11th Circuit Court of Appeals finds Health Care Mandate Unconstitutional

[Bestbank Tiger]

See that in the end there is where you get to the important point. There has been, from day 1, competing points of view on the issue. At no time were all of the people running the government unified on what many of these Constitutional principles mean. And that being the case, the politics wins out.

What people who claim to be 'constitutional originalists' are trying to do is an end run around the political process based on a Constitutional viewpoint which is not now, and was not in the 1790s, the dominant or governing viewpoint of the nation. "Strict Constructionism" is a fiction invented for a political purpose. It has nothing to do with US history or US law.

You might not want to run with that view. You're basically arguing that the government can do whatever it wants unless the Constitution explicitly forbids it.

Do you want to overturn Roe, Griswold, and Lawrence? If not, maybe you should accept the view that the federal government's rights are limited by the 10th and state government's rights are limited by the 9th.

 

[Cutlass]

You might not want to run with that view. You're basically arguing that the government can do whatever it wants unless the Constitution explicitly forbids it.

Do you want to overturn Roe, Griswold, and Lawrence? If not, maybe you should accept the view that the federal government's rights are limited by the 10th and state government's rights are limited by the 9th.

Not at all. Those Supreme Court cases were decided on the view that the Constitution did have something to say on those issues. That the view of the Constitution is a living one. And it has evolved over time, not just by amendment, but by statute and judicial precedent. The difference between Roe and Heller is that the Supremes evolved towards Roe, but made Heller up with no evolution. But that said, Roe is still a Constitutional restriction on what government may do.

It is fundamentally not the same as saying that government may not do health insurance. Because there isn't a basis for saying that government may not do that.

The view that we have a living constitution, that 'strict constructionism' is bunk, does not say that the Constitution does not place limits on what Congress may do. What it says is that Congress must work within rules. But that those rules evolve with the the needs and beliefs of the people.

 

[GhostWriter16]

"Living Constitution" is the antithesis to "Strict" constitutionalism. Its another theory. But just because living constitution is more popular doesn't make it OK. In fact, the 10th amendment absolutely refutes the theory on a logical plain.

 

[Ajidica]

"Living Constitution" is the antithesis to "Strict" constitutionalism. Its another theory. But just because living constitution is more popular doesn't make it OK. In fact, the 10th amendment absolutely refutes the theory on a logical plain.

You haven't been following the discussion, have you?

 

[Camikaze]

The Constitution is silent on health care. Is that because it pre-dates it? I fail to see why that HAS to be the case. The authors of our Constitution were some of the most enlightened men of the age. Perhaps they all just instinctively knew it wasn't the job of the federal government in this federalist system we have set up where many things are the responsibility of the State,not Federal, governments.

Regardless, since it IS silent on that issue, health care is supposed to be in the realm of State governments if they want to do anything about it. Individually up to each State to decide what to, or not to, do.

If that bugs people, there is a process called amending the Constitution. It's been done 27 times so it isn't like it cannot be done if the issue is important enough.

The Constitution is also silent on the matter of posessing an Air Force. Airplanes, just like government health programs, were not within the realm of possibility when the constitution was written. Is that a reason why we shouldn't have an Air Force? Sure, we can quickly justify having an air force through the 'provide for the common defense' clause, but then isn't that on the same level of 'constitutionality' as using the Commerce Clause and the necesary and proper clause to provide health care?

No, it's not. It very clearly authorizes, as well as anything else dealing with defense.

If we are following the logic of the constitution not having to outline the specific measures taken as part of 'defence' (for example with the air force example, which although not explicitly mentioned, is thought to fit under the banner of 'defence'), then the idea that that is limited to a highly traditionalist military focus seems to be out of step with government policy and the US National Security Strategy. Some of the things that it specifically mentions as key to 'security' (which is pretty much synonymous with 'defence') include education, the development of clean energy and deficit reduction (and, IIRC (and don't beat me around the head with it if I'm wrong; I'm happy to concede the point) the health care thing helps specifically in this regard). And here's a specific quote:

The United States must ensure that we have the world’s best-educated workforce, a private sector that fosters innovation, and citizens and busi- nesses that can access affordable health care to compete in a globalized economy.

But most importantly, it is the principle that is enshrined that is key; security and defence are no longer concepts confined to the battlefield (as the military's shift away from 'conventional' warfare is further evidence of). Shouldn't 'defence' be largely informed and defined by the National Security Strategy? If we're saying that the constitution allows the government to take action in the 'common defence', then why should we be arbitrarily and narrowly limiting the definition of 'defence', at odds with the stance of the rest of the US government and its security strategy?

