The Country is going nuts with the recently passed health care passage. If you have read ANY of my political posts before you could only imagine how much this bill makes me sick, literally it is a feeling of lost like the Country is taking a piss poor turn. But beyond personal feelings I question the legality and constitutionality of this particular bill.
Two of my favorite bloggers wrote up great reviews of the issue from opposing sides. I will throw it out there right now, I do not agree with Financial Samurai, while I think Darwin sums it amazing:
- Darwin’s Finance – What’s Wrong with This Health Care Plan
- Financial Samurai’s – Insuring the Uninsured is Worth it
My main arguments surround the normal anti-big government rhetoric – I don’t believe the government can run anything efficiently and there is something wrong about the federal government forcing me to purchase any type of product. But that is not what this post is about, you can read hundreds of those types of posts elsewhere, and come on if you read my site often enough you know what I believe. Really, I want to know if this garbage is legal and constitutional.
Is The Health Care Bill Constitutional?
Right off the bat I will admit I am not a Constitutional Law expert, nor am I even a novice – and in fact I haven’t read a Con Law article since Law School unless it applies to taxes. Actually Con Law was a very tough time for me. Imagine a White Christian Male raising his hand during class and asking why my property tax dollars should fund a school in a predominately African American neighborhood, or Imagine that same White Christian Male asking why a female should have any additional rights to a Child of both parties, or Imagine that same White Christian Male asking why it is fair that any minority should benefit for the atrocities (and I do mean atrocities) of the forefathers 400 years ago. I truly believe everyone should be afforded equal rights, and those rights should not be at the expense of anyone else.
I didn’t have to search hard to find a Con Law expert to talk about this bill. All I did was head over to Cato, a Washington think tank, and I found a good article from Randy E. Barnett a fellow at Cato and a Con Law professor at Georgetown University. He wrote an article aptly titled, “Is Health-Care Reform Constitutional?” Like everything else in the World it comes down to…maybe.
Mandating The Purchase of Insurance May Be Unconstitutional
The Issue is put simply by Mr. Barnett,
Can Congress really require that every person purchase health insurance from a private company or face a penalty?
This is different than forcing me to purchase auto insurance in New York, because I am actively choosing to drive my car, oh and that is despite taking a loan on the vehicle which I was ripped for lol. Most people don’t realize it, but our federal government is one of limited powers. Meaning that if it is not in the Constitution than according to the 10th Amendment ratified in 1791,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So the question really comes to whether the Commerce Clause which grants the Federal Government the power to control and regulate power between the states, would apply to inactivity. The Commerce Clause has a ridiculous storied history that I once knew years ago. It is not as easy as reading the couple paragraphs that make it up, you would need to read about 15 LONG and tedious cases which restricted the federal gov’t then broadened the power, then restricted and I think we are still in a time of broadening power.
Anytime that a lawyer or law professor uses the word, “unprecedented” it means I don’t know…so maybe.
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
So when this does go to the Supreme Court of the United States, and it will, they will ultimately decide whether inactivity is within the power of Commerce Clause, and if it is not…then it is is unconstitutional.
The Slaughter House Rule may Make Health Care Reform Unconstitutional
Article I of the Constitution makes it VERY clear that a bill must be passed by both the House and Senate. Well Rules Committee Chairman Louise Slaughter ahd the bright idea of making some pass without a nay or yay vote. Someone must have gotten to her ear and told her that this could cause the whole thing to collapse by a Federal judge. So this isn’t an issue anymore since it went to vote on Sunday.
The kick Backs and Disgusting Pork
I doubt this is going to hold much water since every bill has these features, but the ones here are egregious and make me sick. The biggest one is the Louisiana Purchase whereby Louisiana is exempt from a change in the formula for calculating the state-federal split on Medicaid costs. Woah, so the rest of the Country (i.e. me and you) will have to eat Louisiana’s Medicaid costs? F. That.
I don’t give a shit about Louisiana’s Medicaid Costs, there I said it, and I am damn sure that Louisiana wouldn’t want to pay for my yankee ass’ Medicaid if I were to need it. I guess one first need to accept that Medicaid is going to cost more for this to matter, but who the hell doesn’t believe that? Just like Medicaid was projected to cost a tenth of what it costs today.
Again, is that going to make this thing unconstitutional? I doubt it, but come on!
Forget rhetoric for a moment (but would be happy to go there in a different post) do you believe that the federal government should have this power? I don’t doubt that States have this power but I am just not convinced this is a Federal Issue.
Being even less of an expert on Constitution Law than you (amazing, undergraduate biochemistry majors just don’t have to learn about this type of thing), I don’t know that I can make too much of an argument on the Constitutional side of things. I think that this past century or so, we’ve seen the power of the Federal government expand so much (for better or for worse) that this wouldn’t even be the most extreme overreach of governmental power as of late. (That’d be a, uh, ‘fun’ subject for another post, debating what government action was the most extreme abuse of power.)
I’m interested to see how this whole thing turns out.
What would you consider the most expansion? I would probably go with Bush’s decision to basically spy on his own people.
