# Majority of States Now Challenging Health Care Law **URL:** \ **Category:** Great Debates\ **Created:** [January 14, 2011, 2:01pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588 "2011-01-14T14:01:07Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 3, 2011, 3:16am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/201 "2011-02-03T03:16:29Z")
> [@hamlet](#): > > it will “raise taxes” only on those who don’t comply with the mandate. It’s a penalty tax meant to stop non-compliance. > > Feel free to now scream “aha! It raises taxes!!” if it will make you feel better. > > To avoid the misleading bullshit rhetoric that all but engulfs anything with the word “tax” anywhere, especially to the unthinking reactionary right wing. I understand bullshit rhetoric is vitally important to some people, but in this case, it interests me not in the least. Okay. We now agree it will raise taxes, but a “penalty tax”? I’ve not heard of those before. I know that if I don’t pay my taxes on time that I will owe them the amount of the tax plus a penalty, but I’ve never seen nor heard of a “penalty tax”. They seem to be two different things to me. Can you point me to an instance of these being imposed by the government. I’ve never come across it before. ---
**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:** [February 3, 2011, 3:47am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/202 "2011-02-03T03:47:16Z")
> [@magellan01](#): > > Okay. We now agree it will raise taxes, No “now” about it, we agreed before. It just took you awhile to catch up. > [@magellan](#): > > …but a “penalty tax”? I’ve not heard of those before. I know that if I don’t pay my taxes on time that I will owe them the amount of the tax plus a penalty, but I’ve never seen nor heard of a “penalty tax”. They seem to be two different things to me. Can you point me to an instance of these being imposed by the government. I’ve never come across it before. Polluters have the choice to put in technology to clean their emissions, or pay a tax. You can also check out [US v. Kahringer](http://supreme.justia.com/us/345/22/case.html), where the Supreme Court discusses the use of taxing power to punish, curtail, or ensure compliance. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [February 3, 2011, 4:16am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/203 "2011-02-03T04:16:00Z")
Two arguments from generally conservative legal types, just to add to the discussion (of course, their political leanings say nothing about the rightness or wrongness of their opinions – reasonable people who otherwise think alike can disagree, and even if they are right, there’s no guarantee that the Supreme Court will see it the same way): [Rick Hills, NYU law professor](http://voices.washingtonpost.com/plum-line/2011/02/conservative_legal_scholar_we.html) (who’s known to few, but is at least self-described as conservative) [Charles Fried](http://www.youtube.com/watch?v=-UGQIkYEBPo&feature=player_embedded), Solicitor General under Reagan. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [February 3, 2011, 4:16am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/204 "2011-02-03T04:16:24Z")
> [@Hamlet](#): > > No “now” about it, we agreed before. It just took you awhile to catch up. Polluters have the choice to put in technology to clean their emissions, or pay a tax. You can also check out [US v. Kahringer](http://supreme.justia.com/us/345/22/case.html), where the Supreme Court discusses the use of taxing power to punish, curtail, or ensure compliance. I think you’re conflating to things: taxes that might be deemed _by some_ to be punitive _in nature_ (like the one in your site), and a penalty that may be levied for failure to pay a tax—whether it’s deemed to be punitive in nature or not. This is from the first paragraph of your site. It draws the usual distinction between the tax and the additional penalty one might be hit with of the tax is not paid: > [@](#): > > Provisions of the Revenue Act of 1951, 26 U.S.C. §§ 3285-3294, levy an occupational tax of $50 per year on persons engaged in the business of accepting wagers; require such persons to register with the Collector of Internal Revenue, and penalize failure to pay the tax and to register. As far as what we’ve been discussing, one need not pay the government anything if they purchase insurance, right? So, so far the money they spend is not a tax, right? They’re simply purchasing insurance the same way they might do if they were encouraged to do so by the government. I think we’d agree on all that. Now we move to the payments in question. What I don’t get is how you can call that a tax. It’s simply a penalty levied upon you for not doing something. The same way a penalty might be levied on me if I fail to pay my income tax or property tax. As I’ve said, I think Obama could have accomplished what he wanted through a tax levied upon everyone, and I think that would be allowable. But that’s not what we have here. You can’t just say: 1) taxes are allowable, 2) this is a tax, 3) therefore it is allowable. Number 2 fails. What is in place now does not resemble a tax. It’s a penalty imposed by the government for not doing something. I can think of no tax imposed by the government that is similar. As far as your polluters, Joe polluter can avoid paying that tax by not operating a plant that has emissions. So, it is a voluntary tax. You don’t have to pay it. Just don’t be in that business. With the bill we’re talking about the only way to not pay any money to anyone is to die. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2011, 4:35am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/205 "2011-02-03T04:35:54Z")
