They might, but if they do, it will be because they are reversing Wickard, not distinguishing it. I don’t say I would weep in the face of that outcome, but it’s unstable to upset sixty years of caselaw. Wrong-headed though I believe Wickard to be, it’s the alw of the land and much has been built upon its assumptions. The Court should not tear it down now.
If by “Constitutional” you mean “whatever SC decides” then yes, it is Constitutional. If by “Constitutional” you mean “according to the Constitution”, no, it would not be Constitutional.
The Court should not tear down wrong-headed law?
So whatever you believe to be Constitutional, that’s what’s REALLY Constitutional, not the decisions by people who are actually, you know, empowered by the Constitution to decide these things. You know better. Just because. Right?
If you call a tail a leg, how many legs has a dog?
Is it an inevitable conclusion that every person in the US is 99% likely to use or own a car?
Judge Sutton, in his concurrence/opinion of the court, was impressed by the action/inaction argument, saying: “Of all the arguments auditioning to invalidate the individual mandate, this is the most compelling.” Interestingly enough, he relies in great deal on things that people like Bricker tend to praise in other contexts (or, more precisely, other issues with political implications), textualism and judicial deference to the legislature. He says:
“The third point is the critical one: Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation.”
and
There is another linguistic problem with the action/inaction line. The power to regulate includes the power to prescribe and proscribe. Legislative prescriptions set forth rules of conduct, some of which require action. See, e.g., 18 U.S.C. § 2250 (sex-offender registration); id. § 228 (childsupport payments); see also United States v. Faasse, 265 F.3d 475, 486–87 (6th Cir. 2001) (en banc). The same is true for legislative proscriptions. Take the drug laws at issue in Raich, where Congress regulated by prohibiting individuals from possessing certain drugs. A drug-possession law amounts to forced inaction in some settings (those who do not have drugs must not get them), and forced action in other settings (those who have drugs must get rid of them).
and, most telling
“No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”
I think this is the key. By and large, it is impossible to avoid getting health care at some point in your life, while you can easily go without ever purchasing a car, broccolli, or any of the other slippery slope ideas people throw out there. With health care being all but a mandatory expense, the method one chooses to pay for that health care (employer insurance, self insurance, pay by cash, or mooch off of others) is an action. I also agree with Sutton that the action/inaction distinction is not as cut and dried or of use in legal cases, as some would wish us to believe.
Regarding the “where does it end? Forced buying of a car?” argument, Sutton begins by expressing sympathy, saying: " That brings me to the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want." The simple answer was: “In most respects, a mandate to purchase health insurance does not parallel these other settings or markets.”
I don’t have enough time to get into this deeper right now. Sorry.
I think the individual mandate is problematic in a policy sense, because it subsidizes insurance companies.
But in practice, what we have is a small tax increase that can be avoided by those who carry health insurance. Bad policy, absent a public option, I agree. But unconstitutional? Nah.
“Just the tip, baby. Just the tip.”
You’re doing it wrong.
That’s not an insignificant difference. The government has the authority to collect taxes. It does not have the authority to say you must—simply by virtue of being alive—buy a product. So if they want to do this as a tax, fine. Otherwise, there is not support in the Constitution for it.
Correct me if I’m wrong, but if someone doesn’t buy insurance, they have to pay an additional tax instead. They have the choice to subject themselves to a tax if they insist on not getting insurance.
They have to pay a penalty. A penalty that is imposed for not buying a product. So, the government is forcing you—mandating you—buy a product. Something that has never been done before and has no Constitutional support.
A tax. Governed by the IRS. A punitive tax to be sure, but a tax. I’m really not all that interested in semantic games, though.
You don’t have to buy a “product”. You are well within your powers to decide that you won’t buy a “product”. By all means, feel free to not buy that “product”. But realize that if you make that decision, you will be taxed for it. Just like dozens of other decisions you make.
If I don’t have kids, I have to pay higher taxes, because I don’t get to claim the dependent deduction. So they force me to pay a penalty, just for choosing not to have a kid. Show me where that’s permitted in the U.S. Constitution!
(Sheesh. Or, since this is the Pit…fuuuuck!)
Vague terms like “general welfare” are open to interpretation, so you don’t have a leg or a tail to stand on
Then don’t play them. It is, as you admit, punitive, therefore it is a penalty. Do you not have access to a dictionary? There are no “punitive taxes”. There are taxes that people must pay, and there are penalties incurred when those taxes are not paid in a timely manner. Anyone who tries to categorize this as a tax is either a liar or an idiot. Or both.
Glad we were able to straighten that out.
By that logic I’m also well within my rights to not pay my income tax of property tax. Or to steal from a store, or to rape, or murder. The government is mandating—forcing—you must by a product or it will use it’s power to penalize you. For fuck’s sake, even Obama called it a “MANDATE”. :rolleyes:
Oh, really? Name three.
You pay more in taxes if you don’t have a mortgage on a home. You pay more in taxes if you don’t have children. You pay more in taxes if you don’t give money to charity.
And now, you pay more in taxes if you don’t buy insurance.
Nope. Tax rebates and the like are not the same things at all. Here, the government is mandating that you take an action and buy a product or you will be penalized. This mandate is not tied to the tax code. If it were, it would be…wait for it…A TAX! A tax that we would all have to pay. Or pay IF we took a certain action, like buying a car.
Obama was free to craft healthcare reform that was paid for though taxes. He chose to NOT do that. That would have been fine, but it’s NOT what he did.
The government mandates that a person without a mortgage pays more than a person with one.
You’re not real good at thinking, are you?
WOW—you really are an idiot. We are talking about the government mandating that someone buy a product or get penalized. Rephrasing government laws and tax codes to include the word “mandate” is childishness at best.