# 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:** 5
**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 18, 2010, 4:50pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/81 "2010-10-18T16:50:19Z")
Sorry, Tom. > [@Bricker](#): > > You seriously believe that the Constitution is construed as, “If it’s not prohibited to the federal government, then it’s permitted?” That’s what “not prohibited” _means._ > [@](#): > > And utterly wrong, as proved by US v. Morrison, US v. Lopez, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, etc. And all of those were permitted _until_ they were prohibited by common law. There is no prohibition until there is a prohibition. ---
**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 18, 2010, 4:58pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/82 "2010-10-18T16:58:12Z")
> [@yorick73](#): > > Are you saying Congress CAN make everyone purchase a car but won’t because there is no need? Think about what you are asking. Yes, that is exactly what we are saying. I am, at least. Your only constitutional protections against stupid laws not expressly prohibited are as follows: 1. The legislature, being comprised of reasonable, intelligent human beings, will be unlikely to pass a law that makes no sense. 2. The President can veto a law that somehow passes anyway. 3. The DoJ can decline to enforce a law that is clearly insensible &/or unworkable. 4. Jurists can nullify truly offensive laws as a matter of policy. That’s supposed to be enough. It would be far, far less workable to do what you seem to expect: to place on the process of constitutional amendment an onus to anticipate every possible category of good law & expressly permit good laws by category. So instead we expressly prohibit a few things & rely on the good sense of the government not to pass any other really stupid ideas. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [October 18, 2010, 5:11pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/83 "2010-10-18T17:11:01Z")
> [@foolsguinea](#): > > That’s what “not prohibited” \*means.\*And all of those were permitted _until_ they were prohibited by common law. > > There is no prohibition until there is a prohibition. That’s not how SCOTUS and constitutional interpretation works. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 18, 2010, 5:23pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/84 "2010-10-18T17:23:06Z")
> [@foolsguinea](#): > > Sorry, Tom.That’s what “not prohibited” \*means.\*And all of those were permitted _until_ they were prohibited by common law. > > There is no prohibition until there is a prohibition. Ahhhh, I see. By the same token, I am permitted to rob the Bank of America branch at 11th & H Street until such time as I am arrested and convicted for the offense, at which time we can definitively state that the law prohibited me from doing so. While this is true, in a sense, I don’t regard it as a particularly useful method of looking at the issue of what the federal government is constitutionally permitted to do. But you are absolutely correct: Congress can pass any law it pleases, regardless of what the Constitution says, and that law is presumptively valid until a court says it’s not. And I can rob any bank I please, until a court says I’m guilty of bank robbery. ---
**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 18, 2010, 5:24pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/85 "2010-10-18T17:24:24Z")
> [@villa](#): > > Yeah - I think _Lopez_ was a cautionary decision. The Court was basically saying that the Commerce Clause isn’t infinitely elastic. They don’t want to set strict guidelines on it, because there is an acceptance that sometimes the government is going to have to act in certain areas, but no longer can there simply be a handwaving to commerce effects. Instead, the case for the effect on commerce needs to be clearly set out - and it was here. Yes and no. Yes, my point was that Lopez said that you can’t use the CC, infinitely morphed, to justify laws. Look at Renquist’s use of the words ‘slippery slope’ for God’s sake. That’s the way the court was leaning then, and the way they’ll find this time I think. But the issue here isn’t whether buying insurance is commerce-related; it’s whether regulating the decision to buy or not to buy is the same as regulating after people have decided to buy. A massive difference, and one this case will hang on. If Congress can regulate commerce that people either a) choose to engage in, or b) choose NOT to engage in, under the authority of the CC, then what limits are left? Answer: it makes a mockery of the Constitution, and specifically the 10th amendment. ---
