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Constitutional Challenges To The Health Bill

Orrin Hatch and Kenneth Blackwell lead the "intellectual" charge:

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce. [. . .] It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

Even if this were true (and it is not as the bill's enforcement mechanism is a tax on persons who do not purchase health insurance), Hatch's argument is faulty. While mandates applied to individuals is not an everyday occurence (the differentiation of participation in a federal pension and health insurance system (Medicare and Social Security) is not apparent to me), application of mandates to corporations is quite routine. Hatch would argue that businesses are "choosing to engage" in such activity, but it would be the only time ever Hatch will have made such a distinction. More . . .

In reality, this is all silly talk as no one is going to file a suit against the mandate that gets addressed on the merits. The problem is a result of the limitation of standing. In the 2007 case, Hein v. Freedom from Religion Foundation, Justice Alito wrote:

It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus.

So who gets to sue to advocate Hatch's theory? No one. That's who. Hatch's other "constitutional" objections include:

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

Heh. Hatch needs to tell us another one. Unlike the previous argument, one could see a State having standing to challenge these pork deals. But imagine if this one works. Every law has differentiating benefits so the courts would have to determine what parts of legislation are "dirty deals" and which ones are a natural consequence of the effects of legislation. No court would ever dip its toe in such a mess.

Finally, Hatch argues:

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government

This is Hatch's best argument. Yet his own text - "or says that the Secretary of Health and Human Services will step in and do it for them" - destroys his argument. States are not, in fact, mandated to do anything. They have the option to create exchanges. If they do not, the federal government will. Of course, adopting the House bill would also obviate this argument. Maybe proponents of a national exchange could pretend to take Hatch's argument seriously.

But make no mistake - this is all show. No one is going to seriously challenge the health bill on constitutional grounds.

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  • Display: Sort:
    Aside from the legal aspect, though (5.00 / 3) (#2)
    by Cream City on Sat Jan 02, 2010 at 01:57:19 PM EST
    the political benefits could be useful for Repub candidates this year, rallying the base (and others) by claiming that they will pursue this.

    After all, pols will be pols -- making promises they never really plan to keep.  We certainly have seen how effective that sort of duplicitous campaign can be.

    They should pursue it (5.00 / 2) (#8)
    by mexboy on Sat Jan 02, 2010 at 02:33:58 PM EST
    Calling the fine a tax is fallacious.

    Even if this were true (and it is not as the bill's enforcement mechanism is a tax on persons who do not purchase health insurance),

    The definition of a tax, according to investorsword.com is: A fee charged ("levied") by a government on a product, income, or activity.

    This is clearly a penalty for those who can't afford to buy insurance or won't do it.

    I'm with Hatch on this one. They must find ways of destroying this horrible bill that will fatten the pockets of the insurance companies on the backs or hard working citizens.

    I never thought the day would come when I would agree with the Republicans over the party I used to call home my entire voting life.

    Interesting (5.00 / 1) (#14)
    by Big Tent Democrat on Sat Jan 02, 2010 at 03:25:43 PM EST
    Cap and trade has no chance then.

    Parent
    Are they taxing Cap and Trade? (5.00 / 2) (#15)
    by mexboy on Sat Jan 02, 2010 at 03:35:59 PM EST
    Also, Cap and Trade would fall into a different category.

    Pollution is a byproduct in industries that make or produce goods or services for profit, which are taxable.

    Not buying something falls into none of those categories. They're trying to obligate citizens to buy something or penalize them for not doing so. That is not a tax, it is a penalty, period. How can you tax someone for doing nothing?

    If you're more comfortable with levying a fee on pollution, instead of calling it a tax, I'd agree with you.

    Parent

    the Congressional power to levy a "fee" (none / 0) (#21)
    by Big Tent Democrat on Sat Jan 02, 2010 at 04:26:29 PM EST
    will be the taxing power.

    Parent
    Yes, (5.00 / 3) (#24)
    by mexboy on Sat Jan 02, 2010 at 04:36:25 PM EST
    and it should be called a penalty, unless they tax the product itself.

    Fining people for not buying insurance is like taxing people for not exercising, after all, exercise promotes good health and can prevent certain illnesses.

    What do you say? Let's "tax" people who don't belong to a gym. I'd say about a thousand dollars a year, and let's let the IRS collect that "tax". Oh, and we should let the gyms form a lobbying group and help us write the legislation.

