Why "Defend" The Mandate?

By Big Tent Democrat, Section Other Politics
Posted on Thu Feb 03, 2011 at 08:34:47 AM EST
Tags: (all tags)

Share This: Digg!

A recommended dkos diary asks why Democrats are defending it. Earlier, I asked a similar question.

Yet, I've spent the past few days defending the constitutionality of the mandate. Why am I doing that? Beyond the fact that the mandate is in fact constitutional, I think there is a larger issue at stake - the radical right wing drive to delegitimize and "deconstitutionalize" government action.

Similarly, when Kelo v.New London was decided, the kneejerk "progressive" response was to excoriate the decision. I argued that not only was the decision correct, it was also progressive:

[The dissent] simply has no support in the jurisprudence or in common sense. Indeed, it is the heart of the dangerous jurisprudence of the narrow readings of the civil rights amendments and laws by the Conservative wing of the Court. Always these Conservatives demand "findings" of past institutional discrimination by the state. Always, the Conservatives seek to limit the power of the State to act for the public good. This is more of the same. It is bad stuff. I believe that the Majority properly applied existing jurisprudence in a principled AND properly progressive way.

"First principles" matter. Not everything is sui generis.

Speaking for me only

< Thursday Morning Open Thread | New Unemployment Claims At 415K >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Why "Defend" The Mandate? | 45 comments (45 topical)

Readers Must Login or Create an Account to Comment

It may well be constitutional - I will (5.00 / 1) (#7)
by Anne on Thu Feb 03, 2011 at 09:36:49 AM EST

have to leave that to more educated minds than mine - and it may well be a matter that could change the landscape in ways people really have not focused on - again, I will have to leave that to experts to opine on.

That being said, I don't like the idea that the government can declare that I must have a particular thing, and then give me no other choice but to obtain it through the private market. Sure, if I am poor enough - which I am not - it might help me pay for it, but given the rapid rise in premiums, I suspect a lot of people are going to end up paying for - and the government will end up subsidizing - "coverage" that will actually cover very little but catastrophic care. It's going to do nothing to reduce the cost of care, nothing to solve the massive overhead costs, nothing to improve the economy in general.

I guess I just don't see it as something that is in the public interest as much as it is in the interest of private companies.

It would have been nice if we were fighting over a mandate - and a principle - that, if preserved, was really going to improve access and affordability of care, but it's not. And it irks me that the possible bad result of the mandate takes a back seat to the underlying legal principles. Or so it seems.

As much as overturning the mandate could open the door for the delegitimization of government action - and I can certainly see someone making the case that if this is unconstitutional, so it Medicare - what precedent does finding it constituional set that perhaps no one is looking at? Or is there nothing of negative consequence that flows from this?

Policy wise (none / 0) (#8)
by Big Tent Democrat on Thu Feb 03, 2011 at 09:40:56 AM EST

I would have preferred autoenrollment in a public insurance program.

This also would have eliminated any question of constitutionality and forced a GOP attack on Medicare.

But the constitutional principle is important too.


: If we had gotten this though (none / 0) (#16)
by Militarytracy on Thu Feb 03, 2011 at 11:53:16 AM EST

We wouldn't be anywhere near this place at all or having much debate along these lines. People would have been covered, and the government would have been on the hook for making that affordable too...and it would have made it affordable for everyone then with almost everyone also being covered at the same time.

I would (5.00 / 1) (#14)
by TeresaInSnow2 on Thu Feb 03, 2011 at 11:28:39 AM EST

I would defend a mandate WITH cost controls (like the option to participate in public insurance, and the notion that the insurance will be FREE for those who can't afford it, even with subsidies.)

The nightmare scenario is the mandate with no MEANINGFUL cost controls. 2014 will be a nightmare for Democrats. And they've brought this on themselves.

Its progressive (none / 0) (#1)
by Abdul Abulbul Amir on Thu Feb 03, 2011 at 08:42:07 AM EST

Its progressive if progressive means unbridled state power.

