Peter Suderman asks "How politically toxic is Obamacare?" He's not sure but I thought his handy wrap-up of where we stand so far – coupled with Obama's road trip to convince seniors they'll really like it (honest!) once it's fully implemented – indicates that there's a lot of ammunition amongst those of us who believe it's a terrible, and terribly expensive, piece of legislation:
And at this point, I suspect it will be more difficult to defend the law than before it was passed. Since its passage, bad news has continued to pile up, and many the claims made about it have become increasingly difficult to maintain. We've already seen reports that the total cost will be more than expected, that the administration isn't hitting its deadlines, that it won't bring overall health care spending down, that some health insurance premiums will probably rise, that Medicare benefits for many seniors are scheduled to go on the chopping block, that it will strain emergency rooms, and that employers expect medical costs to rise and are looking at dropping millions from their health care plans—all of which is to say that what the law's advocates sold to the public isn't quite what they delivered. If protecting the public from distortions and misrepresentations is really what these folks hope to do, maybe they ought to start with their own side.And don't forget: "Legal challenges to Obamacare continue." This comment echoes my feeling exactly: "If the federal government is empowered to require you to buy a product or service from a private company, when that product or service is, by law, only offered intrastate: Just exactly what is not within its Commerce Clause powers?" Good question!
5 comments:
Some say "legal challenges continue." I say "fool's errand," or "pandering to the hardcores." Part of the AG's stated argument is that Virginia has been harmed because the federal health care law purports to invalidate a Virginia state law. That pesky Article VI, Clause 2 of the Constitution rebuts:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Law of any State to the Contrary notwithstanding."
Another part of the AG's argument is that the British tax on tea did not compel colonial Americans to buy tea, which means they can't make you buy insurance today. I'm not sure that I'd want to prop my case up on a previously uncited precedent based on what a foreign country didn't do 235 years ago.
"Just exactly what is not within its Commerce Clause powers?" Good question!
It sure is. And it's already been answered. Here's what the Supreme Court said:
"The principal and basic limit on the federal commerce power is that inherent in all congressional action—the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the States will not be promulgated."
Can't we agree to disagree?
The Commerce Clause states that Congress can regulate interstate commerce.
The current health care law is trying to regulate the non-commerce (uncommerce?) of an intrastate product.
Some of the people who liked to say "elections have consequences" in 2003 and 2005 now wish to ignore the Supreme Court decision that specifically declares the fundamental remedy for (perceived) federal abuse of the Commerce Clause to be the next election.
I also seem to recall some previous negativity about activist judges legislating from the bench and rewriting policy.
The health care bill includes specific language to thwart these lawsuits. It contains an amendment titled "Empowering States to Be Innovative" which allows Virginia or any other state to opt out of the individual mandate if they elect to decline federal funds and meet the bill's coverage requirements in some other manner. Individuals can also opt out of the program by paying a tax or fine, and there is ample precedent for Congress' power to impose those.
The counterclaim includes stupid arguments about state law being violated, or the 1773 tea tax. The lawsuit is plainly meritless, if not frivolous. It's a new "burning the flag" gimmick meant to win elections, not cases.
Capt. O: You clearly have more legal training than I do. A couple questions:
1) If Virginia decides to opt-out of the individual mandate, does it still have to pay federal taxes supporting the mandate for the other 49 states?
2) Has Congress ever imposed a fine for *not* buying something?
3) If the Commerce Clause now says you have to buy something in the interest of "regulating commerce" is there any legal reason why Congress can't force you to buy a (government-owned) Chrysler Sebring?
Respectfully submitted.
1. Yes, of course it does. The 1040 form doesn't include check-off boxes exempting a given taxpayer, or type of taxpayer, from subsidizing the Iraq war, the National Endowment for the Arts, TANF welfare, replacement bulbs for the White House Christmas tree, or any other spending he/they personally oppose. There are numerous examples of tax protesters refusing to "support" the various wars our country has fought, by paying none or part of their tax burden. Court cases to legitimize these actions have been unsuccessful, and the protesters were often convicted or fined.
2. Some argue that by personally abstaining from "commerce," one does (or should) evade the Commerce Clause. But 70 years ago, in Wickard v. Filburn, the Supreme Court ruled against this premise. (Specifically, a farmer was trying to avoid paying government-controlled wheat prices by growing cheaper wheat in excess of the government limit, for his personal use. The Court ruled unanimously that the power to regulate commerce inherently included the power to regulate the price at which commerce occurs. This had the practical effect of forcing the plaintiff to purchase what he was able to provide himself, in the general interest. The 9-0 decision includes the observation "Effective restraints on its exercise [the Commerce Clause] must proceed from political rather than from judicial processes," and has been invoked by the Court as precedent several times since. The case's conclusions would surely be applied to the health care law.
3. Health insurance is not a pick-it-up product like a car; it is more like government wheat pricing or Social Security or military service or other programs which also have specified financial value and tax liabilities. Auto insurance and life insurance are much more alike than health insurance and a car are. And yet the government mandates one type of insurance but not the other, because it promulgates the public interest to do so.
I don't know whether the legality of the mandatory "buy this car!" hypothetical would hold up. I doubt it will ever be tested. The most powerful impediment to it, and the other overly literal or absurd scenarios that are bouncing around the public discourse these days, is the one spelled out by the Court in the above quote. "Effective restraints on its exercise must proceed from political rather than from judicial processes."
Pretending that you're going to win the fight and overturn health care may or may not be winning politics - but forcing every man, woman and child to see the U.S.A. in their Chevrolet would definitely be losing politics.
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