# Health Care Lawsuits Survive Dismissal in FL, VA **URL:** \ **Category:** Great Debates\ **Created:** [October 15, 2010, 2:35pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244 "2010-10-15T14:35:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 15, 2010, 2:35pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/1 "2010-10-15T14:35:58Z")
Federal courts in Florida and Virginia have issued rulings that keep alive the lawsuits challenging the constitutionality of the health care mandate. I still contend that the law is constitutional, but I no longer regard the contrary position as frivolous. > [@Florida v. Health & Human Services](#): > > To summarize the foregoing, it “clearly appears” from the statute itself, see Helwig, supra, 188 U.S. 613, that Congress did not intend to impose a tax when it imposed the penalty. To hold otherwise would require me to look beyond the plain words of the statute. I would have to ignore that Congress: > (i) specifically changed the term in previous incarnations of the statute from “tax” to “penalty;” > (ii) used the term “tax” in describing the several other exactions provided for in the Act; > (iii) specifically relied on and identified its Commerce Clause power and not its taxing power; > (iv) eliminated traditional IRS enforcement methods for the failure to pay the “tax;” and > (v) failed to identify in the legislation any revenue that would be raised from it, notwithstanding that at least seventeen other revenue-generating provisions were specifically so identified. ---
**Author:** ![jonesj2205](https://avatars.discourse-cdn.com/v4/letter/j/ecc23a/32.png) [@jonesj2205](https://boards.straightdope.com/u/jonesj2205)\ **Post date:** [October 15, 2010, 3:07pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/2 "2010-10-15T15:07:29Z")
So am I correct in understanding that by relying strictly on the Commerce Clause justification the constitutionality is less sure than if the bill had not been revised to eliminate references to taxes? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 15, 2010, 3:58pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/3 "2010-10-15T15:58:59Z")
> [@Bricker](#): > > Federal courts in Florida and Virginia have issued rulings that keep alive the lawsuits challenging the constitutionality of the health care mandate. > > I still contend that the law is constitutional, but I no longer regard the contrary position as frivolous. You really believe that penalizing people that are not involved in commerce is constitutional under the commerce clause? Or do you really believe the penalty can be considered a tax? ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [October 15, 2010, 4:02pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/4 "2010-10-15T16:02:35Z")
If it was a tax then it violates the Direct Tax issues (apportionment). It’s still unconstitutional though - if you sign off on this power of the Commerce Clause, then in effect there’s nothing that Congress can’t do. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [October 15, 2010, 5:02pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/5 "2010-10-15T17:02:33Z")
IMHO the core problem is that it’s easy and comfortable to establish shaky legal principles when the decisions being reached are popular and relatively uncontroversial. Then these principles become established as bedrock legal doctrine, and next thing you know all sorts of other things are based on them. I think the Founding Fathers who wrote the Constitution would turn over in their graves if they knew the Commerce Clause was being used in the manner that it’s used for the HCR Act. But I also think they would turn over in their graves at the manner in which the USSC has already interpreted it. Opponents of the current law are on their strongest ground when they compare the law itself to the Constitution. The ground gets a bit shakier when you compare the law to previous rulings on the subject. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 15, 2010, 5:11pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/6 "2010-10-15T17:11:41Z")
> [@Mr\_Smashy](#): > > If it was a tax then it violates the Direct Tax issues (apportionment). > > It’s still unconstitutional though - if you sign off on this power of the Commerce Clause, then in effect there’s nothing that Congress can’t do. That ship sailed with _Wickard_. (Although hit hit some rough waters with _Raich_.) ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [October 15, 2010, 5:14pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/7 "2010-10-15T17:14:41Z")
> [@Bricker](#): > > Federal courts in Florida and Virginia have issued rulings that keep alive the lawsuits challenging the constitutionality of the health care mandate. > > I still contend that the law is constitutional, but I no longer regard the contrary position as frivolous. Even if they do find certain aspects of the law unconstitutional, wouldn’t the odds be very slim that they could strike down all the key provisions of the bill? Whether the mandate is a tax or a penalty, wouldn’t the rules about pre-existing conditions and subsidies for those who can’t afford health insurance still remain in effect? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 15, 2010, 5:22pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/8 "2010-10-15T17:22:17Z")
