# 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:** 7
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 29, 2012, 3:49pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/122 "2012-03-29T15:49:57Z")
But this is my objection: do X or pay a penalty is _the effect_ of everything the government does [in this context]. I’m getting a little lost between the three threads now but this is why I brought up the fourth amendment example. Merely holding law enforcement responsible for fourth amendment violations but not excluding evidence means the fourth amendment does basically nothing: respect it or not, evidence is evidence. The fourth amendment would then say “the right of the people to be secure isn’t real, we’ll make law enforcement pay now (get a warrant) or pay later (face administrative action—which conveniently is up to the government) but either way you’re fucked.” The exclusionary principle _genuinely_ alters the situation. There is no way now to have to superficially different but effectually similar activities be merely _called_ something different. Now there’s either protection, or warrants, and these mean something (have functionally different semantics). So when I am questioning you, I am operating under the assumption that you’re not just playing word games, you think there really is a genuine difference, and I am trying to understand what that difference implies with respect to all the existing functionally equivalent behaviors. If it helps, just consider that I’m asking you to single-handedly rewrite the constitution to make your principle clear. What can the government do? Hopefully this is clear. 🙂 ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2012, 4:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/123 "2012-03-29T16:00:01Z")
> [@erislover](#): > > But this is my objection: do X or pay a penalty is _the effect_ of everything the government does [in this context]. I’m getting a little lost between the three threads now but this is why I brought up the fourth amendment example. Merely holding law enforcement responsible for fourth amendment violations but not excluding evidence means the fourth amendment does basically nothing: respect it or not, evidence is evidence. The fourth amendment would then say “the right of the people to be secure isn’t real, we’ll make law enforcement pay now (get a warrant) or pay later (face administrative action—which conveniently is up to the government) but either way you’re fucked.” The exclusionary principle _genuinely_ alters the situation. There is no way now to have to superficially different but effectually similar activities be merely _called_ something different. Now there’s either protection, or warrants, and these mean something (have functionally different semantics). > > So when I am questioning you, I am operating under the assumption that you’re not just playing word games, you think there really is a genuine difference, and I am trying to understand what that difference implies with respect to all the existing functionally equivalent behaviors. If it helps, just consider that I’m asking you to single-handedly rewrite the constitution to make your principle clear. What can the government do? > > Hopefully this is clear. 🙂 Clear as mud. 🙂 Are you asking that if I think that the government shouldn’t be penalizing people for not having health care, then how do we re-write the other provisions in the constitution, like the power to tax, so that no funny business can go on and they just can’t re-pass a health care bill that is the same in every respect except it is just restructured as a tax or some other such enumerated power that it does the same thing? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2012, 4:16pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/124 "2012-03-29T16:16:12Z")
Is this what you are talking about: > **[Is the Federal government mandating that I have another child?](https://boards.straightdope.com/sdmb/showthread.php?t=646657)** > > In 2012, my youngest child will turn 17 years old. This means that he will no longer be a qualifying child for the Child Tax Credit. This will result in a $1000 increase to my and my wife’s (married joint) AGI on our income taxes. To me, this is... ? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 29, 2012, 4:23pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/125 "2012-03-29T16:23:39Z")
Things can be different. They can be functionally different: having a warrant and not having a warrant mean two different things in the context of searching for evidence of a crime. They can be merely superficially different but functionally equivalent: tax everyone then give homeowners tax breaks, or simply tax non-homeowners. I am supposing that what you suggest is not superficial. You, personally, have some underlying principle guiding your idea about this issue. I am supposing that this principle is not based on superficial features (rebate v penalty) but is based on some existing difference or a difference you think is or should be legally significant (warrant or no useable evidence). And I am trying to understand what this difference actually is. Whether you think it is there in the constitution, or implied, or just your own opinion—I care not for the source at this point, just seeking understanding. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [March 29, 2012, 4:41pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/126 "2012-03-29T16:41:59Z")
> [@Mr\_Downtown](#): > > As for your tweak, yes, I think it would bring it within Congress’s power to regulate interstate commerce—but it would lead to a lot of people putting off seeing the doctor. Well, I was being a bit sneaky, as almost every person born in America is born in a hospital, and thus receives medical care from day 1. In fact, part the of the EMTALA covers people who show up at the hospital in labor. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2012, 4:42pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/127 "2012-03-29T16:42:38Z")