 

[Bestbank Tiger]

It is fundamentally not the same as saying that government may not do health insurance. Because there isn't a basis for saying that government may not do that.

The individual mandate is the government telling you what to do with your own body so it does have something in common with those cases.

 

[Cutlass]

The individual mandate is the government telling you what to do with your own body so it does have something in common with those cases.

No. That individual mandate is telling you that you can't stiff other people with the bill if you do use medical services.

 

[Bestbank Tiger]

No. That individual mandate is telling you that you can't stiff other people with the bill if you do use medical services.

Yeah, that's the insurance company's job

And your argument is inconsistent. You claim in some cases that the Constitution being silent means the government can't do something, then you claim that the Constitution being silent means the government has unchecked power. It's one or the other--and the Ninth and Tenth Amendments are clear on how the issue is to be settled. (Hint: Both limit federal power, and the Ninth limits state power.)

Democrats are giving a notoriously predatory for-profit industry the power to levy a tax on the citizens, and are tying themselves into knots to justify it. It would be hilarious if it weren't so sad.

 

[Bestbank Tiger]

No. That individual mandate is telling you that you can't stiff other people with the bill if you do use medical services.

Oh, and should I take this to mean you want to cut off Medicaid? That's funded by other people's tax dollars. The recipients are using medical services and sticking someone else with the bill.

 

[Cutlass]

Yeah, that's the insurance company's job

And your argument is inconsistent. You claim in some cases that the Constitution being silent means the government can't do something, then you claim that the Constitution being silent means the government has unchecked power. It's one or the other--and the Ninth and Tenth Amendments are clear on how the issue is to be settled. (Hint: Both limit federal power, and the Ninth limits state power.)

Democrats are giving a notoriously predatory for-profit industry the power to levy a tax on the citizens, and are tying themselves into knots to justify it. It would be hilarious if it weren't so sad.

I've never once claimed that the government has unchecked power. That's a strawman. The living Constitution paradigm does not in any way, shape, or form, claim that the government is free of Constitutional restrictions or has unchecked power. What it says is that those restrictions slowly evolve over time with the needs of the country and what the country wants.

So where is my argument inconsistent?

No one has pointed out where this is unconstitutional, except by pointing at the 10th Amendment and claiming that it means something that the consensus of the courts, governments, and Constitutional scholars throughout the entire history of the US do not agree that it means. I do not see why the government is suddenly bound by a radical Constitutional 'belief' that was invented out of whole cloth just to block the elected government from acting. No one has provided a reason or a history for me to accept that those Amendments suddenly mean something other than what they have always meant in the past.

And so, barring an explanation of why they should mean that, I reject the idea that they do.

Amendment 9 - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.



Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note

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.

There is no absolute agreement on what these means, that effectively hobble anything the government should choose to do.

The individual mandate says you will pay your own medical bills, or be subject to a tax. It is not a restriction on individual freedom or privacy.

Now sure, Single Payer is better in all respects. But Congress was too conservative to go that far. And is even more conservative now.

 

[Bestbank Tiger]

The individual mandate says you will pay your own medical bills, or be subject to a tax. It is not a restriction on individual freedom or privacy.

Wrong on both counts.

You could pay your own medical bills out of pocket or rely on a mutual aid society. But under health care deform, you don't have a choice. You have to cut a large check to a for-profit company every month as long as you draw breath. That is your only option. And that is the very definition of restricting individual freedom and privacy--you are allowed one, and only one, means of providing for your health care, and the one option allowed is to let a bean-counter dictate what medical procedures you're allowed to receive.

And if you want to argue that it's a tax, please show me where a head tax is constitutional, or where it says a tax bill can originate in the Senate. (Hint: it can't--it has to originate in the House.) Of course, I guess the "living Constitution" means we can just make it up as we go along based on the whims of bribe-taking politicians.

 

[Cutlass]

Wrong on both counts.

You could pay your own medical bills out of pocket or rely on a mutual aid society. But under health care deform, you don't have a choice. You have to cut a large check to a for-profit company every month as long as you draw breath. That is your only option. And that is the very definition of restricting individual freedom and privacy--you are allowed one, and only one, means of providing for your health care, and the one option allowed is to let a bean-counter dictate what medical procedures you're allowed to receive.

And if you want to argue that it's a tax, please show me where a head tax is constitutional, or where it says a tax bill can originate in the Senate. (Hint: it can't--it has to originate in the House.) Of course, I guess the "living Constitution" means we can just make it up as we go along based on the whims of bribe-taking politicians.