> [@Blalron](#): > > > [@Bricker](#): > > > > Federal courts in Florida and Virginia have issued rulings that keep alive the lawsuits challenging the constitutionality of the health care mandate. > > > > I still contend that the law is constitutional, but I no longer regard the contrary position as frivolous. > > Even if they do find certain aspects of the law unconstitutional, wouldn’t the odds be very slim that they could strike down all the key provisions of the bill? Whether the mandate is a tax or a penalty, wouldn’t the rules about pre-existing conditions and subsidies for those who can’t afford health insurance still remain in effect? Yes, but it would be a disaster and Congress would have to fix it. Too many people would wait until they were sick to buy “insurance”. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 15, 2010, 5:41pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/9 "2010-10-15T17:41:43Z")
> [@Blalron](#): > > > [@Bricker](#): > > > > Federal courts in Florida and Virginia have issued rulings that keep alive the lawsuits challenging the constitutionality of the health care mandate. > > > > I still contend that the law is constitutional, but I no longer regard the contrary position as frivolous. > > Even if they do find certain aspects of the law unconstitutional, wouldn’t the odds be very slim that they could strike down all the key provisions of the bill? Whether the mandate is a tax or a penalty, wouldn’t the rules about pre-existing conditions and subsidies for those who can’t afford health insurance still remain in effect? There is no severability clause in the bill so, I think, if one part is ruled unconstitutional then the whole thing goes down. Someone correct me if I am wrong. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 15, 2010, 5:44pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/10 "2010-10-15T17:44:56Z")
> [@Bricker](#): > > > [@Mr\_Smashy](#): > > > > If it was a tax then it violates the Direct Tax issues (apportionment). > > > > It’s still unconstitutional though - if you sign off on this power of the Commerce Clause, then in effect there’s nothing that Congress can’t do. > > That ship sailed with _Wickard_. (Although hit hit some rough waters with _Raich_.) As bad as the Wickard decision was it did not touch on inactivity. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 15, 2010, 6:48pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/11 "2010-10-15T18:48:16Z")
I’m wondering if there is a degree of CYA politics on behalf of the courts here. Dismissing this at this stage would have lead to cries the courts were Obama stooges. Dismissing it later will, but to a lesser extent. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [October 15, 2010, 7:17pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/12 "2010-10-15T19:17:31Z")
> [@yorick73](#): > > As bad as the Wickard decision was it did not touch on inactivity. Here’s an example of inactivity: A business that declines to serve a black person due to their race. Any legal penalties they face from that is from what they **don’t** do. ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [October 15, 2010, 7:32pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/13 "2010-10-15T19:32:58Z")
> [@Blalron](#): > > > [@yorick73](#): > > > > As bad as the Wickard decision was it did not touch on inactivity. > > Here’s an example of inactivity: A business that declines to serve a black person due to their race. Any legal penalties they face from that is from what they **don’t** do. I think that’s a poor analogy. here’s a better one: Obama and the Democratic caucus decide that the economy is in the shitter, and one thing that would cheer it up would be if they passed a law requiring that every American buy a car. Any car (subject to some minimum restrictions, much like the healthcare bill). Would that be constitutional? Is that within the power of congress to mandate? Cars are rarely sold in the state they are produced, so it’s clearly interstate commerce. Can the constitution, which says Congress can _regulate_ commerce, also grant the power to allow Congress to **force** commerce on an otherwise non-car-buying citizen? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 15, 2010, 7:33pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/14 "2010-10-15T19:33:32Z")
> [@Blalron](#): > > > [@yorick73](#): > > > > As bad as the Wickard decision was it did not touch on inactivity. > > Here’s an example of inactivity: A business that declines to serve a black person due to their race. Any legal penalties they face from that is from what they **don’t** do. Boy, that’s quite a stretch. You are getting into civil rights issues there…not economic inactivity. A better example would be a business that is going out of business but is forced to remain open by the government. ---