> [@Leaper](#): > > Two arguments from generally conservative legal types, just to add to the discussion (of course, their political leanings say nothing about the rightness or wrongness of their opinions – reasonable people who otherwise think alike can disagree, and even if they are right, there’s no guarantee that the Supreme Court will see it the same way): > > [Rick Hills, NYU law professor](http://voices.washingtonpost.com/plum-line/2011/02/conservative_legal_scholar_we.html) (who’s known to few, but is at least self-described as conservative) Terrible argument. The draft isn’t a power arising under the Commerce Clause. The question is not whether generally inactivity may be regulated – it’s whether _under the Commerce Clause_ inactivity may be regulated. ---
**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:** [February 3, 2011, 2:24pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/206 "2011-02-03T14:24:46Z")
> [@magellan01](#): > > Now we move to the payments in question. What I don’t get is how you can call that a tax. It’s simply a penalty levied upon you for not doing something. The same way a penalty might be levied on me if I fail to pay my income tax or property tax. Or if you don’t put scrubbers on your smokestack. As Kahringer points out, it is acceptable to have another purpose besides revenue raising for a tax. > [@magellan](#): > > As I’ve said, I think Obama could have accomplished what he wanted through a tax levied upon everyone, and I think that would be allowable. But that’s not what we have here. You can’t just say: 1) taxes are allowable, 2) this is a tax, 3) therefore it is allowable. Number 2 fails. What is in place now does not resemble a tax. It’s a penalty imposed by the government for not doing something. Or it is a tax meant to ensure compliance with the mandate. Now, for a thought experiment, I want you to think about all those same sex marriage threads here, or any thread involving constitutional interpretation. In almost every thread, there is someone using the term “judicial activism” or “will of the people” or “deference to the legislature”. Where is that now? > [@magellan](#): > > I can think of no tax imposed by the government that is similar. > > As far as your polluters, Joe polluter can avoid paying that tax by not operating a plant that has emissions. So, it is a voluntary tax. You don’t have to pay it. Just don’t be in that business. With the bill we’re talking about the only way to not pay any money to anyone is to die. Not true. To use your very example, but with a person instead of a company, a person could quit their job, sponge off family and friends, not make enough money, and never have to get health insurance or pay a tax. There, it’s now “voluntary”. If a business can simply quit their business and you get to call it voluntary tax, I think that a person can decide to be below poverty line and I get to call it voluntary. And, just so we can keep everyone on task, the “is it a tax” is a secondary (and I think weaker) argument. The first is that the legislation clearly falls within the Commerce Clause. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2011, 2:45pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/207 "2011-02-03T14:45:22Z")
> [@Hamlet](#): > > The first is that the legislation clearly falls within the Commerce Clause. Er… the legislation clearly falls within the Commerce Clause within the meaning of Wickard and its progeny. If this were 1930, I would argue strenuously that this legislation does NOT fall within the Commerce Clause. As I’ve said before, though, that ship sailed sixty years ago and we weren’t on it. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 3, 2011, 3:27pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/208 "2011-02-03T15:27:19Z")
> [@furt](#): > > No, no industry is _exactly like_ healthcare. But there are plenty of industries that are very widespread, that nearly everyone uses, and that, by some way or another, can be argued to impose costs on third-parties. Absent some clear, inviolate line as to why healthcare is different, I suspect that at some point in the future corporations are going to move mountains to argue that they are analogous to healthcare. Internet access would be my first guess. So I am right in thinking that you cannot think of anything credible the government is on the verge of forcing people to buy, other than health insurance. Because I find the argument that the federal government is going to act as Comcast’s bully boy and pass a law requiring Mrs. Miggins to hook up to the web to be so incredible as to be ridiculous. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2011, 3:43pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/209 "2011-02-03T15:43:58Z")
> [@villa](#): > > So I am right in thinking that you cannot think of anything credible the government is on the verge of forcing people to buy, other than health insurance. Because I find the argument that the federal government is going to act as Comcast’s bully boy and pass a law requiring Mrs. Miggins to hook up to the web to be so incredible as to be ridiculous. Er… is this really an argument for or against the constitutionality of the measure, though? I mean, the government has the power or they don’t. We wouldn’t say that the resolution to that question rests on whether they’d abuse the power somehow, would we? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 3, 2011, 3:54pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/210 "2011-02-03T15:54:37Z")
> [@Bricker](#): > > Er… is this really an argument for or against the constitutionality of the measure, though? I mean, the government has the power or they don’t. We wouldn’t say that the resolution to that question rests on whether they’d abuse the power somehow, would we? Not at all. I don’t think I have said it has anything to do with the constitutionality of it. I think the power exists under _Wickard_, and that is has never been used like this before is probably an indication that the sky isn’t falling, and the democratically elected government is not on the verge of using this power to force us all to buy burgers each Tuesday lunchtime. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2011, 4:17pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/211 "2011-02-03T16:17:47Z")
