Health Care Ruling Shows Judicial Activism Is Alive and Well -- and Living on the Rig

[geauxtohell]

Abortion, they support it in roe verse wade, but anything else, they hate it, friggen turds.

Is it chapter and verse?

And why does everything come down to Roe V. Wade with you guys?

 

[geauxtohell]

Tell your professor he is a moron, and he should be put up on a wall and shot for treason.

Irony.

 

[Claudette]

Health insurance can equally be argued to be a public safety and liability issue. People without insurance are less likely to seek out health care when it is needed, which can contribute to the spread of communicable diseases. Seeking out health care at all could be seen as a public safety issue. I don't get flu shots, ever. It's my choice. But by not getting the flu shot I can potentially become a danger to anyone I pass as I walk down the street. The flu causes thousands of deaths every year. But somehow, I don't think that you would consider this enough to make a government mandate that everyone purchase a flu shot. That's because the constitutionality of the matter is not based on the fact that government is requiring a person to purchase a product. It is, instead, based on whether the policy presents and serves a legitimate government interest.

Those who do seek out health care at whatever time, via emergency rooms, often will not pay their bills. This causes health care providers to lose money, and causes the prices on others to rise. Additionally, people without health insurance are less likely to seek out health care when they need it when infected with communicable illnesses. The government does have a legitimate interest in addressing these concerns.

Sorry.

Ain't buyin your argument.

If you don't have a car no one can force you to buy insurance for same.

The Govt is going to force everyone to buy HC insurance to cover the cost of those that don't have it. In other words those that have will be hosed to pay for those that have not.

HC insurance is a commondity. The Govt can't force you to buy a commodity. Its totally unconstitutional if they try.

 

[Big Fitz]

Health insurance can equally be argued to be a public safety and liability issue. People without insurance are less likely to seek out health care when it is needed, which can contribute to the spread of communicable diseases. Seeking out health care at all could be seen as a public safety issue. I don't get flu shots, ever. It's my choice. But by not getting the flu shot I can potentially become a danger to anyone I pass as I walk down the street. The flu causes thousands of deaths every year. But somehow, I don't think that you would consider this enough to make a government mandate that everyone purchase a flu shot. That's because the constitutionality of the matter is not based on the fact that government is requiring a person to purchase a product. It is, instead, based on whether the policy presents and serves a legitimate government interest.

Those who do seek out health care at whatever time, via emergency rooms, often will not pay their bills. This causes health care providers to lose money, and causes the prices on others to rise. Additionally, people without health insurance are less likely to seek out health care when they need it when infected with communicable illnesses. The government does have a legitimate interest in addressing these concerns.

Sorry.

Ain't buyin your argument.

If you don't have a car no one can force you to buy insurance for same.

The Govt is going to force everyone to buy HC insurance to cover the cost of those that don't have it. In other words those that have will be hosed to pay for those that have not.

HC insurance is a commondity. The Govt can't force you to buy a commodity. Its totally unconstitutional if they try.

You see... The left doesn't care about constitutionality. They're trying to build a utopia. THEIR utopia in which people who resist are expunged.

A Brave New 1984 Handmaid's Tale... with liberty and justice for them.

 

[Bern80]

I think you've misunderstood my argument. Whereas some people here are arguing for a hyper restricted federal government, this interpretation is not accurate. The courts regularly use the test of legitimate and compelling government interests inasmuch as the necessary and proper clause grants Congress the power to fulfill such compelling government interests.

The question then becomes whether the federal government has a legitimate interest that is served in passing the health care bill. The answer is yet.

And I you think you misunderstand the necessary and proper clause......

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It does NOT allow government to do whatever it feels is neccessary and proper in the natoins best interest. It allows them to make any laws necessary to execute itss powers AS GRANTED by the constitution.

The next question then becomes whether the requirement in the bill for people to buy a product infringes upon a constitutionally protected liberty. The answer is no. Governmental mandates to purchase products occasionally happen, perhaps the most compelling being the requirements that are often placed on people in order to carry a handgun. Since carrying a handgun is an explicitly protected liberty under the constitution, and since there is no constitutional problem for requiring a person to buy things such as permits and safety classes in order to exercise said constitutional liberty, the requirement to buy something cannot in and of itself create a constitutional problem.