The most egregious expansion (or perhaps abuse) of governmental power? Bush’s actions are pretty high up there, although I think anytime the President takes it upon himself to declare war (oops, I mean, a ‘police action’) rather than going through congress could qualify.
The REAL danger is that the bill’s provisions have only good stuff in the early years (payouts to seniors, free insurance, and no pre-existing discrimination) but the painful part comes later (taxes, taxes, more taxes and debt). How does it really help families to raise the AGI limit on deductibility of medical expenses by 33 percent? And does anyone REALLY believe that the 4 years of taxes these bozos collect before 2014 will still be in the Treasury? If you do, I have some oceanfront property in Kansas we need to discuss.
Since federal law trumps state law according to the Constitution, I wonder what would happen if enough state legislatures passed a new amendment saying that “no federal law, mandate, or executive order shall over-rule laws passed by individual states.” Now THAT would be interesting …
Interesting that you bring that up…There is a way for the States, regardless of the federal gov’t, to create a Constitutional amendment. NOW THAT WOULD MAKE FOR SOME GOOD TV!
On your other points I agree with 100% the whole thing really does seem like smoke and mirrors, and the really shit part about it is that The Big O will hopefully be out of office by then and the next guy (or gal hmmm?) will be blamed.
It boils down to 2 things for me:
1)Health care should NOT have a profit motive, if it does the patient will lose. The insurance companies had their chance, and they completely f-ed up the system.
2)It is the right thing to do for our fellow humans. We are the richest country on Earth, we can afford to do this, even if it means cutting something else. No one should be forced into bankruptcy or lose everything due to a medical issue.
Comparing it to the government making you buy a car is absurd and disingenuous. If your car breaks down, your fellow man won’t have to help you pay to fix it up (I’m talking about people with no health ins that use ERs like doctors’ offices).
BTW – both your links lead to the Financial Samurai article.
1) So because you don’t agree with the insurance system, it is forced to go to federal gov’t? I can’t agree with that
2) The problem is NOTHING WILL BE CUT! That is the whole issue
“Comparing it to the government making you buy a car is absurd and disingenuous. If your car breaks down, your fellow man wonâ€™t have to help you pay to fix it up (Iâ€™m talking about people with no health ins that use ERs like doctorsâ€™ offices).”
I said the gov’t forcing me to buy car Insurance. I am not sure where you live but they can literally impound your car here in NY if you get pulled over and don’t have valid insurance.
I was actually referring to the inset paragraph you quoted or referred to about the government forcing you to purchase a car.
Re: #1 – there are certain things that are too broad it should not be left up to the private sector – things like national defense, fire, police, etc. I feel health care falls in to this as well. I don’t support it ONLY because the current system sucks, but that is another good reason.
How would you feel if your fire department thought your house fire was too costly to put out so they didn’t bother to help you? It’s the same thing here.
“there are certain things that are too broad it should not be left up to the private sector â€“ things like national defense, fire, police, etc. I feel health care falls in to this as well. I donâ€™t support it ONLY because the current system sucks, but that is another good reason.”
I think this is where we part ways ideologically speaking. Maybe it is because it is new and crazy, but I don’t view all of health care to be included in national defense, fire, or police.
I am no attorney but I think the federal government requiring people to have insurance is unconstitutional. I think it is time to have some of the federal governmentâ€™s power limited.
Regarding your paragraph below, aren’t you actively seeking to live a long and healthy life? If so, what’s wrong with forcing people to buy insurance to protect themselves in case they fail at living healthy?
“This is different than forcing me to purchase auto insurance in New York, because I am actively choosing to drive my car, oh and that is despite taking a loan on the vehicle which I was ripped for lol. Most people don’t realize it, but our federal government is one of limited powers. Meaning that if it is not in the Constitution than according to the 10th Amendment ratified in 1791,”
The gov’t rammed the bill down our throats and the amount of pork and crap is disturbing. However, if this wasn’t passed now, nothing would ever pass.
NOW is the time for the opposition to fight loudly and iron out all the crap. You know I’m pretty skeptical about gov’t. But preventing bankruptcy due to health care costs should be a given.
Then focus on cutting health care costs…not forcing me to have insurance (which I have and am happy to pay for). Just because this is the best they came up with to fix it doesn’t mean it is legal, nor does it mean we should just accept it – send it back to the drawing board.
“Regarding your paragraph below, arenâ€™t you actively seeking to live a long and healthy life? If so, whatâ€™s wrong with forcing people to buy insurance to protect themselves in case they fail at living healthy?”
– I am, but I am not sure the dude next to me with his 12th cig of the day is…or the guy shooting up H…or the millions of voluntarily obese people in this country…and those are the ones I don’t want to pay for
BTW, I think you linked Darwin’s post to my post. Frankly, I think that clearly means that you agree with me and my reasonings b/c my arguments are constantly on your mind!