Expansive (5.00 / 1) (#3)
by Big Tent Democrat on Thu Feb 03, 2011 at 08:53:52 AM EST

not unbridled.

There is a reason there was a Constitutional Convention in 1787 - the right wing vision of a weak federal government failed.


WOW (none / 0) (#19)
by DaveCal on Thu Feb 03, 2011 at 01:25:01 PM EST

"the radical right wing drive to delegitimize and "deconstitutionalize" government action."

This is a big problem in political discourse today. Apparently we can't have honestly held differing opinions on anything. We either agree with you, or we are all part of some radical drive (vast right wing conspiracy?) to "deligitimize" government action.

If the government does something outside its constitutionally provided power, then that government action is, by definition, NOT LEGITIMATE. It doesn't take a radical drive to make it so.

Frankly, with this type of rhetoric, you are trying to do the exact thing you purport to oppose. You make claims like this in an attempt to deligitimize any dissent.

I know you like this Health Reform Law and you think (or more likely hope) that it's constitutional. You're entitled to that opinion. I, on the other hand, am equally as certain that it is (and should be declared) unconstitutional. It doesn't make me part of a radical right wing conspiracy because I disagree with your opinion.

I really wish you could be more measured in your rhetoric about this stuff.

Exit Question: If this is consitutional, what (if any) products would it be IMPROPER for the government to force me to buy?


What you know (none / 0) (#20)
by Big Tent Democrat on Thu Feb 03, 2011 at 01:56:01 PM EST

"I know you like this Health Reform Law ."

Obviously you have not read me on the subject.


Really? (none / 0) (#22)
by DaveCal on Thu Feb 03, 2011 at 02:09:45 PM EST

You certainly like it more than you dislike it. You don't want it repealed or overturned. And you do think its constitutional.

But nice deflection.

....and the answer to the exit question?


I thought the Iraq War (none / 0) (#25)
by Big Tent Democrat on Thu Feb 03, 2011 at 02:22:45 PM EST

was legal but opposed it bitterly.

I think the Deal is legal and oppose it bitteerly.

Constitutional does not mean "policies I agree with."

As for the "exit question," you treat stating that the right wing is attempting to delegitimize government action as an insult.

But it is precisely the conservative project don't you think? It is perfectly ok to have that view. I strongly disagree with it.

I have a problem with the notion of making the Constitution be "whatever policy I agree with."

Certainly the government can get out of the social safety net business constitutionally. Or remain in it constitutionally.

Right wingers liked the phrase "criminalizing foreign policy differences" when torture was discussed. That seemed ridiculous to me in that Reagan signed the UN Convention on Torture and laws were passed criminalizing torture. The treating torture as not criminal was the politicizing here.

In this case, right wingers have decided to "constitutionalize" policy differences on health insurance policy.

That is my point.


The mandate may very well be good policy (none / 0) (#26)
by kramartini on Thu Feb 03, 2011 at 04:47:21 PM EST

but I absolutely do not believe that it is constitutional, especially in light of Judge Vinson's arguments.

It seems to me that it is long past time for the left to bite the bullet and simply try and amend the Constitution to give Congress power to regulate all economic activity. It may very well succeed.

That would be a more honest approach than trying to invent progressively more fanciful definitions of interstate commerce.


UHHH (none / 0) (#28)
by andgarden on Thu Feb 03, 2011 at 05:01:11 PM EST

Congress can regulate any economic activity worth regulating with the Constitution we have. Nobody seriously questioned this for 60 years, and nobody intelligently questions it today.


How about if the revision includes (none / 0) (#29)
by oculus on Thu Feb 03, 2011 at 06:15:20 PM EST

getting rid of the Senate?


: Too much risk (none / 0) (#30)
by andgarden on Thu Feb 03, 2011 at 06:16:52 PM EST

Especially the question of just how you might get rid of the Senate.