    Parent

    A Mandate That Rewards Private Corporations (5.00 / 1) (#36)
    by norris morris on Sun Jan 03, 2010 at 08:27:41 PM EST
    This is constitutional?

    I will be forced to buy Insurance without having free choice, and be punished by imposition of a tax monitored by thge IRS?

    Parent

    The act of not buying is an activity. (none / 0) (#18)
    by jimakaPPJ on Sat Jan 02, 2010 at 04:14:15 PM EST
    Nonsense (5.00 / 1) (#22)
    by mexboy on Sat Jan 02, 2010 at 04:27:56 PM EST
    That is illogical and utterly absurd.

    Parent
    It's simple really: (5.00 / 1) (#23)
    by andgarden on Sat Jan 02, 2010 at 04:32:11 PM EST
    if you don't buy insurance, you are taxed at a higher rate. It's like not getting a deduction when you don't give money to charity.

    Parent
    Then why are we not talking about (5.00 / 1) (#35)
    by Spamlet on Sun Jan 03, 2010 at 02:41:22 PM EST
    the "tax deduction for purchase of health insurance"? I don't buy this analogy, but it does tend to underline a basic dilemma, namely, that the same people who could not afford to buy (mandated) health insurance probably can't afford much in the way of charitable contributions, either. In any case, Obama himself, during the primary debates, talked about FINING people who did not buy health insurance (that was when he was still against mandates). He did not refer to this FINE as a "tax," as the Dems are doing now. The GOP is smart (if wrong in terms of their legal argument) to focus their attack on the mandates. Now it becomes harder for the Dems to argue for any mandate at all--even a mandate tied, as one should be, to a public health care system instead of to Obama's POS private insurance company bailout.

    Parent
    Prof. of Constitutional Law at Yale (none / 0) (#26)
    by Peter G on Sat Jan 02, 2010 at 09:45:26 PM EST
    Jack Balkin, analyzes the constitutionality of the mandate on his blog, Balkinization, and concludes that it is not only constitutional, but that it's "not even a close question."  He calls it a "penalty tax," also justifiable as an "excise tax."

    Parent
    What if the... (none / 0) (#28)
    by EL seattle on Sun Jan 03, 2010 at 02:31:18 AM EST
    ...plan's supporters don't want it to be called a tax?  Is there anything about this that makes it legally/constitutionally different in some way from a tax?  Come election time, won't many of this plan's supporters want to find some way of avoiding the "biggest tax increase in history" label?

    Parent
    I'm surprised that so few people here... (5.00 / 1) (#10)
    by Yes2Truth on Sat Jan 02, 2010 at 02:44:02 PM EST

    seem concerned about the insidious effects
    of supporting legislation that mandates directly enriching private companies at the expense of ordinary taxpayers.

    I guess Obama's pollsters told him not to worry about Democratic voters objecting to such blatant
    corporate welfare.

    Mandating the purchase of auto liability insurance
    was only the beginning.  

    What do you all think is next in the way corporate
    giveaways which you're willing to support (if the
    PR rationalization sounds reasonable to you)?

    Sigh (none / 0) (#13)
    by Big Tent Democrat on Sat Jan 02, 2010 at 03:24:51 PM EST
    Don't you hate when people answer your comments with a sigh?

    Anyway, saying something is constitutional is not the same as agreeing with the policy.

    I happen to AGREE with mandates (with a public option).

    Parent

    No one said that constituional = agreement. (none / 0) (#19)
    by Yes2Truth on Sat Jan 02, 2010 at 04:23:10 PM EST

    That would be a very naive position.  Hopefully,
    if a case were to get to the SCt on this issue,
    their decision will be that it is UNconstitutional.

    I know that you "AGREE" with mandates.  That's the very reason why I asked what you think might be the next one that you'd support.  How about one
    mandating that all unemployed people are required
    to hire a career coach for a minimum of x number
    of hours?  Would you "AGREE"/support such a
    mandate?


    Parent

    No (none / 0) (#20)
    by Big Tent Democrat on Sat Jan 02, 2010 at 04:25:37 PM EST
    I would not.

    Parent
    Fannie and Freddie Next (none / 0) (#37)
    by norris morris on Sun Jan 03, 2010 at 08:38:08 PM EST
    Billions were given quietly Christmas Eve to these two corrupt and inept private mortgage
    entities basically set up to steal taxpayer money in scandalous subsidizes housing.

