# 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:** 2
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [October 15, 2010, 7:58pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/21 "2010-10-15T19:58:52Z")
> [@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_.) And such ships never, ever return to port? I’m aware of stare decisis, but doesn’t the SC also have the ability to overturn or curtail prior SC decisions? ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/22 "2010-10-15T20:19:14Z")
> [@jonesj2205](#): > > 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. A person can opt out of auto insurance by choosing to go without a car. It is impossible for a person to “opt out” of having a human body. If your body breaks down, emergency rooms are **required** to treat you even if you can’t pay for it. ---
**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, 8:21pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/23 "2010-10-15T20:21:18Z")
> [@Lobohan](#): > > 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: You have it backwards. The government lets you deduct mortgage interest from your current taxes paid…as opposed to raising taxes but letting us write off the mortgage interest. This would be a good comparison if everyone who purchased health insurance could write it off of their current taxes. Of course, if this is the case then there is no penalty for NOT purchasing insurance. I suspect you know this already. ---
**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, 8:25pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/24 "2010-10-15T20:25:06Z")
> [@Blalron](#): > > > [@jonesj2205](#): > > > > 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. > > A person can opt out of auto insurance by choosing to go without a car. It is impossible for a person to “opt out” of having a human body. If your body breaks down, emergency rooms are **required** to treat you even if you can’t pay for it. I think you are pulling the cart before the horse on that one. Just because the government mandates that ERs MUST help anyone regardless of their ability to pay does not give them the right to force people to insure themselves retroactively. ---
**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, 8:29pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/25 "2010-10-15T20:29:39Z")
> [@yorick73](#): > > > [@Lobohan](#): > > > > 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: > > You have it backwards. The government lets you deduct mortgage interest from your current taxes paid…as opposed to raising taxes but letting us write off the mortgage interest. This would be a good comparison if everyone who purchased health insurance could write it off of their current taxes. Of course, if this is the case then there is no penalty for NOT purchasing insurance. I suspect you know this already. Think of it this way. Congress raised taxes on everyone in the country. Those that purchase insurance get a tax credit. I think you’re the one seeing this backwards, since everyone who doesn’t buy a house doesn’t have the interest write-off. It’s semantic legerdemain designed to not look like a tax. And for most people it won’t be, because most people will have health care coverage. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 15, 2010, 8:34pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/26 "2010-10-15T20:34:48Z")
So what is the argument that it is unconstitutional? Exceeds authority under the commerce clause? I think that would be a tough sell. The only other argument is that the government cannot “force” people to buy a product. While I may agree with that, I can’t see the clause in the Constitution that would prohibit it. What is the summary argument that this law is unconstitutional? ---
**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, 8:47pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/27 "2010-10-15T20:47:29Z")
> [@jtgain](#): > > So what is the argument that it is unconstitutional? Exceeds authority under the commerce clause? I think that would be a tough sell. > > The only other argument is that the government cannot “force” people to buy a product. While I may agree with that, I can’t see the clause in the Constitution that would prohibit it. What is the summary argument that this law is unconstitutional? It works the other way around. Congress doesn’t get to do anything it wants as long as the Constitution doesn’t forbid it. Congress can only act on authority give to it by the Constitution. ---
**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, 8:49pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/28 "2010-10-15T20:49:24Z")
> [@Lobohan](#): > > > [@yorick73](#): > > > > You have it backwards. The government lets you deduct mortgage interest from your current taxes paid…as opposed to raising taxes but letting us write off the mortgage interest. This would be a good comparison if everyone who purchased health insurance could write it off of their current taxes. Of course, if this is the case then there is no penalty for NOT purchasing insurance. I suspect you know this already. > > Think of it this way. Congress raised taxes on everyone in the country. Those that purchase insurance get a tax credit. > > I think you’re the one seeing this backwards, since everyone who doesn’t buy a house doesn’t have the interest write-off. It’s semantic legerdemain designed to not look like a tax. And for most people it won’t be, because most people will have health care coverage. Well, if it is a tax increase on everyone then this is the way government should have advertised it. You can spin this any way you like but, in the end, those who do not have coverage will have to pay a fixed amount EXTRA to the government. THAT is a penalty. Just because everyone doesn’t have a mortgage does NOT equal a tax increase on those who do not. Everyone who did not have a house the day before the mortgage deduction took effect paid the same taxes the day after it took effect. Contrast that with raising everyone’s taxes and then negating the tax increase for those that bought a house. One is incentivizing an activity while the other is punishing an inactivity. See the difference? ---
**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, 9:02pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/29 "2010-10-15T21:02:12Z")
> [@yorick73](#): > > > [@Lobohan](#): > > > > Think of it this way. Congress raised taxes on everyone in the country. Those that purchase insurance get a tax credit. > > > > I think you’re the one seeing this backwards, since everyone who doesn’t buy a house doesn’t have the interest write-off. It’s semantic legerdemain designed to not look like a tax. And for most people it won’t be, because most people will have health care coverage. > > Well, if it is a tax increase on everyone then this is the way government should have advertised it. You can spin this any way you like but, in the end, those who do not have coverage will have to pay a fixed amount EXTRA to the government. THAT is a penalty. > > Just because everyone doesn’t have a mortgage does NOT equal a tax increase on those who do not. Everyone who did not have a house the day before the mortgage deduction took effect paid the same taxes the day after it took effect. Contrast that with raising everyone’s taxes and then negating the tax increase for those that bought a house. One is incentivizing an activity while the other is punishing an inactivity. See the difference? No, there isn’t a difference. Every increase in taxes is an extra amount. You are getting bogged down in semantics because you want to justify your dislike of the policy. Also, one can emphasize words with \*italics \*. YOU don’t NEED to CAPITALIZE words. 😃 ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [October 15, 2010, 9:07pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/30 "2010-10-15T21:07:08Z")
