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?
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?
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.
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.
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.
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?
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.
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.
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.
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.
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.
(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?)
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.
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.
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.
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.
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:
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?
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?