    Frauds galore, and Rham was previously involved but investigation halted when Obama became Pres.

    This is disturbing.

     

    Parent

    You are redefining what taxes are (5.00 / 3) (#25)
    by mexboy on Sat Jan 02, 2010 at 04:44:28 PM EST
    taxed on what?

    I get taxed when I buy a car, stereo, food, clothing, or in the income I earn producing stuff. But you are suggesting I should now be taxed on what? on nothing?

    Can we have a tax people for not speaking English? French? Spanish? Japanese?  

    Why do they fine people who don't have car insurance instead of taxing them?

    I Can B Taxed (none / 0) (#38)
    by norris morris on Sun Jan 03, 2010 at 08:41:32 PM EST
    for expressing my free will, which means

    Taxation without representation.

    Parent

    As for standing, (5.00 / 1) (#27)
    by Peter G on Sat Jan 02, 2010 at 09:53:13 PM EST
    I don't see that as a problem. True, no one is likely to have standing to sue to enjoin the law (the suit would also be barred by the Tax Anti-Injunction Act, anyway), but anyone hit with the penalty tax will be able to raise the constitutional question as a defense.  Not that I think the arguments against the bill have merit, just pointing out that there is a clear forum for litigating the issue.

    What is/isn't Contitutional is up to 5 justices (5.00 / 1) (#29)
    by BobTinKY on Sun Jan 03, 2010 at 09:03:46 AM EST
    and with this crew, activist as it is, I would not put anything out of the realm of possibility.

    Yep (none / 0) (#31)
    by TeresaInSnow2 on Sun Jan 03, 2010 at 11:07:15 AM EST
    see Bush v. Gore.  Of course the whole crew of idiots wasn't there in 2000, but their numbers have grown since then.

    But in this case, if they make a one-off ruling as they did in Bush V. Gore, I'm all for it.

    Parent

    Two tweaks and I would be OK with it (none / 0) (#39)
    by BobTinKY on Mon Jan 04, 2010 at 08:29:32 AM EST
    fund it by taxing high incomes as in the House version & not insurance plans as the Senate proposes, and

    strenghtne enforcement oversight of the 85% medical payment to adminsitrative cost ratio.  This provisions could effectively transform insurers into regulated utilities.  Having companies with regulated rates of return  bid to supply insruance to portions of a sginle nation-wide risk pool would be, to me, almost as good as single payer.

    I think if the mandate and forced payments are as bad as BTD and others here fear, then that will only increase pressure on Dems to add a cost effective robust public option or more heavily regulate insurer earnings.  

    Of course the GOP will play it up to repeal all of it.

    Parent

    The bill forces us to buy a defective product (5.00 / 5) (#33)
    by lambert on Sun Jan 03, 2010 at 12:56:23 PM EST
    BTD writes:
    While mandates applied to individuals is not an everyday occurence (the differentiation of participation in a federal pension and health insurance system (Medicare and Social Security) is not apparent to me), application of mandates to corporations is quite routine.

    Three points:

    1. Being forced to participate in SS is not the same thing as being forced to buy a product from a private corporation. In essence, the bill mandates that citizens support a private corporation's profit margin (or "rent"). Why is that not a taking, in the way that ordinary taxes are not?

    Let's turn the question around: Under the theories of Balkin, et al, is there any product that the government could not force us to buy? For example, if, as a matter of public policy, the government wanted to support agribusiness even more, could they mandate the purchase of a certain ration of products that contain high fructose corn syrup? Under this theory, why not?

    1. It's one thing to be forced to purchase a product. It's another thing to be forced to purchase a defective product. Do the math like Marcy does. Plenty of people are going to be forced to buy junk insurance and then get nothing.

    2. Finally -- and only tangentially -- reverse engineering the way real persons should be treated from the way artificial persons are treated ("application of mandates to corporations is quite routine") strikes me as making a lot of things that are already bad, worse. We should be abolishing corporate personhood, not seeking to reinforce it.


    +1,000 (none / 0) (#34)
    by Spamlet on Sun Jan 03, 2010 at 01:20:54 PM EST
    Don;t buy the insurance (none / 0) (#40)
    by BobTinKY on Mon Jan 04, 2010 at 08:33:48 AM EST
    and pay the tax instead.