> [@erislover](#): > > Things can be different. They can be functionally different: having a warrant and not having a warrant mean two different things in the context of searching for evidence of a crime. They can be merely superficially different but functionally equivalent: tax everyone then give homeowners tax breaks, or simply tax non-homeowners. I am supposing that what you suggest is not superficial. You, personally, have some underlying principle guiding your idea about this issue. I am supposing that this principle is not based on superficial features (rebate v penalty) but is based on some existing difference or a difference you think is or should be legally significant (warrant or no useable evidence). And I am trying to understand what this difference actually is. Whether you think it is there in the constitution, or implied, or just your own opinion—I care not for the source at this point, just seeking understanding. It’s my personal opinion that it is implied by the Constitution or any other agreement or contract. Surely we wouldn’t hold that the 1st amendment protects freedom of religion, but that since Congress has a tax power, they can institute a $10k “not going to church on Sunday” tax, or since going to church right across the border in a different state affects interstate commerce that it can regulate worship across state lines. The provisions should be read in harmony so if we conclude that Congress is one of limited, enumerated powers because the framers made it a point to list them all, it is silly to construe the commerce clause or the tax power in a way to defeat this limitation. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 29, 2012, 5:04pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/128 "2012-03-29T17:04:54Z")
But that is just brushing the entire problem under the table. _What is implied?_ What are the limits? Where is the power to ban a substance like marijuana or DDT? Where is the power to give subsidies to corn growers, parents, and Volt-purchasers? Most of the government’s powers and people’s protections are implied because there’s only so much Constitution to go around. But when push comes to shove, someone has to explain _what_ is implied. What is implied? ---
**Author:** ![Randvek](https://avatars.discourse-cdn.com/v4/letter/r/a6a055/32.png) [@Randvek](https://boards.straightdope.com/u/Randvek)\ **Post date:** [March 29, 2012, 5:07pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/129 "2012-03-29T17:07:54Z")
I doubt the whole thing will be struck down. No matter how the Supreme Court feels ideologically, axing an entire bill of this size and importance is rare. I think it’s far more likely that the individual mandate is struck down but the rest of the bill remains, creating a scenario in which even the Republican party wants to figure out some way to fix the bill. But maybe I just have more faith (possibly misplaced!) in the judicial system that everyone else. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 29, 2012, 5:14pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/130 "2012-03-29T17:14:50Z")
> [@erislover](#): > > But that is just brushing the entire problem under the table. _What is implied?_ What are the limits? Where is the power to ban a substance like marijuana or DDT? Where is the power to give subsidies to corn growers, parents, and Volt-purchasers? Most of the government’s powers and people’s protections are implied because there’s only so much Constitution to go around. But when push comes to shove, someone has to explain _what_ is implied. What is implied? What is implied and what are the limits is what the court is deciding right now. The courts have ruled that banning marijuana and DDT come under the interstate commerce clause power. Same way with subsidies to corn growers. When I become Supreme U.S. despot, before suspending the Constitution, I will rule that the ICC contains no such power to ban marijuana or DDT for purely in state uses, and that the same clause does not allow subsidies to these intra state activities. Like you talked about earlier, I will rule that the ICC is there to keep states from imposing import tariffs and to do things like keeping marijuana out of states that want to keep it illegal, and facilitating the shipment of it between states that want to make it legal so that everyone’s state power is protected. If I’m reading your questions correctly, you have the same issue that I had when I first started law school: You want a bright-line rule that every situation known to man can be applied to so that it is extremely easy to point to the rule and say “Ah! This activity goes here, and not there.” Human activity is so complex that it is impossible to do such things. Once you think you have a rule figured out, something comes along to throw a monkey wrench into it. My view of the ICC is much more restrained and more things would fall outside of it, but you would still have many court cases to try to decide what exactly is being implied. Law speaks only in sufficiently broad terms to allow for such varying activities. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 29, 2012, 5:26pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/131 "2012-03-29T17:26:00Z")
