# Justices signal possible trouble for health insurance mandate **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961 "2012-03-27T17:11:45Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 31, 2012, 8:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/182 "2012-03-31T20:43:07Z")
> [@magellan01](#): > > So, how do you feel about Nancy Pelosi’s claim that “we have to pass the bill to see what’s in it”? And about the congresspeople who admitted to not reading it? What I feel about it is that you should change the channel once in awhile. Or look at more than one “news” site. It has been carefully explained to you multiple times before. such as [here](http://boards.straightdope.com/sdmb/archive/index.php/t-559116.html). :rolleyes: Do please also note that this bill was in Congress for a year and a half, it was public the entire time, and anyone who thought they needed to read it but didn’t has no fucking excuse. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2012, 9:03pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/183 "2012-03-31T21:03:18Z")
SCOTUS doesn’t actually need to read the whole thing to rule on its constitutionality anyway. They just have to read the bits that are important to the issues framed by the appellants- the individual mandate language and the severability provisions. ---
**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:** [March 31, 2012, 9:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/184 "2012-03-31T21:37:02Z")
If the Constitution prohibited governments from forcing people to buy private goods, this case would be over, and in fact the law probably would not have passed. The anti-mandate side are hoping for a decision that the Constitution speaks from silence, and forbids all that is not explicitly permitted. To which I say, you most likely will not get your wish, and heaven help us all if you do. By the way, how many of the strict constructionists supported defaulting on the debt to Social Security? Show of hands! ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 31, 2012, 9:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/185 "2012-03-31T21:55:23Z")
> [@foolsguinea](#): > > If the Constitution prohibited governments from forcing people to buy private goods, this case would be over, and in fact the law probably would not have passed. > > The anti-mandate side are hoping for a decision that the Constitution speaks from silence, and forbids all that is not explicitly permitted. To which I say, you most likely will not get your wish, and heaven help us all if you do. > [@](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The tenth amendment. Seems pretty clear. The question hinges on the ICC, and whether that provides the authority to compel a mandate such as this. That text is not so clear. But surely no one would assert that the authority it grants is absolute? So, yes, I do (to some extent) see this as a “speaks from silence” issue in the sense that the Constitution does not grant this authority, and since it does not (per the tenth), the U.S. is SOL. The only way is swings the other way is if enough justices detect a penumbra lurking in the vicinity that whispers in his or her ear that the authority to regulate interstate commerce means that the U.S. can CREATE interstate commerce that doesn’t currently exist (thereby giving it something new to regulate), in the form of forcing people to purchase something they’re not otherwise inclined to. At that point, as George Will has previously described it, the ICC is elastic to the point of infinity. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 31, 2012, 10:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/186 "2012-03-31T22:00:25Z")
True or false: the Social Security Act is constitutional. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 31, 2012, 10:04pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/187 "2012-03-31T22:04:36Z")
I haven’t given it much thought. Is that controversial, and I missed it? Congress has the power to tax, and spend it on the general welfare, so it seems as if it’s constitutional. What’s the gotcha? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 31, 2012, 11:38pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/188 "2012-03-31T23:38:51Z")
> [@Really\_Not\_All\_That\_Bright](#): > > True or false: the Social Security Act is constitutional. The Supreme Court says yes. The switch in time that saved nine. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 1, 2012, 3:03am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/189 "2012-04-01T03:03:52Z")
> [@ElvisL1ves](#): > > What I feel about it is that you should change the channel once in awhile. Or look at more than one “news” site. It has been carefully explained to you multiple times before. such as [here](http://boards.straightdope.com/sdmb/archive/index.php/t-559116.html). :rolleyes: Do please also note that this bill was in Congress for a year and a half, it was public the entire time, and anyone who thought they needed to read it but didn’t has no fucking excuse. Check yourself, son. And when you cite something that you claim has been “explained to [me]”, you might want to choose a thread I actually participated in. If just to just make yourself look less foolish. But if you’d like to go on record defending Pelosi’s uber-dumbfuck statement, I’m not going to try to stop you. In fact, I doubt you could stop if you wanted to. No, when you respond to this post, will you have read it first, or will you have responded to it pin order to see what it said? Unbelievable. :rolleyes: ---
**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:** [April 1, 2012, 3:10am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/190 "2012-04-01T03:10:59Z")
> [@magellan01](#): > > Check yourself, son. And when you cite something that you claim has been “explained to [me]”, you might want to choose a thread I actually participated in. If just to just make yourself look less foolish. But if you’d like to go on record defending Pelosi’s uber-dumbfuck statement, I’m not going to try to stop you. In fact, I doubt you could stop if you wanted to. > > No, when you respond to this post, will you have read it first, or will you have responded to it pin order to see what it said? > > Unbelievable. :rolleyes: So you are shown that you are completely wrong, yet you still say this? ---
