This is the first thread of debate. I'm sure the initial posts will expand as this grows; however, in favor of creating a topic, I'm going to keep this one short.
The Appeals Court has ruled that the mandate for the Health Care Bill has been deemed unconstitutional. This will eventually lead to a Supreme Court challenge, but it behooves us to discuss this sooner rather than later.
Why is it unconstitutional? Why should it be consider good law and necessary for the bill to proceed? If it is unconstitutional, does this effectively kill the bill or is it merely an additional point in an otherwise effective piece of legislation?
Discuss.
Let's start this out right: The above post is partially correct. The individual mandate has been stuck down by the US District Court in Richmond, Virginia. However, the individual mandate has been upheld in another district court challenge in VA and is likely headed to the 4th Circuit. Additionally, the mandate has been upheld in Michigan. I have heard conflicting reports as to whether the 6th Cirucit has heard the case, but I will try to check when I get a moment. Personally, I agree with the court in Richmond that the individual mandate is unconstitional.
ReplyDeleteWhy is it unconsititonal? The constitional gives the federal government enumerated powers, one of those being the power to spend in the general welfare (aka the Spending Clause). Under this provision, the government has the power to spend money however it sees fit. States have a power called the Police Power, which enables them to legislate in the health, safety, and general welfare of their citizens. This is problem with the health care legislation, the federal government is doing something with the health care mandate other than spending. The federal government has argued that the mandate is allowed under the commerce clause. to be continued...
Ok, I got side tracked, but here it is
ReplyDeleteOn Jan 19, 2011 4:35 PM, "Ryan Lane" wrote:
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> in european governments healthcare is an enumetated right. The creation of germany was predicated on it. In ours it is not.
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> But when I said we would end up like France, I was eluding to more than healthcare, we will lose state soverignty in toto.
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> The reason Mass. can pass healthcare is because states are soverign under our constitution, only limited bt the powers they gave up to the fed. This power is also referred to as the police power, the ability to legislate in the health, safety, and general welfare of the(ir) public. The fed has point to a specific provision of the constitution for the power to do anything. For example, the power to spend in the general welfare persuant to the spending clause.
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> The mandate is troubling because theres no power the fed can point to, instead they argue that their ability to regulate commerce between the states gives them authority. Usually, interstate commerce includes item that travel between states, or is in the stream of interstate commerce. However, health insurance does not crosz borders. Except in very limited cases, you have to buy insurance in your state. So thats an issue. The fed dealt with that by claiming, health insurance, in the aggregate, affects interstate commerce. Thats not standard law.
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> Another issue, and never before argued definition of interstate commerce, is defining economic activity to mean not buying something. Under the current, I would argue stretched, interpretation of the commerce clause, the Supreme Court has said the fed has power to define economic activity. But this is the first time the fed has attempted to define economic activity as not buying something. Economists define all activity in terms of actions and inactions.
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> So under the fed.'s interpretation, it can regulate economic and non economic activity that is exclusively dealt with within a states borders (with very limited exceptions) because in the aggregate its a big part of gdp. Oh, and the icing, it can penalize individual citizens, not states, for failing to comply. Thats not between states. In facr, this sounds a lot like the police power, ie the definition of state (not federal) power.
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> And thus by using the commerce clause, we have given the fed the power of the states and turned the constitution on its head. The tenth amendment is no longer a truism. Thats how we become france, a fed govt and thats it, since states will only be able to legislate in the shadows between fed laws.
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> Im not saying that indigent care isnt an issue, it clearly is, but blowing up the entire social compact of america to address it so congress and/or states dont have to raise taxes not the answer.