge and understanding of the Federalist Papers to truly understand the meanings of the constitution and very important the idea of individual choices/freedoms really were. We really have lost sight of that in this day in age on a federal level and in some states that same level as well.

This is the type of thing though, that cannot necessarily be 'fixed' however and I think that's the worst part of it all. We were warned upon inception of the constitution of how hard it would be to maintain due to the ignorance of man and the natural inclination for people to get their knickers in a wad and to look to the collective/the government to fix it all.

I mean hell, look at the ways of the law today that two individuals who want to fight each other freely, now end up in jail for assault.. some cases even tried for a crime even if the other person won't press charges and even if the fight was mutual. It's honestly disgusting the laws we have today that limit individual freedoms on all levels of government and all of it on some bullshit morality a large group ends up getting.

I agree that from time to time, the Supreme Court has ruled erroneously - no system of government is perfect. However, our system of government is pretty damn good and we've corrected past errors of judgment (Dred Scott decision, for example). You seem to suggest that because SCOTUS isn't batting 1.000, you're not putting much faith in their capacity to apply the Constitution to this HCR bill that has now become law. When you lose faith in the system itself, then you start to tread on dangerous ground.

Beyond that, the issue surrounding the constitutionality of the HCR bill may be complex, but it's no where as controversial as the legality of slavery, for example. When you've got this many legal opinions coming from constitutional scholars that are saying an individual mandate is constitutional and they explain why, you should reasonably consider their arguments.

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I agree that from time to time, the Supreme Court has ruled erroneously - no system of government is perfect. However, our system of government is pretty damn good and we've corrected past errors of judgment (Dred Scott decision, for example). You seem to suggest that because SCOTUS isn't batting 1.000, you're not putting much faith in their capacity to apply the Constitution to this HCR bill that has now become law. When you lose faith in the system itself, then you start to tread on dangerous ground.

Beyond that, the issue surrounding the constitutionality of the HCR bill may be complex, but it's no where as controversial as the legality of slavery, for example. When you've got this many legal opinions coming from constitutional scholars that are saying an individual mandate is constitutional and they explain why, you should reasonably consider their arguments.

See, that's the thing, I do consider their arguments. Most of them are based on post New Deal era opinions on matters. It's a simple "because they've done this, they can now do this" sort of opinion. Pre New Deal/Pre-entitlement mentality in this nation, there wasn't a snowballs chance in hell of this ever coming to fruition.

The Dred Scott case was amusing and there again the SCOTUS was making an erroneous ruling, eventhough the constitution and the idealism behind it, prevented slavery. It took the 13th and 14th amendment to do things right, and unfortunately we were not smart enough to realize that neither one of those amendments was even necessary.

The problem with our current system and the way the justices are picked, is that they are picked in essence by the people because of the people today electing the president (eventhough they never were intended to do so constititonally by original design). If you have a Republican/Conservative President or you have a Democrat/Liberal President, you'll end up with a hand-picked justice that fits their agenda, not necessarily who's the best man/woman for the job. The recent pick of Sotomayor is pure evidence of that and the fact that a good majority of her decisions in the past had been overturned by the same court she now sits on. - How does that happen? and she's just one example for either side of the aisle..

Losing faith in this system isn't necessarily a bad thing when the system has been altered from its original intent. That is the key and that is where we've gone wrong today. The majority has become a dictator over the minority on the political spectrum in many ways, and that's something the founders didn't want to have any chance of ever happening. We sealed our own fate however over the course of the past 230 years...

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See, that's the thing, I do consider their arguments. Most of them are based on post New Deal era opinions on matters. It's a simple "because they've done this, they can now do this" sort of opinion. Pre New Deal/Pre-entitlement mentality in this nation, there wasn't a snowballs chance in hell of this ever coming to fruition.

The Dred Scott case was amusing and there again the SCOTUS was making an erroneous ruling, eventhough the constitution and the idealism behind it, prevented slavery. It took the 13th and 14th amendment to do things right, and unfortunately we were not smart enough to realize that neither one of those amendments was even necessary.

The problem with our current system and the way the justices are picked, is that they are picked in essence by the people because of the people today electing the president (eventhough they never were intended to do so constititonally by original design). If you have a Republican/Conservative President or you have a Democrat/Liberal President, you'll end up with a hand-picked justice that fits their agenda, not necessarily who's the best man/woman for the job. The recent pick of Sotomayor is pure evidence of that and the fact that a good majority of her decisions in the past had been overturned by the same court she now sits on. - How does that happen? and she's just one example for either side of the aisle..

Losing faith in this system isn't necessarily a bad thing when the system has been altered from its original intent. That is the key and that is where we've gone wrong today. The majority has become a dictator over the minority on the political spectrum in many ways, and that's something the founders didn't want to have any chance of ever happening. We sealed our own fate however over the course of the past 230 years...

The recent ruling from SCOTUS on campaign finance reversed previous decisions, however, there is a natural trend towards progress. They don't simply rely on past decisions, but the reliance on past decisions are important when the Constitution has no specific reference to the current law in question. For example, the right of states to secede. The Constitution is silent on it, however, it is understood that since the Civil War, secession is unconstitutional and the Supreme Court has ruled it as such.

As for the selection of justices - the process is as old as this country and even though the President makes the appointment, it requires confirmation from Congress (see Robert Bork).

How has SCOTUS been altered from its original intent?

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The recent ruling from SCOTUS on campaign finance reversed previous decisions, however, there is a natural trend towards progress. They don't simply rely on past decisions, but the reliance on past decisions are important when the Constitution has no specific reference to the current law in question. For example, the right of states to secede. The Constitution is silent on it, however, it is understood that since the Civil War, secession is unconstitutional and the Supreme Court has ruled it as such.

As for the selection of justices - the process is as old as this country and even though the President makes the appointment, it requires confirmation from Congress (see Robert Bork).

How has SCOTUS been altered from its original intent?

The SCOTUS has been altered by default in the 'people' electing the Senate/The President which was not the original intent/framework of the constitution, and for good reason.

As far a secession goes, that is another erroneous SCOTUS decision if any time a state decides they want to leave. If you look at what the founders wanted, they wanted to allow the states the ability to leave the union if it were the broad belief of the citizenry of that state, for it to be best for the state to do so. It was purposefully left out of the constitution. There again, understanding the constitution, understanding the framework, and then applying it appropriately are two different things entirely.

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The recent ruling from SCOTUS on campaign finance reversed previous decisions, however, there is a natural trend towards progress. They don't simply rely on past decisions, but the reliance on past decisions are important when the Constitution has no specific reference to the current law in question. For example, the right of states to secede. The Constitution is silent on it, however, it is understood that since the Civil War, secession is unconstitutional and the Supreme Court has ruled it as such.

As for the selection of justices - the process is as old as this country and even though the President makes the appointment, it requires confirmation from Congress (see Robert Bork).

How has SCOTUS been altered from its original intent?

This is where you have problems. The supreme court is not allowed, per the constitution, to rule on subjects on which the constitution is silent. Everyone who took 4th grade US civics knows that the Supreme Court is designed to interpret the law. But when you have the supreme court interpreting situations based on past rulings, you in essence have the past supreme courts creating laws that later supreme courts interpret.

When you consider that most supreme court decisions have 2-4 justices dissenting, it becomes disturbing that past rulings are being canonized and used as a basis for future rulings.

 

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