**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:** [April 1, 2012, 4:05am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/191 "2012-04-01T04:05:09Z")
Easy squeezy, then. We really should repeal the Tenth Amendment, and admit that the federal government is in fact a national government, with the ability to write laws as needed, as it has been doing all along, rather than a defined-function treaty organization or whatever the ratifiers of the Tenth Amendment thought it was going to be. Seriously, if the Tenth is sufficiently expansive to prohibit the mandate, _because it is not an enumerated power of Congress,_ the following must also follow: 1. The entirety of the First Amendment is redundant and covered by the Tenth. 2. NASA is unconstitutional, and must be abolished. 3. The Controlled Substances Act is unconstitutional, and must be voided. Would you claim these things? If not, then really you’re just grasping at a spurious argument to claim that somehow the constitution protects you from bad policy. It does not. Either the mandate is a useful policy for the public welfare, in a consequentialist sense, or it’s not. That’s not a constitutional matter, and it’s not the court’s duty, nor even its prerogative, to strike it down on the basis that it is bad or offensive policy. Don’t like it? Repeal it in the legislature. That’s how it works. But now we’re watching people suddenly try to wrap themselves in the constitution after these selfsame have encouraged the CIA to have its own shadow army with outside funding; threatened to default on federal debt; elected two Texans as a President and Vice President team; and approved of asset forfeiture without trial-_-all of which are explicitly forbidden by that constitution._ It’s a crock. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 1, 2012, 4:58am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/192 "2012-04-01T04:58:18Z")
> [@foolsguinea](#): > > Seriously, if the Tenth is sufficiently expansive to prohibit the mandate, _because it is not an enumerated power of Congress,_ the following must also follow: > > 1. The entirety of the First Amendment is redundant and covered by the Tenth. Huh? Can you explain the logic there please? > [@](#): > > 1. NASA is unconstitutional, and must be abolished. The non-military aspect of NASA - yes. There is not much in NASA that was not originally military-based. > [@](#): > > 1. The Controlled Substances Act is unconstitutional, and must be voided. Absolutely. > [@](#): > > Either the mandate is a useful policy for the public welfare, in a consequentialist sense, or it’s not. That’s not a constitutional matter, and it’s not the court’s duty, nor even its prerogative, to strike it down on the basis that it is bad or offensive policy. No. But it is the court’s duty to strike it down if it is against the Constitution. > [@](#): > > But now we’re watching people suddenly try to wrap themselves in the constitution after these selfsame have encouraged the CIA to have its own shadow army with outside funding; threatened to default on federal debt; elected two Texans as a President and Vice President team; and approved of asset forfeiture without trial-_-all of which are explicitly forbidden by that constitution._ It’s a crock. I could go one by one of these (especially “default on federal debt” thing) but why interrupt your flow. In general, is your argument “if you get to do unconstitutional things, we should get to do unconstitutional things too”? ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 1, 2012, 8:04am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/193 "2012-04-01T08:04:39Z")
> [@Lobohan](#): > > So you are shown that you are completely wrong, yet you still say this? Oh, really? Well perhaps you could point out what I said that was wrong. Of course, you’ll be specific and quote the _actual_ thing I said and then show the response that rendered it incorrect. And try leaving the straw at home. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [April 1, 2012, 11:15am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/194 "2012-04-01T11:15:43Z")
> [@foolsguinea](#): > > Seriously, if the Tenth is sufficiently expansive to prohibit the mandate, _because it is not an enumerated power of Congress,_ the following must also follow: > > 1. The entirety of the First Amendment is redundant and covered by the Tenth. > 2. NASA is unconstitutional, and must be abolished. > 3. The Controlled Substances Act is unconstitutional, and must be voided. > > Would you claim these things? If not, then really you’re just grasping at a spurious argument to claim that somehow the constitution protects you from bad policy. It does not. The first amendment deals with a right, the tenth with government powers. They have nothing to do with each other. There is a long, long list of legislature that I think is not a legitimate power of the U.S., if that’s where you’re going. That they exist doesn’t make it right, it highlights what is wrong. Controlled Substances Act certainly does not seem constitutional on an ICC basis, which I believe it was decided on. > [@](#): > > Don’t like it? Repeal it in the legislature. That’s how it works. You realize, of course, that the tenth amendment is a legislative output. You don’t like it? Amend the Constitution, as you suggested. Easy squeezy, give it a go. Or you could leave the status quo, where it’s largely ignored anyway. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 1, 2012, 3:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/195 "2012-04-01T15:55:49Z")
> [@foolsguinea](#): > > Seriously, if the Tenth is sufficiently expansive to prohibit the mandate, _because it is not an enumerated power of Congress,_ the following must also follow: > > 1. The entirety of the First Amendment is redundant and covered by the Tenth. > 2. NASA is unconstitutional, and must be abolished. > 3. The Controlled Substances Act is unconstitutional, and must be voided. 1. The Fourteenth Amendment has (pretty much) applied the entire bill of rights to the states. 2. As was said above, space flight has an important military objective. That could easily come under the “raising and supporting armies” clause. 3. The Controlled Substances Act is sure as hell unconstitutional, in my opinion. ---