> [@jtgain](#): > > Like you talked about earlier, I will rule that the ICC is there to keep states from imposing import tariffs and to do things like keeping marijuana out of states that want to keep it illegal, and facilitating the shipment of it between states that want to make it legal so that everyone’s state power is protected. I think this is a great way to understand a lot of the issues. I’m not sure it is a perfectly bright line but even so it is stated clearly. So I think, to sort of wrap it up: not only should this law be unconstitutional, a lot of government activity is also exceeding constitutional bounds, in your opinion. IOW: the line was already crossed. I am pretty sure this is my opinion, too. > [@](#): > > If I’m reading your questions correctly, you have the same issue that I had when I first started law school: You want a bright-line rule that every situation known to man can be applied to so that it is extremely easy to point to the rule and say “Ah! This activity goes here, and not there.” Oh, I don’t think there can be a bright line rule in law for every situation ever. But I think it could be that you think there is a line this crosses, which you can explain. 🙂 I expect the Court to explain itself in its own time. I believe there is no system sufficiently clear to handle anything of interest. But, yeah, we’ve got to get by in the meantime. ---
**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 29, 2012, 6:44pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/132 "2012-03-29T18:44:08Z")
> [@jackdavinci](#): > > The thing I find really amusing about this whole thing is I like the bill except for the mandate, but I think the mandate is one of the stupidest things ever conceived, and I’m pretty hardcore liberal. And I see other liberals struggling to defend it, I guess because they want to be team players, or because they want to save the other parts of the bill. It puts me in the awkward position of knowing what it feels like to look down on liberals lol. > > The thing is, the mandate isn’t even really a liberal policy in principle, or a great Obama idea. It was a haphazard compromise between parties that doesn’t really benefit either side. I wish we’d stop defending it, or even owning it. I understand the desire to hold on to it, because other parts of the bill are fantastic and it would be crappy to lose them in the process, but the mandate is really stupid and unjustifiable part and has to go. Defending it on party lines is just embarrassing. I’m less harsh on the mandate _as written_ then you sound to be. It’s pretty much a tax penalty, and a mild one. But I consider a narrow striking down of the mandate (which was demanded by the insurance industry) while keeping the rest of the big giant bill (including a Medicaid expansion, new regulations that try to stop rescission, a 10% hike in the capital gains tax) not only sort of an obvious way forward (as most of the PPACA is not really tied to the mandate) but a win. Most of the bill was necessary if conservative fixes. The mandate was the one part anyone can say aught bad about. I can live with it being removed. (I don’t think it will be.) And if we lose some regulations on health insurance in the process, hey, we still got a needed Medicaid expansion, and Mitt Romney’s taxes will still merely be insultingly and abusively low instead of hyper-absurdly, insultingly, abusively low. ---
**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 29, 2012, 7:02pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/133 "2012-03-29T19:02:30Z")
> [@yorick73](#): > > I think it was Scalia that said this is not about the healthcare market…it is about the health insurance market. Ah, but are they severable? 😛 (I hate private health insurers and want a public hospital system. Romneycare is not my ideal. Would people who use the “health insurance not health care” line go in for a subsidized-hospital system?) ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [March 29, 2012, 7:35pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/134 "2012-03-29T19:35:52Z")
> [@foolsguinea](#): > > (I hate private health insurers and want a public hospital system. Romneycare is not my ideal. Would people who use the “health insurance not health care” line go in for a subsidized-hospital system?) I’ll speak up for one: yes. It’s not my ideal, but a nationwide chain of free government-run clinics would be vastly preferable to the current proposal. I’d also be in favor of free, tax-supported catastrophic-care insurance for all citizens. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [March 29, 2012, 8:29pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/135 "2012-03-29T20:29:22Z")
> [@furt](#): > > I’ll speak up for one: yes. > > It’s not my ideal, but a nationwide chain of free government-run clinics would be vastly preferable to the current proposal. > > I’d also be in favor of free, tax-supported catastrophic-care insurance for all citizens. Amen on both counts. And really that is the silver lining if SCOTUS strikes this compromise down in part or in full. We can finally discuss the real options - continuing the current private-insurance model or moving towards legitimate universal coverage of some sort. ---
**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 29, 2012, 9:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/136 "2012-03-29T21:43:13Z")
> [@Left\_Hand\_of\_Dorkness](#): > > With this law, the government recognizes the financial contribution you’re making to the nation’s health-care system through paying insurance by not making you pay this new tax (or fine), and you don’t get that exemption if you choose not to have insurance. > [@jackdavinci](#): > > I guess the main distinction is, assuming poverty level folks are reimbursed, do they still have to lay out the initial premium? Even if they don’t ultimately end up having to pay, that initial layout would still be devastating. That seems like a very large distinction to me. Poverty-level folks are covered by Medicaid, thanks. Arguing against the mandate they don’t have for their sake is like arguing against the estate tax for the middle-income-earner’s sake. ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [March 30, 2012, 1:13am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/137 "2012-03-30T01:13:06Z")