**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 18, 2010, 5:26pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/86 "2010-10-18T17:26:49Z")
> [@foolsguinea](#): > > Yes, that is exactly what we are saying. I am, at least. Your only constitutional protections against stupid laws not expressly prohibited are as follows: > > 1. The legislature, being comprised of reasonable, intelligent human beings, will be unlikely to pass a law that makes no sense. > 2. The President can veto a law that somehow passes anyway. > 3. The DoJ can decline to enforce a law that is clearly insensible &/or unworkable. > 4. Jurists can nullify truly offensive laws as a matter of policy. > > That’s supposed to be enough. > > It would be far, far less workable to do what you seem to expect: to place on the process of constitutional amendment an onus to anticipate every possible category of good law & expressly permit good laws by category. So instead we expressly prohibit a few things & rely on the good sense of the government not to pass any other really stupid ideas. I’m not sure what planet you’re from, but none of those so-called protections are \*constitutional \*(your language). ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 18, 2010, 6:31pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/87 "2010-10-18T18:31:13Z")
> [@foolsguinea](#): > > Yes, that is exactly what we are saying. I am, at least. Your only constitutional protections against stupid laws not expressly prohibited are as follows: > > 1. The legislature, being comprised of reasonable, intelligent human beings, will be unlikely to pass a law that makes no sense. > 2. The President can veto a law that somehow passes anyway. > 3. The DoJ can decline to enforce a law that is clearly insensible &/or unworkable. > 4. Jurists can nullify truly offensive laws as a matter of policy. > > That’s supposed to be enough. > > It would be far, far less workable to do what you seem to expect: to place on the process of constitutional amendment an onus to anticipate every possible category of good law & expressly permit good laws by category. So instead we expressly prohibit a few things & rely on the good sense of the government not to pass any other really stupid ideas. You seem to completely ignore the Constitution and then state that “if it ain’t prohibited by the bill of rights or subsequent amendments then it’s fair game.” This shows a complete lack of understanding about how our federal goverment operates. Also, this conversation has nothing to do with what you or I consider “good” laws or “bad” laws. But, I think it shines a light on your thought process. Like most on the left you believe the ends justify the means. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 18, 2010, 6:43pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/88 "2010-10-18T18:43:13Z")
> [@yorick73](#): > > You seem to completely ignore the Constitution and then state that “if it ain’t prohibited by the bill of rights or subsequent amendments then it’s fair game.” This shows a complete lack of understanding about how our federal goverment operates. > > Also, this conversation has nothing to do with what you or I consider “good” laws or “bad” laws. But, I think it shines a light on your thought process. Like most on the left you believe the ends justify the means. I agree (obviously) that **foolsguinea** is a bit confused about what “limited, enumerated powers” means. But I have also said that I felt the mandate was constitutional, and can be accomplished in a variety of clearly constitutional ways. For example, Congress could say, “Any person who crosses interstate lines must purchase health insurance,” couldn’t they? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 18, 2010, 7:53pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/89 "2010-10-18T19:53:36Z")
> [@Mr\_Smashy](#): > > Of course they could do this. By your logic, they do this all the time - the home interest mortage deduction is actually subsidizing homeowners at the expense of renters, if you want to think of it that way. > > But your plan would require raising taxes. I see little courage in the Democratic party to do that, given that they’re already being (very successfully) tarred with the tax and spend liberal label in the mind of the American public. This is true, but irrelevant. I thought we were discussing a hypothetical to determine what the constitutionality of the measure would be, not what its feasibility or wisdom would be. If we’re on feasibility or wisdom, then I agree with you. How does the health care law differ relevantly from saying, “We just raised your taxes by $250, and given you a tax break for $250 if you have insurance”? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 18, 2010, 8:23pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/90 "2010-10-18T20:23:45Z")