"You could pay your own medical bills out of pocket or rely on a mutual aid society." What that actually means in practice is about 1/5th the US population not having the right to see a doctor. And when they do they will be stiffing others with the bill. It's all well and good to pretend that people can afford the medical care if they want. Except, of course, this entire issue started because a growing portion of the US population has been priced out of the ability to seek medical care.

Inventing a Constitutional philosophy that has never in the past been the governing law of the US to try to block something just because you lost in the elections doesn't change that.

 

[Tani Coyote]

I have an easy way to constitutionalise things. It says to the States OR the People.

So... the People have the right to delegate whatever powers they wish to the Feds via democratic processes...

The joys of a flexible document!

 

[GhostWriter16]

I have an easy way to constitutionalise things. It says to the States OR the People.

So... the People have the right to delegate whatever powers they wish to the Feds via democratic processes...

The joys of a flexible document!

Who says the people want to do this? At the very least you'd need a plebiscate. Personally I believe "People" means "Individual."

In fact, if it were up to me, I would have worded it as such.

 

[Tani Coyote]

Who says the people want to do this? At the very least you'd need a plebiscate. Personally I believe "People" means "Individual."

Well, that's a good idea, though the Bill of Rights can protect that for the most part...

In fact, if it were up to me, I would have worded it as such.

Well, if you want the States' consent, you need only get the majority of the Senate, as they represent the States. So, the states, with their power over healthcare, can delegate to the Feds as well.

 

[GhostWriter16]

Well, if you want the States' consent, you need only get the majority of the Senate, as they represent the States. So, the states, with their power over healthcare, can delegate to the Feds as well.

I actually don't think they can, unless ALL the states agreed to it. Even then, you'd have to prove its a state issue and not a personal one...

 

[Tani Coyote]

I actually don't think they can, unless ALL the states agreed to it. Even then, you'd have to prove its a state issue and not a personal one...

Those such as Romney and numerous conservatives and libertarians believe it is a state issue... I think that settles that.

Going by precedent, 12/13 of all states are required to change the government so we can go from that...

 

[GamezRule]

People not having health insurance undermine the defense of the United States.

 

[GhostWriter16]

Those such as Romney and numerous conservatives and libertarians believe it is a state issue... I think that settles that.

Going by precedent, 12/13 of all states are required to change the government so we can go from that...

12/13 sounds good enough, though I do believe states are allowed to secede, and I don't believe THAT individual state right can ever be changed without somehow eliminating state borders altogether.

 

[RobAnybody]

You could pay your own medical bills out of pocket or rely on a mutual aid society.

2nd things 1st, a "mutual aid society" is just an insurance company. A group of people pool their money & if one of them gets sick or hurt, they mutually aid each other. AKA, an insurance company.

But under health care deform, you don't have a choice. You have to cut a large check to a for-profit company every month as long as you draw breath. That is your only option.

Not at all. As you mentioned above, you can choose to pay your own medical bills. You'll have to pay a tax penalty, but you can't say you didn't have a choice or were forced to buy health insurance. There's just a penalty if you don't.

There's a tax benefit if you have kids or a home mortgage. There's a tax penalty if you don't have health insurance. You're no more forced to buy health insurance than you're forced to have kids.

And if you want to argue that it's a tax, please show me where a head tax is constitutional, or where it says a tax bill can originate in the Senate. (Hint: it can't--it has to originate in the House.)

Regarding a "head tax", it is Constitutional. Poll taxes aren't, but Article I says "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." So as long as it's in proportion to the census & doesn't violate anything else specifically spelled out (Equal Protection, for example), you can have a "head tax".

Finally, regarding tax bills originating in the Senate:
"According to the United States Constitution (Article I, Section 7, clause 1), all bills relating to revenue, generally tax bills, must originate in the House of Representatives, consistent with the Westminster system requiring all money bills to originate in the lower house which is why the appropriations bills that are enacted begin with "H.R.", indicating a bill that originated in the House. The Constitution also states that the "Senate may propose or concur with Amendments as on other Bills," so in practice, the Senate and House each drafts and considers its own bill. The Senate then "cuts-and-pastes", substituting the language of its bill of a particular appropriations bill for the language of House bill, then agrees to the bill as amended."

In practice, it happens. I also found this under the Republican Policy Committee at senate.gov saying it's happened before (the article is dated 6/7/2000) & they were fine with it.