: Getting rid of the Senate would require the (none / 0) (#32)
by kramartini on Fri Feb 04, 2011 at 09:19:39 AM EST

consent of ALL states.
Not sure that Delaware and Alaska would go along with that.

There are serious and intelligent people (none / 0) (#34)
by kramartini on Fri Feb 04, 2011 at 09:22:47 AM EST

who raise these questions.

Ad hominum attacks contribute nothing to the debate.


I don't know whether these people (none / 0) (#36)
by andgarden on Fri Feb 04, 2011 at 09:31:20 AM EST

are serious and intelligent. Their arguments are not, though.


: No who's using ipse dixit? (none / 0) (#40)
by kramartini on Fri Feb 04, 2011 at 10:05:48 AM EST

(I never thanked you for teaching me a new term!)

So (none / 0) (#31)
by jbindc on Fri Feb 04, 2011 at 09:08:16 AM EST

What about Judge George Steeh's ruling?

"Far from `inactivity,' by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance."

Except that not everyone who is (none / 0) (#33)
by kramartini on Fri Feb 04, 2011 at 09:21:41 AM EST

currently alive will seek health care before they die...


I bet (none / 0) (#35)
by jbindc on Fri Feb 04, 2011 at 09:28:04 AM EST

very few people in this country will forgo seeking out any form of health care before they die.


: "Very few" is not none. (none / 0) (#41)
by kramartini on Fri Feb 04, 2011 at 10:09:42 AM EST

And unless one can prove that any particular individual is not one of those very few, using evidence available at the time the penalty is imposed, one cannot establish that he or she had ANY impact on interstate commerce, even using aggregation theory since, as Judge Vinson pointed out, zero times any positive integer equals zero.

The mandate (none / 0) (#37)
by andgarden on Fri Feb 04, 2011 at 09:32:43 AM EST

is an income tax on individuals who choose not to buy insurance. It is not a tax on individuals who cannot afford insurance.

You do not have a Constitutional right to pay taxes identical to an individual who makes different purchasing decisions.


Congress probably could (none / 0) (#38)
by kramartini on Fri Feb 04, 2011 at 10:03:06 AM EST

impose a special health care tax, and then give a credit or deduction for those who bought coverage in the private market. (Okay, strike probably.)

Actually, it could just provide the tax deduction or credit to buy health insurance (or a Chevy Volt or Fig Newtons.)

But Congress instead imposed a mandate and a penalty. Bad move.


Distinction without a difference (none / 0) (#39)
by andgarden on Fri Feb 04, 2011 at 10:04:37 AM EST

or any explicable Constitutional significance. The tax is on individuals who choose not to buy insurance but could otherwise afford to.


Both sides in the Virgina case (none / 0) (#42)
by kramartini on Fri Feb 04, 2011 at 10:12:33 AM EST

acknowledge that the distinction between tax and penalty is constitutionally significant.

There are no serious or intelligent arguments otherwise. (Sorry. I couldn't resist!)


The Mississippi judge calls it (none / 0) (#43)
by andgarden on Fri Feb 04, 2011 at 10:28:08 AM EST

a "tax penalty."

I don't care what you call it; it is a tax.


: Not all penalties are taxes (none / 0) (#45)
by kramartini on Fri Feb 04, 2011 at 10:37:29 AM EST

and not all taxes are penalties.

The Virigina case (none / 0) (#44)
by jbindc on Fri Feb 04, 2011 at 10:28:35 AM EST

only applies because Virigina passed a law specific to Virginia that says it doesn't have to follow the HCR. The judge in Virignia also did not strike down the whole law either.

Also, to date, something like 15 challenges to the law have been thrown out of court.


I am not, and know not, of whom you speak (none / 0) (#27)
by DaveCal on Thu Feb 03, 2011 at 04:49:23 PM EST

Lots of generalities in that last post.