> [@Bricker](#): > > I agree (obviously) that **foolsguinea** is a bit confused about what “limited, enumerated powers” means. > > But I have also said that I felt the mandate was constitutional, and can be accomplished in a variety of clearly constitutional ways. For example, Congress could say, “Any person who crosses interstate lines must purchase health insurance,” couldn’t they? How exactly does an individual crossing state lines give the feds permission to make them purchase something? I can see the feds arguing that they have authority over a company that does business in multiple states (i.e. insurance companies MUST cover anyone who applies for a policy) but an individual not involved in any interstate commerce in health care? Can the government REALLY claim that, since I pay my doctor x amount of money for a visit I am affecting the cost of healthcare nationwide? Must the individual get caught up in this just because his/her physician uses an MRI machine that is made in another state? ---
**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 18, 2010, 8:32pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/91 "2010-10-18T20:32:53Z")
> [@Left\_Hand\_of\_Dorkness](#): > > This is true, but irrelevant. I thought we were discussing a hypothetical to determine what the constitutionality of the measure would be, not what its feasibility or wisdom would be. If we’re on feasibility or wisdom, then I agree with you. > > How does the health care law differ relevantly from saying, “We just raised your taxes by $250, and given you a tax break for $250 if you have insurance”? Because they _ **didn’t** _ do that. They could have, but they didn’t. I suspect it’s because they pussied out, didn’t want to be called tax-raisers, etc. (Then there’s also the matter of the Direct Tax not being constitutional if it isn’t copacetic w/apportionment, and Obamacare aint… so let’s not call it a tax, shall we… 🆒 ) Yes they could have passed some version of Obamacare in a constitutional manner. They didn’t. ---
**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 18, 2010, 8:35pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/92 "2010-10-18T20:35:36Z")
> [@yorick73](#): > > How exactly does an individual crossing state lines give the feds permission to make them purchase something? I can see the feds arguing that they have authority over a company that does business in multiple states (i.e. insurance companies MUST cover anyone who applies for a policy) but an individual not involved in any interstate commerce in health care? Can the government REALLY claim that, since I pay my doctor x amount of money for a visit I am affecting the cost of healthcare nationwide? Must the individual get caught up in this just because his/her physician uses an MRI machine that is made in another state? But… but wait… you used gasoline from Texas and drove a car from Detroit and those are different states so Congress should be able to regulate, under the commerce clause, any commerce you do… in fact, they should be able to FORCE you into commerce that you otherwise didn’t want to engage in! And that’s the slippery slope referred to in Lopez. A slope that will make Obamacare go down like Madonna on her honeymoon. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 18, 2010, 10:21pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/93 "2010-10-18T22:21:38Z")
> [@Mr\_Smashy](#): > > But… but wait… you used gasoline from Texas and drove a car from Detroit and those are different states so Congress should be able to regulate, under the commerce clause, any commerce you do… in fact, they should be able to FORCE you into commerce that you otherwise didn’t want to engage in! > > And that’s the slippery slope referred to in Lopez. A slope that will make Obamacare go down like Madonna on her honeymoon. I really hope **Bricker** was trying to make a more sensible argument but I just can’t imagine that the commerce clause would be this broad. BTW, I love the Madonna reference. Mind if I pass it off as my own? 🙂 ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 18, 2010, 11:36pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/94 "2010-10-18T23:36:14Z")
> [@Mr\_Smashy](#): > > Because they _ **didn’t** _ do that. They could have, but they didn’t. I suspect it’s because they pussied out, didn’t want to be called tax-raisers, etc. (Then there’s also the matter of the Direct Tax not being constitutional if it isn’t copacetic w/apportionment, and Obamacare aint… so let’s not call it a tax, shall we… 🆒 ) > > Yes they could have passed some version of Obamacare in a constitutional manner. They didn’t. My question wasn’t rhetorical, it was legitimate: what was the relevant difference? Saying “they didn’t do that” isn’t helpful; elaboration would be. What DID they do that was relevantly different? ---
