Dick Tuck
Board Troll
- Aug 29, 2009
- 8,511
- 505
- 48
The law is not general in nature like Social Security but specific. Therefore, it does not apply and the government concedes this point. There are more cases in the 80s that limit the general welfare clause. They are complicated and I do not wish to explain it for that reason. All you need to know now is that the Obama Administration is not arguing it for that very purpose. It does not apply. And trust me, if they thought it would add merit to their argument they would have used it. But they arent. They wouldnt throw away a tool that could perhaps secure themselves victory. They are, however, arguing the taxing power.
How would this be any different from the changes Reagan made to Social Security and Medicare, forcing self-employed to pay those taxes? To the contrary, the hard argument to make would be to claim something is a fine or penalty, when you are actually receiving something back, i.e. heath insurance.
But the case can still be made using the more subjective "general welfare" clause, and basing it on other law requiring all ERs to give treatment, and the costs being passed on to the rest of us. The fact that those who do carry insurance must pay a penalty for those who don't is a pretty compelling case.
But since this court is so ideological and reactionary, I think the administration was wise to argue it on taxation and interstate commerce.
I dont see your constitutional question. Moral equivalency is not a constitutional question. Nevertheless, the self-employed are already engaged in commerce. A guy sitting on his couch doing nothing is engaged in nothing. To follow the example of the ACA is to tell the guy on the couch that he must be self-employed so he can be regulated without ever having the intention to be self-employed. Furthermore, the Obama Admin argued the ONLY tools available to them. Its not that it was a smart choice but the only way it could be legitimately argued. The fact that the government made an unworkable law (That hospitals cannot turn away anyone on the account of their inability to pay), and thereby creating a market failure, doesnt give them the authority to make an unconstitutional one.
I't not moral equivalency, it's functional equivalency. The courts have been pretty clear about 10th amendment, when there's no INTERstate commerce. A CPA, a lawyer, a dentist or doctor are licensed to practice in a state. Yet, they are still required to pay Social Security and Medicare tax, even if they're working just for themselves.
As for what you claim is an unworkable law regarding hospitals not turning anyone away, I've seen clear abuses, such as give em an aspirin and bus them to skid row. Yet libertarians and conservatives have long claimed that a significant cause of our high cost of healthcare is due to people who couldn't pay their medical bill. That argument, in conjunction with this one, is sheer cognitive dissonance.