Wrong again. There is a major difference here. In the cases you are referring to like licensure or insurance for car ownership at the stop level, whether you have to purchase something is CONDITIONAL upon your CHOICE of purchasing something else. That us not the case with this mandate. EVERYONE MUST BUY HEALTH INSURANCE, PERIOD. Which again begs many questions if you're going to be governments cheer leader for such a mandate; how free are you really if government can make you purchase whatever it deems in the nations best interest? What CAN'T government make you do and by what precedent if you feel government has such an authority?

A third question then arises: Whether the specific requirement of purchase is reasonable, in that it reasonably promotes the aforementioned government interest. Requiring a person to take safety classes as a prerequisite for carrying a handgun reasonably promotes the government's interest to ensure public safety. However, if a law (for example) required a person seeking a permit to carry a handgun required that you buy a 12 month subscription to Good Housekeeping magazine, that requirement would NOT reasonably promote the government's interest in public safety. Therefore, such a requirement would be unconstitutional.

Whether it's reasonable depends on government's interest. What is government's interest in making everyone purchase health insurance?

 

[gekaap]

Sorry.

Ain't buyin your argument.

If you don't have a car no one can force you to buy insurance for same.

The Govt is going to force everyone to buy HC insurance to cover the cost of those that don't have it. In other words those that have will be hosed to pay for those that have not.

HC insurance is a commondity. The Govt can't force you to buy a commodity. Its totally unconstitutional if they try.

Okay, so would an exception in the HC bill make you feel better? Say, anyone who doesn't have a body will not have to buy insurance?

What you are failing to grasp is that people with insurance are ALREADY covering the cost for people without insurance. What do you think happens when someone goes to the ER and does not have insurance, and then don't pay? That loss gets absorbed by the service provider and passed along to the paying customers. If everyone has insurance, that will not have to happen anymore. Get it now? You're not being required to get insurance to pay for those who don't have it. You're being required to get insurance so that others will not have to pay for you when you go into the ER and can't pay.

You don't have to "buy" my argument. My arguments are based on existing laws, policies, and court precedents. Your approval is not necessary, because what YOU buy does not establish the constitutionality of a measure.

 

[gekaap]

You see... The left doesn't care about constitutionality. They're trying to build a utopia. THEIR utopia in which people who resist are expunged.

A Brave New 1984 Handmaid's Tale... with liberty and justice for them.

If you're referring to me when you say "the left" you should first know that I am no on "the left" and you should also know that I do not support the HC bill. I wish it had never passed and I'm even so much against it that I am hoping for its repeal even despite what would be normally be my overriding dislike for back and forth legislation with every changing of the Congress. But the HC bill is not unconstitutional from where I sit, and trying to fight it on faulty grounds will not do any good. Better to fight it on the undesirability of the measure, and to hopefully have better alternatives put forth.

 

[gekaap]

And I you think you misunderstand the necessary and proper clause......It does NOT allow government to do whatever it feels is neccessary and proper in the natoins best interest. It allows them to make any laws necessary to execute itss powers AS GRANTED by the constitution.

I understand it perfectly fine. It's the same thing that allows the federal government the power to build an interstate highway system. Some might say that that falls under the commerce clause, but that doesn't seem to really apply well, since the highways are not used exclusively, or even mostly, for commerce. It also allows the federal government to make laws against murder and drug use. It also allows the federal government to build and maintain an Air Force. Some people think this falls under national defense, but the constitution explicitly names the Army and Navy, and explicitly grants power to build and maintain them. Therefore, the hyper restrictive view of constitutionally granted federal powers that would be necessary in order to maintain an argument against the HC bill constituionality would thus necessitate explicit mention of an Air Force.

But if you really, REALLY want to get hyper restrictive, then we can always view the HC bill in terms of the commerce clause, which suffices to establish its constitutionality.

Wrong again. There is a major difference here. In the cases you are referring to like licensure or insurance for car ownership at the stop level, whether you have to purchase something is CONDITIONAL upon your CHOICE of purchasing something else.

While it may be a "choice" to buy a car, transportation is a vital need for a person to be a functional part of society. Thus, while it is a "choice" to buy a car, the mandate for car insurance is still a significant imposition upon a person. But like I said, and as you ignored, the question is whether that imposition infringes upon a constitutionally protected liberty. If it did, then the question of choice would be moot, and any such mandate would be unconstitutional. But those laws have been affirmed by the SCOTUS as constitutionally valid.

Also, I see you're going to ignore my example of requirements for safety classes before being able to obtain a permit to carry a handgun. It's your constitutional right to bear arms. All the same, a mandate to purchase the services of safety classes does not infringe upon your rights.