BEFORE you switch to Darwin’s post, think about my reasoning and WHY you linked to my post twice! 🙂
LOL FREUDIAN LINKAGE
I am all for preventing bankruptcy due to health care costs – my own bankruptcy that is. My goal for preventing my own bankruptcy due to health care costs is by virtue of me being responsible – responsible for myself that is. As far as being forced to pay the cost for others – thanks but no thanks 🙂
WOW that is a NUTTY graphic!
Our for profit health care is what has made it the best in the world. We are trying to change it to a socialism based system that has been much worse everywhere it has been tried. Rationing of health care, waiting periods, not enough doctors among other problems. I agree that there are problems, but going towards socialism isn’t the answer. Less government control, not more would be much better.
Let’s keep this constitutionally based.
Here’s the problem about arguing the Constitutionality of this bill. What justifies it constitutionally justifies some other things that are pretty much inarguably good for the US historically speaking. The argument for its Constitutionality falls under regulation of interstate commerce. Since people may seek health care while crossing state lines, or the health care industry is composed of companies in various portions of the whole system that operate in multiple states, regulation of interstate commerce is stretched to include this.
If you believe this stretch is out of line, then you would inevitably have to conclude the stretching of interstate commerce clause has made such laws as the Civil Rights Act of 1964, which deemed racial segregation of businesses such as buses illegal, unconstitutional as well. There are entire agencies that could be declared as unconstitutional, such as the Environment Protection Agency. Job discrimination would have to be legal, too.
Yes, there is a danger that government could overstep its authority by stretching this clause, but one could argue that the gov’t can’t effectively do what it must do for the common good of everyone unless it can stretch this clause, too.
Arguments about it should be state’s rights to me is however disingenuous. Opponents of this bill would be just as upset if it was done in their state, and would argue the bill as unconstitutional on other grounds, and state laws cannot violate the US Constitution either.
When arguing constitutionality, what irritates me the most is people tend to use arguments to support their political views, not in terms of the implications to the entire system of government if something they like or dislike is considered constitutional or not.
I get that this,
“Since people may seek health care while crossing state lines, or the health care industry is composed of companies in various portions of the whole system that operate in multiple states, regulation of interstate commerce is stretched to include this.”
Will be the counterargument, and at the same time I get that federal regulation already prohibits interstate health care insurance companies…but punishing for inactivity based on those arguments seem questionable.
As far discussing constitutionality and applying personal political views – it kind of seems natural because you already have a gut feeling (which is based at least in part in your education on the subject and in another part political beliefs) as to what is and isn’t constitutional so to apply your personal views seems natural.
It may seem questionable, but again, what I would ask is take yourself out of this specific issue, and look at it from the perspective of if government were never allowed punish for inactivity, would that prevent the government from meeting the essential needs of the people? Or, conversely, if the government were allowed to do this, does it realistically lead to the government becoming tyrannical and overstepping its bounds?
On the question of punishment for inactivity, there are precedents around, much more so by state and local governments, but again, if these laws were unconstitutional according to the US constitution, they’re just as unconstitutional as a federal law, and most opponents of health care reform are usually not genuinely saying only state and local governments should be able to do this instead of the federal government. Examples:
You are compelled to ensure your legal underage dependents an education that meets states’ guidelines.
You are compelled to keep your property up to regulatory code.
You are compelled to complete a draft card, and serve in the military if called.
Finally, you are correct it is a natural thing for people to bring in their personal political beliefs about specific issues into constitutional arguments, but that’s precisely why most people aren’t particularly good at understanding constitutional law and often what the implications are when they believe a particular way about a particular issue. Deeming something unconstitutional has far more implications than simply on that particular issue.
First thing – The Federal Gov’t and the State gov’ts are not always held to the same standard for Constitutionality under the State’s police powers.
For instance, drinking ages. I think almost everywhere in the country is 21. That is not because the federal gov’t mandates it, but rather they swayed state gov’ts to make it that age using federal highway funds (i.e. if you don’t make it 21 we aren’t building roads in your state). If the fed gov’t tried to make a national drinking age they might be struck down by a federal court.
All I am really saying that this is the first time that the Federal gov’t is mandating a purchase of a consumer product, and no one can really provide a straight answer as to its constitutionality because it is a case of first impression.
Are you saying that because the federal government is doing this, that makes all the difference? I understand that you’re saying we’re talking from a US Constitutional perspective. If you believe that allowing any level of government force you to purchase a consumer product, does it matter which level of government it is?
What is it about the federal gov’t requiring this compared to state or local government that makes it dangerous by setting a precedent that would lead to the federal government abusing its power? States have been allowed to do it with education. Why is it okay for states and localities to do it, but not the federal government?
This doesn’t seem to be a question of federalism. Health reform opponents aren’t arguing they want this to be a state’s right issue because they believe it allows the federal government too much power. They hate the model, and don’t want it as pervasive.
So now I ask what is it about a requirement of purchasing a consumer product that makes it any more or less regulation of interstate commerce? If you accept that interstate commerce regulation has been stretched, and you’re okay with it being stretched in some cases as I’ve shown it was used before, how would this be less constitutional?