# 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:** 16\ **Page:** 23
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 4, 2012, 11:49pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/442 "2012-04-04T23:49:20Z")
> [@Fear\_Itself](#): > > It is what it is. Translation: you don’t want to fully own your position. Okay. Can’t say I blame you. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 4, 2012, 11:52pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/443 "2012-04-04T23:52:34Z")
> [@magellan01](#): > > Can you think of any government-imposed penalty that does not result from not following a law/regulation/rule/etc.? To hear some talk, being rich is heavily, heavily penalized. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 5, 2012, 12:08am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/444 "2012-04-05T00:08:11Z")
> [@magellan01](#): > > Translation: Too bad you aren’t multi-lingual. It loses something when you torture it so. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 5, 2012, 12:34am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/445 "2012-04-05T00:34:08Z")
> [@ElvisL1ves](#): > > Just another thought for you, **jtgain** : You shouldn’t find it odd if you look at the number of people who think the framers didn’t intend for the first half of the Second Amendment to have any meaning at all. > > **magellan01** , please, bro. Do yourself a huge favor and \*read \*the thing sometime. Start with the first three words, written big and bright for everyone to see. Then stop there and reflect for a moment on what they mean and who wrote them and who chose them to write them. > > That’s enough for the first day of lessons. For future ones, you’re on your own, though. Wonderful! So, because the preamble of the Constitution begins with “We the people”, and the people create the federal government, there is no distinction between the people and the government? **Elvis** —BABE!—this is groundbreaking! You’re going to be on TV…you’re going to be asked to speak at law colleges…you’re going to go down in history of one of the greatest legal minds of the last 300 years. All this messiness with rights reserved for the people and rights reserved for the federal government all goes away. The federal government can do whatever it wants however it wants because…as per the great legal mind, ElvisL1ves, advises us: The “federal government” and “the people” referred to in the U.S. Constitution…they’re the “same thing”. The “government is a creation of the people, a mechanism by which the people act jointly”. Not some malevolent, oppressive foreign power imposed upon us. So whatever the federal government wants to do, it can rightfully do. Because the rights The Constitution reserves for the people really are reserved for the government, too. Because they are, as **ElvisL1ves** says: THE SAME THING! Have a digested your legal brilliance accurately? If not please do clarify. It’s crucial we get it right as it will be changing so much existing law and be a new foundation for so much more. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 5, 2012, 12:36am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/446 "2012-04-05T00:36:27Z")
> [@magellan01](#): > > I’m not a lawyer, so I won’t attempt to categorize the type of infraction. That said, I do believe that there was a crime/infraction/etc. If not, how there could a _penalty_ be imposed? Is it breaking the law to take your money out of your IRA before you should (the old “substantial penalty for early withdrawal”? To earn enough to move up to the next, likely higher, tax rate? To file as a married couple rather than single? ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 5, 2012, 12:36am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/447 "2012-04-05T00:36:30Z")
> [@erislover](#): > > To hear some talk, being rich is heavily, heavily penalized. I guess some might be of that opinion, but we’re talking about legal constructs that involve one having to do something (or not doing something), and if they fail, the government slaps them with a penalty, fine, etc. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 5, 2012, 12:41am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/448 "2012-04-05T00:41:51Z")
> [@Hamlet](#): > > Is it breaking the law to take your money out of your IRA before you should (the old “substantial penalty for early withdrawal”? I think not. I think the penalty is simply something you agreed to when you opened the IRA. Even if not, I’m pretty sure it falls under tax law. years ago I cashed in 401K from an old employer and I had to pay the tax and the penalty to the IRS. (If I recall correctly.) The “infraction” was withdrawing my money prematurely. If I don’t do that, there would have been no penalty. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 5, 2012, 12:42am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/449 "2012-04-05T00:42:54Z")
> [@Fear\_Itself](#): > > Too bad you aren’t multi-lingual. It loses something when you torture it so. Don’t trouble yourself. I said I didn’t blame you. And don’t. In fact, I think it was wise of you. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 5, 2012, 1:08am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/450 "2012-04-05T01:08:52Z")
> [@magellan01](#): > > The “infraction” was withdrawing my money prematurely. If I don’t do that, there would have been no penalty. I would really hesitate to describe every action that raises your taxes, whether it is taking your money out of an IRA early, filing jointly, or earning more income to be “infractions” or “breaking the law”. But, once again, I fear we have devolved into a semantic argument that isn’t really relevant. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 5, 2012, 1:12am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/451 "2012-04-05T01:12:38Z")