That us not the case with this mandate. EVERYONE MUST BUY HEALTH INSURANCE, PERIOD. Which again begs many questions if you're going to be governments cheer leader for such a mandate; how free are you really if government can make you purchase whatever it deems in the nations best interest?

First of all, I'm not being the government's cheerleader. I'm addressing the issue on its merits. Second, the government already places many requirements on me for the nation's best interest. When I turned 18 I had to register for selective service, for the nation's best interest. I am prohibited from possessing illegal narcotics, for the nation's best interest. I am required to pay taxes, for the nation's best interest. I am prohibited from traveling abroad to certain countries, for the nation's best interest. I have no problem having requirements placed on me for the nation's best interest. I'm a loyal American, I love my country, and I am happy to do my part for the nation's best interests. All I would ask is that the requirement not place an unreasonable burden on me. If there's ANY leg on which an argument could stand that the HC bill is unconstitutional, it's the argument that it's an unreasonable requirement, because some people might be unable to afford the cost. That would be difficult to actually prove, though, and I don't see such an argument succeeding.

What CAN'T government make you do and by what precedent if you feel government has such an authority?

What can't government make me do? It can't make me worship any particular god; in fact it can't make me worship at all. It can't deny me my right to bear arms. It can't force me to quarter military personnel. It can't unreasonably search me or my possessions, and it can't unreasonably seize me. It can't force me to testify against myself, and it can't take undue time to try me if I am ever accused of a crime. If I am convicted of a crime it can't subject me to cruel or unusual punishment, nor deny me legal representation. And it can't deny me a trial by a jury of my peers. It can't prevent me from voting since I'm over 18 years old, and can not charge me a tax in order for me to exercise that right.

Whether it's reasonable depends on government's interest. What is government's interest in making everyone purchase health insurance?

No, that is what the second question addresses. Whether something is reasonable, in terms of constitutionality, is a question of whether it is reasonable to expect citizens to be able to conform with the given law. If I want to go to a campaign rally where the President is speaking, I may be asked to do any demonstrating or protesting in a designated area. Since there is no unreasonable difficulty in complying with such a requirement, such have been affirmed as being constitutional. If I make a seven figure yearly income and have assents into the eight digit range, it is reasonable for me to pay for my lawyer if I am accused of a crime. If a law was passed that required a $1 million fee for a permit to buy a gun, that would not be reasonable.

 

[Greenbeard]

It does NOT allow government to do whatever it feels is neccessary and proper in the natoins best interest. It allows them to make any laws necessary to execute itss powers AS GRANTED by the constitution.

The argument is not that the mandate is necessary and proper to "the nation's best interest." Rather, it's necessary and proper to the effective functioning of a regulatory structure erected under Congress's Commerce Clause powers. Neither anti-ACA ruling has questioned the constitutionality of that regulatory structure.

From Hudson's ruling in Virgina:

The Commonwealth does not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce. Its lens is narrowly focused on the enforcement mechanism to which it is hinged, the Minimum Essential Coverage Provision.​

From Vinson's decision in Florida:

In light of United States v. South-Eastern Underwriters, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944), the "end" of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly "legitimate" and "within the scope of the constitution."​

So we have a set of insurance regulations enacted under the Commerce Clause; their constitutionality isn't being questioned. There is, however, a strong logical and economic argument that these regulations invite adverse selection and potentially destabilize insurance markets unless a deterrent to adverse selection accompanies them. That deterrent, then, is justified under the Necessary and Proper clause. The deterrent fulfilling that policy function is, of course, the individual mandate.

Given Scalia's explanation just a few years ago of where the Necessary and Proper Clause sits in relation to Commerce Clause, this really doesn't seem all that controversial:

As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119. [...]

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.​

Which again begs many questions if you're going to be governments cheer leader for such a mandate; how free are you really if government can make you purchase whatever it deems in the nations best interest? What CAN'T government make you do and by what precedent if you feel government has such an authority?

The argument you're pursuing has nothing to do with the one I just posted above. Accepting the individual mandate for insurance using this N&P argument doesn't imply you can be forced to buy anything the government wishes, nor is there some implication of unlimited federal power. Resorting to talk about "best interests" misses the substance of what's being argued here.

 

[Big Fitz]

It does NOT allow government to do whatever it feels is neccessary and proper in the natoins best interest.

This is the muscle and power of tyranny: unchecked power.