    What is unconstitutional about that?  Look at it the other way, you can lower your taxes, avoid the tax, by buying insurance.  Out tax system has deductions and credits for all sorts of things.

    The Constitutional argument appears to me frivolous but as I said earlier, what any 5 of our brilliant and oh so lofty justices say is Constitutional, is Constitutional.

    Parent

    And if the ER excludes me? (none / 0) (#41)
    by lambert on Mon Jan 04, 2010 at 07:29:12 PM EST
    Which I'm betting they will have a policy of doing?

    Parent
    Bingo (none / 0) (#1)
    by andgarden on Sat Jan 02, 2010 at 01:49:50 PM EST
    The third argument is the best one and the only one worthy of more than a sentence IMO (I assume he's suggesting a New York v. United States problem). FWIW, I think the Senate voted down several similar points of order against the bill just before passage. The votes should have been almost unanimous, but apparently many Senators are unfamiliar with the laws of Federalism (or don't care, more likely).

    Well, 13 state AG's disagree with you (none / 0) (#3)
    by jimakaPPJ on Sat Jan 02, 2010 at 02:03:37 PM EST
    Letter to Reid and Pelosi here.

    Of course who are they??

    Political hacks (5.00 / 1) (#4)
    by Big Tent Democrat on Sat Jan 02, 2010 at 02:06:07 PM EST
    that's who.

    Parent
    And tuned into what (5.00 / 1) (#5)
    by jimakaPPJ on Sat Jan 02, 2010 at 02:22:55 PM EST
    their citizens see and want.

    Parent
    Empty bloviating is what they want? (5.00 / 0) (#7)
    by Big Tent Democrat on Sat Jan 02, 2010 at 02:31:28 PM EST
    Ok.

    Parent
    I would say they are responding to the desires (5.00 / 1) (#17)
    by jimakaPPJ on Sat Jan 02, 2010 at 04:11:44 PM EST
    of their voters.

    And who knows? They may have a valid legal point.

    Parent

    Republicans for judicial activism. . . (none / 0) (#9)
    by andgarden on Sat Jan 02, 2010 at 02:42:57 PM EST
    Well. (none / 0) (#12)
    by phat on Sat Jan 02, 2010 at 03:10:16 PM EST
    I think I've decided, as a Nebraskan, to ask my state attorney general to look into federal expenditures at Fort Jackson. I feel cheated.

    Parent
    General Welfare clause, etc. (none / 0) (#16)
    by christinep on Sat Jan 02, 2010 at 04:08:10 PM EST
    So...the Clean Air Act. This federal act--in 1970 & amended in 1990--is grounded in the Commerce Clause and the General Welfare Clause. A critical portion of the Act requires states to demonstrate meeting the several CAA standards by set or extended dates--a strong mandate to the states that involves the loss of $ and enforcement authority in the event the mandates are unmet. Also: There is a particular section in the Act waiving certain requirements for the State of California (and, known as the California waiver provision.) In light of the lightweight arguments made by the Republican Attorneys General, my recollection turned to the then-breakthrough basis for national environmental legislation in our country.

    Parent
    Hatch makes sense to me (none / 0) (#30)
    by NealB on Sun Jan 03, 2010 at 10:52:24 AM EST
    I'm just a rube, what do I know? But everything Hatch says is accurate, whatever bull a lawyer might come up with to the contrary. I'd vote for a candidate that argued against the individual mandate by saying it's unconstitutional; the individual mandate is just plain wrong. And the more Democrats try to tell my I'm an idiot about this, the more I'll be chomping at the bit in anticipation of voting them out of office and out of power.

    Let the bullying begin....

    I'll vote (5.00 / 1) (#32)
    by TeresaInSnow2 on Sun Jan 03, 2010 at 11:08:40 AM EST
    for anyone who is against mandate without cost controls.

    It may not be a good legal strategy, but it's an excellent political strategy.  Republicans are going to use this "policy" to piss off the constituency.  I'm going to laugh my head off, and of course keep the popcorn at the ready.

    Parent

    Again I ask... (none / 0) (#42)
    by lambert on Mon Jan 04, 2010 at 07:54:57 PM EST
    Let's turn the question around: Under the theories of Balkin, et al, is there any product that the government could not force us to buy?

    For example, if, as a matter of public policy, the government wanted to support agribusiness even more, could they mandate the purchase of a certain ration of products that contain high fructose corn syrup?

    Under this theory, why not?