I wholeheartedly agree that the constitution isn't and shouldn't be "whatever policy I agree with". But I don't understand why you assume that I (or anyone else that sees this ACT as unconstitutional) see the constitution that way. You apparently leave no room for honest diagreement.

Look, no Commerce Clause case has every mandated that every citizen purchase a private product. That's a simple fact. So this Act is seeking to stretch the clause without court precedent. You may think it's fine. I do not. And it's not juducal activism to strike it down. It's not a right wing effort to "deligitimize" goverment action. Its the proper response that our laws provide when we think the congress has overstepped its authority.

If I think this is beyond the scope of congress' power, my recourse is to sue for a declaration that it's unconstitutional.

Contrary to your assertion, I do not see it as a case of right wingers "constitutionalizing policy differences on health insurance policy".

Frankly, if this ACT had said everyone must purchase a different product (even if it was a product I really like and think everyone should own) I would still argue against it's constitutionality.

That's really the issue for me, and that's why I asked the exit question (which you never answered). If this is constitutional, is there any product that the government would not be able to mandate that I purchase?


It is important to me that our government (none / 0) (#2)
by Militarytracy on Thu Feb 03, 2011 at 08:51:34 AM EST

have the power to protect the health of the nation. The HCR was very poorly done, but in my mind it sets a precedent that government has the right to protect the health of the nation.

Since my husband is now on meds that knock his immune system down because he has RA, the health of the public at large has new meaning for me too. And we have a lot of people with autoimmune disorders out there who can literally be killed by trying to live in an unhealthy society no matter how good their own healthcare coverage is.

I don't know how anyone can argue anymore that tis nobler for every American's healthcare to suffer the slings and arrows of outrageous fortune.

And how will letting the (none / 0) (#11)
by jimakaPPJ on Thu Feb 03, 2011 at 10:30:10 AM EST

government tell you you must purchase insurance improve the health of the nation??

What's next? You must purchase fruits and veggies?

What it does do, and the reason for its inclusion, was to improve the profits of the insurance corporations and expand the salaries of their leaders.


I understand that you fear where it ends (none / 0) (#12)
by Militarytracy on Thu Feb 03, 2011 at 10:51:14 AM EST

But government does have say in other realms too and those realms have an ending in all those realms too.

It is because of what the Republicans did to the debate and what the lobbyists did, that this was the best that could be obtained at this time...this was the only thing that could be obtained in order to begin to protect the health of the nation.

I'm ticked at this President because I think he is damned wuss always looking for the solution that is on the cheap for him, but he didn't do this by himself either. Crazy conservatives and the lobbyists were the driving force that drove us here, for now I guess.


Gotta disagree with you about this: (5.00 / 1) (#13)
by Anne on Thu Feb 03, 2011 at 11:26:05 AM EST

The debate went south from the moment Obama announced that we had to take single-payer off the table because (1) it would be too hard, and (2) besides, we needed to preserve our uniquely American tradition of employer-based coverage. This at a time when more people were losing their jobs and more employers were dropping or reducing coverage.

"Single-payer off the table" was a love letter to the insurance industry; it was as loud and as clear a message of "don't worry, we're going to take care of you" as it was possible to send without using those explicit words.

"The best that could be obtained at the time?" No, can't accept that, not when there was an opportunity to truly discuss all the possibilities, to educate and inform the public about those choices, and that opportunity was never taken advantage of. Imagine if you knew the entire range of possible treatments/procedures/approaches for your son's care, and hearing, "yes, we're aware of all of these things, but we won't even consider options A, B, E and G..." That's what Obama did, with the help of Democrats in the Congress: he loaded the dice, set up the conditions and parameters that guaranteed we would end up with less-than-satisfactory legislation.

Is he a wuss? No, he's not; he did exactly what he intended to do, with Priority One being to protect the insurance and pharmaceutical industries no matter what. Back room meetings and deals, to which we were never made fully privy, were a big part of making that happen.