 

[Cecilie1200]

Hey stupid, forcing people to buy a product or a service is unconstitional. Show me anywhere in the Constitution where it states the government can force you to buy anything.

You liberals are simply stupid and for some reason you seem to hate freedom.

tax

You are forced to buy tax?

Damn you're stupid.

Article 1 Section 8:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Seems to me that one of the biggest complaints people have about paying taxes is that it seems they aren't getting anything back for their money, so I'd say one can't really call taxes "buying things", hmmmm?

 

[Immanuel]

Why all this comparison of Auto Insurance and the Obama Health Care Reform Act?

There is one major difference between the federal goverment's requirement that a person purchase health insurance and the state governments requirement that a driver purchase auto insurance and that is who is doing the requiring! Our federal constitution does not allow the federal government to force individuals to purchase anything at all despite what you on the left like to insinuate about the commerce clause. On the other hand, various states have their own constitutions and these constitutions may or may not allow the state to require the purchase of auto insurance. Hell, the various state constitutions may even allow for the state to require health insurance, but in this case we are not talking about the states requiring the purchase of health insurance.

The comparison of state auto insurance requirements and federal health insurance requirements fails. They are not the same thing, for crying out loud!

Immie

 

[Bern80]

I understand it perfectly fine. It's the same thing that allows the federal government the power to build an interstate highway system. Some might say that that falls under the commerce clause, but that doesn't seem to really apply well, since the highways are not used exclusively, or even mostly, for commerce. It also allows the federal government to make laws against murder and drug use. It also allows the federal government to build and maintain an Air Force. Some people think this falls under national defense, but the constitution explicitly names the Army and Navy, and explicitly grants power to build and maintain them. Therefore, the hyper restrictive view of constitutionally granted federal powers that would be necessary in order to maintain an argument against the HC bill constituionality would thus necessitate explicit mention of an Air Force.

Clearly you don't. If you did, instead of pointng to bunch of things that may or may not be constitutional, you would do as the clause instructs. Which is locate where in the constitution government was granted the power or authority that makes, and unconditinal requirment by the fed to purchase insurance neccessary and proper.

But if you really, REALLY want to get hyper restrictive, then we can always view the HC bill in terms of the commerce clause, which suffices to establish its constitutionality.

No it doesn't. Government has the power to REGULATE interestate commerce, not CREATE interstate commerce.

While it may be a "choice" to buy a car, transportation is a vital need for a person to be a functional part of society. Thus, while it is a "choice" to buy a car, the mandate for car insurance is still a significant imposition upon a person. But like I said, and as you ignored, the question is whether that imposition infringes upon a constitutionally protected liberty. If it did, then the question of choice would be moot, and any such mandate would be unconstitutional. But those laws have been affirmed by the SCOTUS as constitutionally valid.

I doubt SCOTUS has heard a case challenging the required purchase of auto insurance for drivers as those laws are STATE laws, not federal ones. As long as not prohibited by the U.S. constitution or its own state constitution the STATE has the authority to pass such a law.

Also, I see you're going to ignore my example of requirements for safety classes before being able to obtain a permit to carry a handgun. It's your constitutional right to bear arms. All the same, a mandate to purchase the services of safety classes does not infringe upon your rights.

This isn't even accurate actually. If you're over 18 you are not required by the federal government to take any type of safety classes to own a firearm.

First of all, I'm not being the government's cheerleader. I'm addressing the issue on its merits. Second, the government already places many requirements on me for the nation's best interest. When I turned 18 I had to register for selective service, for the nation's best interest. I am prohibited from possessing illegal narcotics, for the nation's best interest. I am required to pay taxes, for the nation's best interest. I am prohibited from traveling abroad to certain countries, for the nation's best interest. I have no problem having requirements placed on me for the nation's best interest. I'm a loyal American, I love my country, and I am happy to do my part for the nation's best interests. All I would ask is that the requirement not place an unreasonable burden on me. If there's ANY leg on which an argument could stand that the HC bill is unconstitutional, it's the argument that it's an unreasonable requirement, because some people might be unable to afford the cost. That would be difficult to actually prove, though, and I don't see such an argument succeeding.

Again you need to examine the premise that all of those things are actually constitutional. Again you can not be so naive as to believe every court ruling got it right and their isn't a single law on the books that is unconstitutonal.