> [@Mr\_Downtown](#): > > The doctors and hospitals are already engaged in commerce, so Congress may regulate how they do it. An uninsured person who never gets around to purchasing any is not participating in commerce, so Congress has no power over him. Not so. See _Jacobson_. Republican Solicitor General Charles Fried quoted it and I linked to it above. And as in _Wickard_, by growing his own wheat for his own personal consumption, it **kept him out of participating in commerce**. The Supremes said Congress could make him destroy his crops, thereby forcing him to have to participate in commerce if he wanted to feed his animals. You may not like it, but the legal precedent _does_ exist. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [March 30, 2012, 3:57am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/138 "2012-03-30T03:57:32Z")
Jacobson was a _ **state** _ mandate. Irrelevant to our inquiry here. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [March 30, 2012, 3:59am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/139 "2012-03-30T03:59:22Z")
> [@Shayna](#): > > And as in _Wickard_, by growing his own wheat for his own personal consumption, it **kept him out of participating in commerce**. The Supremes said Congress could make him destroy his crops, thereby forcing him to have to participate in commerce if he wanted to feed his animals. > > You may not like it, but the legal precedent _does_ exist. And you already know full well what the answer is: Wickard was only under said obligation so long as he remained a farmer, whereas the current law offers no such out. ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [March 30, 2012, 1:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/140 "2012-03-30T13:33:57Z")
Listen guys, you aren’t arguing with me and what _I_ know full well. You’re arguing with someone much more knowledgeable in this area than you _or_ I: Ronald Reagan’s Solicitor General. Here’s some of what he had to say on the 3-Ring Circus masquerading as the Supreme Court and the merits of The People’s case: > [@Solicitor General Charles Fried](#): > > There’s all this stuff that got in there about creating commerce in order to regulate it. … But quite apart from that, what is the commerce? The commerce is not the health insurance market. The commerce is the health-care market, as [current solicitor general Donald] Verrilli said a million times. And it’s very hard to deny that. > > There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. **Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench.** > > … > > Activity and inactivity is not in the Constitution. Now, there are millions of cases that talk about the power to regulate activities that affect interstate commerce, from which Randy Barnett drew the conclusion inactivity is not included. It just hadn’t come up! > > And if 95 percent of them are in that market every five years, they’re in it. They haven’t put that off. They’ve gone to a health-care clinic. They’ve procured a prescription for a prescription drug. Ninety-five percent of the population! So where’s the inactivity? > > The other thing is I think it’s Justice Kennedy who said this fundamentally changes the relationship of the citizen to the government. \*\*That’s an appalling piece of phony rhetoric. \*\*There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in in the ’60s. That’s a fundamental change. But this? **This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years.** > > [Reagan’s solicitor general: ‘Health care is interstate commerce. Is this a regulation of it? Yes. End of story.’](http://www.washingtonpost.com/blogs/ezra-klein/post/reagans-solicitor-general-health-care-is-interstate-commerce-is-this-a-regulation-of-it-yes-end-of-story/2011/08/25/gIQAmaQigS_blog.html) > [@Charles Fried](#): > > … the solicitor general is treated with great deference by the justices not because of his title but because he is trusted to give on behalf of the government a sober, accurate, measured presentation that is scrupulously fair to the other side of the argument and insists on stating the strengths and weaknesses of his own case. > > … > > What he encountered instead was a barrage of **hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions**, which are supposed to clarify the presentation and probe for weaknesses. > [The government’s chief advocate got hammered for his defense of Obamacare before the Supreme Court. Former Solicitor General Charles Fried on what his critics got wrong.](http://www.thedailybeast.com/articles/2012/03/29/solicitor-general-s-critics-wrong-about-his-defense-of-obamacare.html) So it’s really quite simple. The Supreme Court has turned into a clown show and if this legislation is stripped in any way, regardless how they spin it in their ruling, it will be a travesty of justice. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 30, 2012, 1:40pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/141 "2012-03-30T13:40:33Z")
> [@Shayna](#): > > So it’s really quite simple. The Supreme Court has turned into a clown show and if this legislation is stripped in any way, regardless how they spin it in their ruling, it will be a travesty of justice. Well, if Ronald’s Reagan’s Solicitor General says it, then we can close the thread, no? What if Anthony Kennedy and Antonin Scalia say otherwise? They were Reagan SCOTUS appointments. Does the 2-1 mean that you will defer to the majority of Reagan administration members chiming in? [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=6) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=8)