**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:** [April 1, 2012, 4:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/196 "2012-04-01T16:37:45Z")
> [@magellan01](#): > > Oh, really? Well perhaps you could point out what I said that was wrong. Of course, you’ll be specific and quote the _actual_ thing I said and then show the response that rendered it incorrect. And try leaving the straw at home. You posted this: > [@magellan01](#): > > So, how do you feel about Nancy Pelosi’s claim that “we have to pass the bill to see what’s in it”? And about the congresspeople who admitted to not reading it? You specifically claimed that Pelosi suggested that the congress people didn’t know what was in it. Elvislives posted a link to a thread on this message board that already dealt with this. > [@Nancy Pelosi](#): > > "You’ve heard about the controversies within the bill, the process about the bill, one or the other. But I don’t know if you have heard that it is legislation for the future, not just about health care for America, but about a healthier America, where preventive care is not something that you have to pay a deductible for or out of pocket. Prevention, prevention, prevention—it’s about diet, not diabetes. It’s going to be very, very exciting. > > “But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy." Where it is clear that she is talking to the American people and saying that once the bill is enacted, the lies and misinformation by the right will die down. She was wrong about that, of course. It’s no big deal, you were wrong, probably because you believe the nonsense you find on RW news sources. The problem is, when shown you were wrong you attacked instead of being gracious about it. Whichever. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 4:45pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/197 "2012-04-01T16:45:27Z")
> [@Really\_Not\_All\_That\_Bright](#): > > True or false: the Social Security Act is constitutional. > [@Stratocaster](#): > > I haven’t given it much thought. Is that controversial, and I missed it? Congress has the power to tax, and spend it on the general welfare, so it seems as if it’s constitutional. What’s the gotcha? > [@jtgain](#): > > The Supreme Court says yes. The switch in time that saved nine. There’s no gotcha. The point is that it’s well settled that Congress can force people to buy into a retirement insurance scheme. The only distinguishing feature between PPACA and SSA is that the former allows individuals to opt out of the government insurance scheme by selecting private insurance instead. Well, that and everyone will receive some sort of benefit under PPACA, which is by no means a guarantee under SS. > [@magellan01](#): > > Oh, really? Well perhaps you could point out what I said that was wrong. Of course, you’ll be specific and quote the _actual_ thing I said and then show the response that rendered it incorrect. And try leaving the straw at home. The others seem to have their feathers up about this, but the point is that your post made it sound like Pelosi said it had to be passed so Congress could “see what’s in it”. She was actually saying it had to be passed so the American people could “see what was in it”. Clumsy phrasing, perhaps, but her point was valid. She was basically saying that the law would ultimately be popular, once we got away from the “death panel” aspects of the debate. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 1, 2012, 4:57pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/198 "2012-04-01T16:57:03Z")
> [@Really\_Not\_All\_That\_Bright](#): > > There’s no gotcha. The point is that it’s well settled that Congress can force people to buy into a retirement insurance scheme. The only distinguishing feature between PPACA and SSA is that the former allows individuals to opt out of the government insurance scheme by selecting private insurance instead. Well, that and everyone will receive some sort of benefit under PPACA, which is by no means a guarantee under SS. There’s no doubt that the Court would hold such a scheme to be valid. I disagree with that, but Kennedy and others conceded so much at oral argument. Had they passed universal single-payer health care and funded it with a payroll tax, for example, we would be there. The problem with that is that there was no way such a scheme would have passed Congress. So, in order to get Dem votes, they passed this individual mandate which is clearly different from a constitutional standpoint. At a minimum, striking this law down and requiring a federal tax at least forces Congress to be honest about its intentions instead of promoting this as a “free market” law. If it’s free market, then I can choose not to participate. The tax scheme that you imply is not functionally different from the current law is certainly different enough because it wouldn’t have gotten the votes to pass. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 5:05pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/199 "2012-04-01T17:05:42Z")
I agree that it wouldn’t have passed had it been framed differently. As far as SCOTUS is concerned, though, that’s not the point; the question is merely whether the feds have the power to do what they’re doing. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 1, 2012, 5:17pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/200 "2012-04-01T17:17:52Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I agree that it wouldn’t have passed had it been framed differently. As far as SCOTUS is concerned, though, that’s not the point; the question is merely whether the feds have the power to do what they’re doing. Right, and I think that the fact that it was passed, not as a tax, but an individual mandate makes them analyze it under the ICC, where it has a much larger chance of being struck down. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 1, 2012, 6:13pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/201 "2012-04-01T18:13:33Z")
They don’t have to analyze it under the ICC, though. Regardless of how it was framed, the penalty underlying the individual mandate is either a tax or it isn’t. If it’s a tax, it falls under the taxing and spending power regardless of what constitutional provision Congress overtly relied on in enacting it. From [the Petitioners’ (Government’s) SCOTUS brief on the individual mandate (the “minimum coverage” provision)](http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-398_petitioner.authcheckdam.pdf): > [@](#): > > In “passing on the constitutionality of a tax law,” a court is “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.” Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 363 (1941). [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=9) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=11)