What can't government make me do? It can't make me worship any particular god; in fact it can't make me worship at all. It can't deny me my right to bear arms. It can't force me to quarter military personnel. It can't unreasonably search me or my possessions, and it can't unreasonably seize me. It can't force me to testify against myself, and it can't take undue time to try me if I am ever accused of a crime. If I am convicted of a crime it can't subject me to cruel or unusual punishment, nor deny me legal representation. And it can't deny me a trial by a jury of my peers. It can't prevent me from voting since I'm over 18 years old, and can not charge me a tax in order for me to exercise that right.

Stop being obtuse. By your argument government would be allowed to do things like make people exercise or buy a Prius. You have listed a lot of things government can't make you done. You apparently don't see the very big door you have opened for other things government could make you do.

No, that is what the second question addresses. Whether something is reasonable, in terms of constitutionality, is a question of whether it is reasonable to expect citizens to be able to conform with the given law. If I want to go to a campaign rally where the President is speaking, I may be asked to do any demonstrating or protesting in a designated area. Since there is no unreasonable difficulty in complying with such a requirement, such have been affirmed as being constitutional. If I make a seven figure yearly income and have assents into the eight digit range, it is reasonable for me to pay for my lawyer if I am accused of a crime. If a law was passed that required a $1 million fee for a permit to buy a gun, that would not be reasonable.

You're dodging. What governement is trying to accomplish critical in determine whether they laws they pass are reasonable in accomplishing that goal.

 

[FA_Q2]

People keep citing some precedent and case law on this but no one has ever actually presented any that I can see. When exactly did the fed ever require citizens to buy things? Where is the case law you speak of that previously dealt with what the FEDERAL government can make people purchase? Other than insurance in 2014 what is the federal government making you purchase under threat of fine?

I think you've misunderstood my argument. Whereas some people here are arguing for a hyper restricted federal government, this interpretation is not accurate. The courts regularly use the test of legitimate and compelling government interests inasmuch as the necessary and proper clause grants Congress the power to fulfill such compelling government interests.

The question then becomes whether the federal government has a legitimate interest that is served in passing the health care bill. The answer is yet.

The next question then becomes whether the requirement in the bill for people to buy a product infringes upon a constitutionally protected liberty. The answer is no. Governmental mandates to purchase products occasionally happen, perhaps the most compelling being the requirements that are often placed on people in order to carry a handgun. Since carrying a handgun is an explicitly protected liberty under the constitution, and since there is no constitutional problem for requiring a person to buy things such as permits and safety classes in order to exercise said constitutional liberty, the requirement to buy something cannot in and of itself create a constitutional problem.

A third question then arises: Whether the specific requirement of purchase is reasonable, in that it reasonably promotes the aforementioned government interest. Requiring a person to take safety classes as a prerequisite for carrying a handgun reasonably promotes the government's interest to ensure public safety. However, if a law (for example) required a person seeking a permit to carry a handgun required that you buy a 12 month subscription to Good Housekeeping magazine, that requirement would NOT reasonably promote the government's interest in public safety. Therefore, such a requirement would be unconstitutional.

And yet you have failed to show ONE SINGLE federal law that requires the purchase of anything. You fell back on car insurance which is not a mandated purchase at all and every law that covers car insurance is a state law. You need to show a FEDERAL law as that is what we are talking about. This is a clear abuse of the constitution and the left is screaming about it. If congress feels the need to pass a healthcare mandate then there is a process to amend the constitution, USE IT. Until that happens, this law is clearly unconstitutional.

 

[Big Fitz]

You see... The left doesn't care about constitutionality. They're trying to build a utopia. THEIR utopia in which people who resist are expunged.

A Brave New 1984 Handmaid's Tale... with liberty and justice for them.

If you're referring to me when you say "the left" you should first know that I am no on "the left" and you should also know that I do not support the HC bill. I wish it had never passed and I'm even so much against it that I am hoping for its repeal even despite what would be normally be my overriding dislike for back and forth legislation with every changing of the Congress. But the HC bill is not unconstitutional from where I sit, and trying to fight it on faulty grounds will not do any good. Better to fight it on the undesirability of the measure, and to hopefully have better alternatives put forth.

It wasn't at you, it was adding commentary.

But if it is constitutional, what power is given to the federal government that allows them to do this? I'd like an enumerated power please, not a 'good and plenty' clause "discovered" during the New Deal that never existed before then.

 

[Greenbeard]

But if it is constitutional, what power is given to the federal government that allows them to do this? I'd like an enumerated power please, not a 'good and plenty' clause "discovered" during the New Deal that never existed before then.

McCulloch was decided long before the New Deal.