> [@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! I only need insurance to drive on government roads. I don’t carry insurance on my ranch truck that never leaves the property. ---
**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, 9:42pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/31 "2010-10-15T21:42:49Z")
> [@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! States have plenary police power. The federal government has enumerated powers. The insurance requirement is a state one. ---
**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, 9:45pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/32 "2010-10-15T21:45:11Z")
> [@Mr\_Smashy](#): > > 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. Um… the question was whether Congress can make the drugs illegal, even if they never enter interstate commerce. ---
**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, 9:45pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/33 "2010-10-15T21:45:52Z")
> [@yorick73](#): > > 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. My search online about this issue only showed a whole bunch of conservative blogs salivating over the lack of severability in “Obamacare.” I couldn’t find any analysis from a credible legal authority on whether a single unconstitutional feature could get the entire law tossed aside. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [October 15, 2010, 9:52pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/34 "2010-10-15T21:52:10Z")
> [@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. :rolleyes: It still can’t establish a state church, or extend present Congressmen’s terms indefinitely. The Constitution isn’t supposed to anticipate every law that someone might need to pass & give explicit permission for it. It’s a basic operating system. Honestly, putting “rights reserved to the people” in the text was probably a mistake, because now most Yanks think the Constitution is some kind of moral law instead of an organizing framework for an effective government. But in any case, the Bill of Rights doesn’t say, “Congress can only do X, Y, & Z.” It says, “Congress can’t do A, B, & C.” See the difference? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 15, 2010, 9:57pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/35 "2010-10-15T21:57:40Z")
> [@John\_Mace](#): > > > [@jtgain](#): > > > > So what is the argument that it is unconstitutional? Exceeds authority under the commerce clause? I think that would be a tough sell. > > > > The only other argument is that the government cannot “force” people to buy a product. While I may agree with that, I can’t see the clause in the Constitution that would prohibit it. What is the summary argument that this law is unconstitutional? > > It works the other way around. Congress doesn’t get to do anything it wants as long as the Constitution doesn’t forbid it. Congress can only act on authority give to it by the Constitution. Very true. My mistake. But assuming that the Commerce Clause would authorize a health care law (which, unless Wickard and Raich are overturned, I don’t see why not) then why is a provision that forces a person to buy something such an unthinkable thing as to make it violate the Constitution? Or is the whole she-bang a Commerce Clause argument? ---
**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, 10:30pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/36 "2010-10-15T22:30:13Z")
> [@Lobohan](#): > > No, there isn’t a difference. Every increase in taxes is an extra amount. You are getting bogged down in semantics because you want to justify your dislike of the policy. > > Also, one can emphasize words with \*italics \*. YOU don’t NEED to CAPITALIZE words. 😃 There is clearly a difference. You are trying to conflate the two in order to justify a penalty as a tax increase on everyone…except those that buy this product. Can’t you see how YOU (or, if you prefer _you_) are twisting words to justify your agreement with the policy? Let’s see…if I raise taxes on one - and only one - person can I then claim that I cut taxes for everyone else? By your definition I can. Surely you can see how absurd that sounds. ---
**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, 10:34pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/37 "2010-10-15T22:34:14Z")
> [@foolsguinea](#): > > > [@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. > > :rolleyes: It still can’t establish a state church, or extend present Congressmen’s terms indefinitely. > > The Constitution isn’t supposed to anticipate every law that someone might need to pass & give explicit permission for it. It’s a basic operating system. > > Honestly, putting “rights reserved to the people” in the text was probably a mistake, because now most Yanks think the Constitution is some kind of moral law instead of an organizing framework for an effective government. But in any case, the Bill of Rights doesn’t say, “Congress can only do X, Y, & Z.” It says, “Congress can’t do A, B, & C.” See the difference? The Constitution clearly says what congress can do. The bill of rights was not intended to be an all-encompassing list of what the government cannot do. The bill of rights was meant to emphasize some of the most important no-no’s. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 15, 2010, 10:51pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/38 "2010-10-15T22:51:23Z")
Re: severability. If the statute does not provide for what to do if part of it is severed, there is federal common law that helps the courts determine what happens to a federal statute, and state common law for state statutes. Generally speaking, the court is asked to determine what the relevant legislature would have wanted. In this case, there are reasonable arguments on both sides. On the one hand, the individual mandate is pretty much the lynchpin the regulations regarding preexisting conditions. On the other hand, Obama didn’t think it was that essential in the campaign, and many or most of the other provisions still make sense without it. Most likely, if the individual mandate were struck down, most of the rest of the bill would remain. ---
**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, 11:46pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/39 "2010-10-15T23:46:54Z")
> [@yorick73](#): > > 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. I hate to break it to you, but Civil Rights legislation often relied on the Commerce Clause. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 15, 2010, 11:54pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/40 "2010-10-15T23:54:04Z")
Indeed. And from the Michigan case rejecting the challenge: > [@](#): > > The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ home-grown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); **Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal).** Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate. Think what you want of that reasoning, but clearly the connection to the justification for civil rights laws will be an important one as these cases climb the appellate ladder. [Previous page](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244.md?page=1) [Next page](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244.md?page=3)