> [@magellan01](#): > > Don’t trouble yourself. You don’t know what that means to me. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 5, 2012, 1:24am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/452 "2012-04-05T01:24:47Z")
> [@Hamlet](#): > > I would really hesitate to describe every action that raises your taxes, whether it is taking your money out of an IRA early, filing jointly, or earning more income to be “infractions” or “breaking the law”. But, once again, I fear we have devolved into a semantic argument that isn’t really relevant. I’d agree that not every action that raises your taxes are the result of “infractions”. But the increase resulting form filing your return late or making an an early withdrawal from a 401K are substantially different than having to pay more because you earned more. The first two are the result of you not doing what the government tells you you must do. Ditto for the penalty incurred from not buying health insurance as mandated by the ACA. I appreciate that we might have to just agree to disagree, but I really don’t think it’s simply a matter of semantics. The differences are legally and functionally different. ::shrug:: ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [April 5, 2012, 5:18am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/453 "2012-04-05T05:18:05Z")
> [@magellan01](#): > > And you don’t mind a President, then, intentionally misleading the citizens? If I objected to every politician who intentionally misled citizens, or every politician who argued one way at one time and another way about the same issue at a different time, I’d never be able to vote. Being pragmatic about politicians changing their mind or describing things misleadingly is a fact of life in this country–and I’m sure you’re going to hold your nose and vote for the “We was for the individual mandate before we was against it” Republican party or Ron “I totally don’t vet content under my name in my newsletters” Paul. Spin isn’t going away. Cope. ---
**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 5, 2012, 1:41pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/454 "2012-04-05T13:41:25Z")
> [@magellan01](#): > > I appreciate that we might have to just agree to disagree, but I really don’t think it’s simply a matter of semantics. The differences are legally and functionally different. ::shrug:: Perhaps you’d feel differently if you considered the issue in the context of a different scenario. For the purpose of the debate, assume that the individual mandate muffinhead/tax/penalty/thing-that-must-be-paid functions as a tax. Suppose the Constitution did not allow Congress to regulate commerce. Congress, wanting to implement a particular commercial regulation, does so under its taxing power. Congresscritters refer to the legislation as a “tax” on the floor, the legislative finding portions of the House and Senate bills reference the taxing power, and the government defends the enactment in court as a tax. However, the enactment is in fact in no way similar to a tax. Does it matter what Congress calls it when it gets challenged in court? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 5, 2012, 6:16pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/455 "2012-04-05T18:16:32Z")
The more I read this thread, the more I wish that 5 of the Justices had the internal fortitude to overturn _Wickard_. Then we could focus on getting the _Slaughterhouse Cases_ overturned. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [April 5, 2012, 6:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/456 "2012-04-05T18:43:04Z")
> [@Saint\_Cad](#): > > The more I read this thread, the more I wish that 5 of the Justices had the internal fortitude to overturn _Wickard_. Then we could focus on getting the _Slaughterhouse Cases_ overturned. I hadn’t heard of this one. In these cases, the court decided that the 14th amendment doesn’t prevent states from making laws that take away civil rights. But to my knowledge, no one uses that decision as precedent anymore. (In fact, strangely enough, it appears the _dissent_ from those cases is sometimes cited in legal cases!) Why work to have it overturned? Just for symbolic purposes? ---
**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 5, 2012, 7:20pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/457 "2012-04-05T19:20:26Z")
> [@Frylock](#): > > I hadn’t heard of this one. > > In these cases, the court decided that the 14th amendment doesn’t prevent states from making laws that take away civil rights. But to my knowledge, no one uses that decision as precedent anymore. (In fact, strangely enough, it appears the _dissent_ from those cases is sometimes cited in legal cases!) Why work to have it overturned? Just for symbolic purposes? It’s a bit more complex than that. It’s not that they said the 14th Amendment doesn’t apply to states; it’s that they said the Privileges & Immunities Clause doesn’t apply the Bill of Rights to the states. Essentially, the holding made the P&I Clause meaningless. Nobody cites _the Slaughterhouse Cases_ because the courts worked around this astronomically stupid holding by applying bits of the Bill of Rights to the states through the Due Process Clause. They’re still good law, though, until SCOTUS does the sensible thing; constitutional litigators pay lip service to the precedent by describing rights as enforceable against states through the Due Process Clause. [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=22)