**Author:** ![Oregon\_sunshine](https://avatars.discourse-cdn.com/v4/letter/o/50afbb/32.png) [@Oregon\_sunshine](https://boards.straightdope.com/u/Oregon_sunshine)\ **Post date:** [October 15, 2010, 7:43pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/15 "2010-10-15T19:43:16Z")
> [@](#): > > a law requiring that every American buy a car. Any car Sooo… Where were you (if you believe this sort of thing is unconstitutional, that is) when they passed the laws requiring all drivers to buy car insurance? Why wasn’t there a huge stink and people declaring THAT law unconstitutional? Why isn’t there a concurrent huge stink _right now_ about being forced to buy car insurance?? :dubious: I’d _love_ to hear an explanation of that! ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 15, 2010, 7:46pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/16 "2010-10-15T19:46:49Z")
> [@Oregon\_sunshine](#): > > > [@](#): > > > > a law requiring that every American buy a car. Any car > > Sooo… Where were you (if you believe this sort of thing is unconstitutional, that is) when they passed the laws requiring all drivers to buy car insurance? Why wasn’t there a huge stink and people declaring THAT law unconstitutional? Why isn’t there a concurrent huge stink _right now_ about being forced to buy car insurance?? :dubious: I’d _love_ to hear an explanation of that! Could you point us in the direction of that federal law that requires auto insurance? I can’t seem to put my finger on it at the moment. ---
**Author:** ![jonesj2205](https://avatars.discourse-cdn.com/v4/letter/j/ecc23a/32.png) [@jonesj2205](https://boards.straightdope.com/u/jonesj2205)\ **Post date:** [October 15, 2010, 7:48pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/17 "2010-10-15T19:48:14Z")
> [@Oregon sunshine73](#): > > Sooo… Where were you (if you believe this sort of thing is unconstitutional, that is) when they passed the laws requiring all drivers to buy car insurance? Why wasn’t there a huge stink and people declaring THAT law unconstitutional? Why isn’t there a concurrent huge stink _right now_ about being forced to buy car insurance?? :dubious: I’d _love_ to hear an explanation of that! Because driving isn’t a right. One of the requirements for the privilege of driving a car on the public streets is that it be insured. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [October 15, 2010, 7:48pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/18 "2010-10-15T19:48:36Z")
Also the government is requiring everyone to buy a house! Since they allow people to write off their interest on the mortgage. So the government is penalizing everyone who didn’t buy a house with higher taxes!!!1 Tyranny!!11one :rolleyes: ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [October 15, 2010, 7:48pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/19 "2010-10-15T19:48:58Z")
> [@Bricker](#): > > > [@Mr\_Smashy](#): > > > > If it was a tax then it violates the Direct Tax issues (apportionment). > > > > It’s still unconstitutional though - if you sign off on this power of the Commerce Clause, then in effect there’s nothing that Congress can’t do. > > That ship sailed with _Wickard_. (Although hit hit some rough waters with _Raich_.) I’ve seen you pushing that for awhile here. And while I respect your opinion, in my opinion, it’s apples and oranges. For those who don’t follow these things, [Wickard](http://en.wikipedia.org/wiki/Wickard_v._Filburn) was about a WWII crop farmer who wanted to exceed grain quotas, purely for home use. The court surmised that a law limiting what he could grow was constitutional under the Commerce Clause because any excess wheat that was grown _could_ have entered the interstate marketplace eventually, and/or it could limit would he’d otherwise have to buy. Vis a vis the healthcare bill, for the analogy to hold, you would have to believe that there is no difference between a quota limiting production (implemented at the time to drive up prices during the depression), and forcing the person to grow crops in the first place instead of letting his land go fallow. After all, he must have used fertilizer, seeds, etc to grow his own crops. Surely some of these goods had an impact on interstate commerce (even if it was just out-of-state gasoline used to fuel the trucks that delivered the goods in-state to Farmer Brown). As for [Raich](http://en.wikipedia.org/wiki/Gonzales_v._Raich), that was about growing illegal drugs, so I’m not sure that decision makes sense in this context. This is a bridge too far. To accept this means that we’ve turned the Constitution on its head, basically a wholesale repudiation of the 10th Amendment. Let’s hope the Justices find as such when it gets to them. ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [October 15, 2010, 7:51pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/20 "2010-10-15T19:51:35Z")
> [@Oregon\_sunshine](#): > > > [@](#): > > > > a law requiring that every American buy a car. Any car > > Sooo… Where were you (if you believe this sort of thing is unconstitutional, that is) when they passed the laws requiring all drivers to buy car insurance? Why wasn’t there a huge stink and people declaring THAT law unconstitutional? Why isn’t there a concurrent huge stink _right now_ about being forced to buy car insurance?? :dubious: I’d _love_ to hear an explanation of that! Um… isn’t that a state requirement? [Next page](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244.md?page=2)