Republicans did what they always do - they bitched and moaned and Obama's eyes lit up at the opportunity to "work together" and the thing got even worse. Women's health choices as a bargaining chip - now that was a bold move, huh?

And here we are. With a mandate to keep the insurance industry fat and happy, with no price controls on them other than a sternly worded letter or two from HHS, and the occasional finger-wag accompanied by a tsk-tsk. I'm sure that has the insurance industry shaking in its shoes...

And while they played a role, leveraging their interests against Obama's pathological need to please them, this is not the GOP's fault; this is Obama's baby.

Sorry to get so heated up over this, but the whole thing already makes me livid, and to have the blame for it put on how the GOP handled the debate, and what the lobbyists did, is just too much.


I hold him accountable for precaving Anne (none / 0) (#15)
by Militarytracy on Thu Feb 03, 2011 at 11:51:06 AM EST

I don't know where we would have ended up if he hadn't done that. And I don't know if he did it because he wanted to give a gift to the insurance industry or if he was geniunely too afraid to fight. I can speculate, but I have no solid evidence other than he did not fight when the people needed him to fight for them and mostly just fought to have some sort of legislation passed with his name on it. I have evidence that negotiated very very poorly for the needs to the people. That is all I have real evidence of.


We do have evidence the WH invited (5.00 / 1) (#17)
by oculus on Thu Feb 03, 2011 at 12:40:07 PM EST

health care industry bigwigs to to the WH and entered into an agreement before Max Baucus and his Wellpoint exec. assistant presented their plan. And, as I recall, same re big Pharm.


Yes, more evidence that our President (none / 0) (#21)
by Militarytracy on Thu Feb 03, 2011 at 02:09:25 PM EST

might never have cared so much about me or the you. But he has said that if he couldn't have gotten them onboard he could have gotten no place. So the only way to know if he laughs about all of us behind our backs and behind closed doors while he buries the knife in our backs and sells us out to powerful interests he hopes to hobnob with for the rest of his life is if I could have been a fly on the wall. I have no reason to think he didn't sell me out, just no evidence that he did. He says that everything he did he did for me and was the only way he could help me or do anything for me at all :)


Foreshadowing of "The Deal." (none / 0) (#23)
by oculus on Thu Feb 03, 2011 at 02:11:01 PM EST

: I think if I had any idea how (none / 0) (#24)
by Militarytracy on Thu Feb 03, 2011 at 02:13:46 PM EST

many deals have been made behind closed doors these past two years, and how many times we have ALL been played no matter what party we think we are affiliated with and represents our interests, the rest of my hair would go instantly go gray :)

I am glad (none / 0) (#4)
by andgarden on Thu Feb 03, 2011 at 08:59:10 AM EST

that you now agree with me.

: It is still not in play (none / 0) (#6)
by Big Tent Democrat on Thu Feb 03, 2011 at 09:23:04 AM EST

practically but certainly, on the plane of the battle of ideas, it is.

Precisely (none / 0) (#5)
by seabe on Thu Feb 03, 2011 at 09:05:56 AM EST

Not only was this found unconstitutional, he specifically cited the Medicaid expansion as unconstitutional. It's not so much about the mandate but about the welfare state in general; this case sets precedent that not even Medicare is safe anymore.

You had to bring up Kelo (none / 0) (#9)
by richj25 on Thu Feb 03, 2011 at 10:00:31 AM EST

Kelo provided the means for the powerful to use the
government to take from the powerless. If that's
progressivism then I want nothing to do with it.

Charles Beard (5.00 / 2) (#10)
by Big Tent Democrat on Thu Feb 03, 2011 at 10:11:07 AM EST

Anyway, either the government becomes accountable to the people, are we are f*cked in any event.


: Bingo (none / 0) (#18)
by gyrfalcon on Thu Feb 03, 2011 at 12:42:14 PM EST

The Constitution does not prevent every possible odious thing from being done by government. That's what elections are for. Because it's constitutionally permissible doesn't mean it's either moral or smart.