**Author:** ![jasg](https://avatars.discourse-cdn.com/v4/letter/j/f0a364/32.png) [@jasg](https://boards.straightdope.com/u/jasg)\ **Post date:** [October 19, 2010, 2:43am UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/95 "2010-10-19T02:43:42Z")
> [@Mr\_Smashy](#): > > is it constitutional to Congress to require everyone to buy a car, on the theory that it’s good for the economy? If not, why not? I’m not very good at debate, but I am tired of this type of argument. Let’s flip it on its head. Would you agree to a system of buying a car that allows the dealer to refuse to sell you one if you have not taken good care of your previous car? Say you forgot to rotate the tires or change the oil. Oh, yeah - as you get older, we will charge you more for the car. Better yet, lets imagine that they can take the car back if you had too many accidents, it starts to rust or you got too fat for the seat in the car. Sorry, you can’t have a car - take a taxi, the bus or walk. That is pretty much what we have for a health care insurance system today. Best cars in the world, but expensive and not everyone is allowed to buy one. Is that good for the economy? ---
**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 19, 2010, 3:56pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/96 "2010-10-19T15:56:31Z")
> [@jasg](#): > > I’m not very good at debate, but I am tired of this type of argument. > > Let’s flip it on its head. > > Would you agree to a system of buying a car that allows the dealer to refuse to sell you one if you have not taken good care of your previous car? > > Say you forgot to rotate the tires or change the oil. Oh, yeah - as you get older, we will charge you more for the car. Better yet, lets imagine that they can take the car back if you had too many accidents, it starts to rust or you got too fat for the seat in the car. > > Sorry, you can’t have a car - take a taxi, the bus or walk. > > That is pretty much what we have for a health care insurance system today. Best cars in the world, but expensive and not everyone is allowed to buy one. > > Is that good for the economy? Well, since you are asking… I would agree that the States would have the right to implement such a system of car franchise laws that would follow the rules you laid out, if they were insane enough to do it. I would agree that the Feds could probably constitutionally pass a similar scheme if they could make the case that it was regulating interstate commerce (which it probably is). I’m pretty sure the Federal Government currently has something to say about the interstate insurance business - I understand that most regulation is left up to the states, but for the big companies operating in more than one state, I would suggest that the CC is broad enough to allow for that regulation. I would not suggest that the Commerce Clause is broad enough to \*\*\*force \*\*\*you to purchase a car, to force you to engage in commerce that you otherwise wouldn’t engage in, under the bullshit argument that they are ‘regulating’ such commerce. ---
**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 19, 2010, 4:00pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/97 "2010-10-19T16:00:48Z")
> [@Left\_Hand\_of\_Dorkness](#): > > My question wasn’t rhetorical, it was legitimate: what was the relevant difference? Saying “they didn’t do that” isn’t helpful; elaboration would be. What DID they do that was relevantly different? What they did do was charge a penalty (not a tax, as that would be blatantly unconstitutional, as per my earlier post) for not buying insurance. What they didn’t do was pass a broad increase in the income tax (allowed under the 16th amendment) then use the tax code to allow for 100% tax credit or deductability for those who purchase it. Because… wait for it… that would then have (even further) painted them as tax-and-spend liberals. And there’s an election season coming. Do you really not understand this? ---
**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 19, 2010, 4:02pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/98 "2010-10-19T16:02:22Z")
> [@yorick73](#): > > I really hope **Bricker** was trying to make a more sensible argument but I just can’t imagine that the commerce clause would be this broad. > > BTW, I love the Madonna reference. Mind if I pass it off as my own? 🙂 He hasn’t yet. And permission granted. 🙂 ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [October 19, 2010, 4:20pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/99 "2010-10-19T16:20:59Z")
> [@Mr\_Smashy](#): > > He hasn’t yet. \*\*\*Paging **Bricker** …would you care to explain what you meant in that post? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2010, 4:54pm UTC](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244/100 "2010-10-19T16:54:12Z")
Look, I’m not in favor of this policy result, nor do I think it’s compelled by the Constitution; I think Wickard was wrongly decided. But under Wickard’s rule, even trivial impacts by a given individual are within Congress’ reach, because the trivial was not enough “… to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” As the Court further explained in Lopez: > [@](#): > > Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained. [Previous page](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244.md?page=4) [Next page](https://boards.straightdope.com/t/health-care-lawsuits-survive-dismissal-in-fl-va/557244.md?page=6)