> [@villa](#): > > Not at all. I don’t think I have said it has anything to do with the constitutionality of it. I think the power exists under _Wickard_, and that is has never been used like this before is probably an indication that the sky isn’t falling, and the democratically elected government is not on the verge of using this power to force us all to buy burgers each Tuesday lunchtime. Agreed. But I think the fear is “nibbled to death by ducks.” Frankly, I find the intrusiveness of the regulation upheld in Wickard to be more personally offensive than the healthcare law. Think about it: the government orders me to pay a tax if I don’t buy health insurance? Irritating and nanny state, but not outrageous. The government orders me not to use my own land to grow food for me and family to eat. THAT is outrageous. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 3, 2011, 4:20pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/212 "2011-02-03T16:20:24Z")
Your family are chickens? 🙂 ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 3, 2011, 4:21pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/213 "2011-02-03T16:21:50Z")
> [@villa](#): > > So I am right in thinking that you cannot think of anything credible the government is on the verge of forcing people to buy, other than health insurance. Because I find the argument that the federal government is going to act as Comcast’s bully boy and pass a law requiring Mrs. Miggins to hook up to the web to be so incredible as to be ridiculous. And fifty years ago people would have found the mandate so incredible as to be ridiculous. Lots of rulings were unthinkable until they happened. What’s your point? Are you really that confident in politicians to resist the tug of corporate money? Given that plenty of prominent constitutional scholars, including some who\* support\* HCR, say that by the principle therein the government could indeed force other purchases, no I don’t find the idea impossible at all. Politicians will always be looking for ways to get money, especially without having to call it a tax, and corporations will always be looking for ways to get money, period. Those are inexorable forces, and “we’re just going to do it this one time” is not nearly a strong enough defense against them. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [February 3, 2011, 4:25pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/214 "2011-02-03T16:25:20Z")
It seems to me the big difference is that you cannot, as a rule, abstain from the health care market. I would wager that there are very, very few people that make it through the entire lives without receiving medical care (perhaps if you were born at home and then died? or were born at home, lived extremely healthy, and died in your sleep?). Or, to put it differently, refusing to have an active health insurance policy **is economic activity in and of itself** , because you are still covered under the hospitals mandate to cover you if you require medical attention. So until we repeal the rules requiring hospitals to care for sick people that show up, regardless of their ability to pay, there is no such thing as “health care inactivity”. But I don’t see anyone pushing for this. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 3, 2011, 4:25pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/215 "2011-02-03T16:25:39Z")
And they are right - they can use it to force other purchases. But they haven’t and they won’t. And the mandate wouldn’t have been so incredible as to be unrealistic 50 years ago. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 3, 2011, 5:05pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/216 "2011-02-03T17:05:02Z")
> [@villa](#): > > And they are right - they can use it to force other purchases. But they haven’t and they won’t. > > And the mandate wouldn’t have been so incredible as to be unrealistic 50 years ago. Agreed, since the wheat mandate wasn’t unrealistic, don’t know the health care mandate would have been. Again, though, these are interesting discussions, but not relevant to constitutionality. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [February 4, 2011, 5:24pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/217 "2011-02-04T17:24:46Z")
> [@Bricker](#): > > Er… the legislation clearly falls within the Commerce Clause within the meaning of Wickard and its progeny. No it does not. We have been over this before. You cannot assume that the Wickard ruling is equally valid in reverse. This mandate is the exact opposite of Wickard. ---
**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:** [February 4, 2011, 6:20pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/218 "2011-02-04T18:20:39Z")
Has anyone taken note of this language in the Florida judge’s ruling? From [p. 64-65 of the ruling](http://graphics8.nytimes.com/packages/pdf/national/20110131VINSON_HEALTH.pdf): **Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’** severing any ‘problematic portions while leaving the remainder intact.’” . . . ``` The question of severability ultimately turns on the nature of the statute at issue. For example, **if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme** , it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. ``` [From the brief](http://downloads.frc.org/EF/EF10L23.pdf) prepared by the Family Research Council: ``` **Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.”** ``` . . . ``` The question of severability is a judicial inquiry of two alternatives regarding the nature of a statute. One possibility is that **Congress intended a given statute as a bundle of separate legislative embodiments, which for the sake of convenience, avoiding redundancy, and contextual application, are bundled together in a single legislative enactment.** ``` So the judge used nearly exact language provided by a hate group, to support his ruling. Does anyone else find this disturbing? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 4, 2011, 6:26pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/219 "2011-02-04T18:26:06Z")
> [@Shayna](#): > > So the judge used nearly exact language provided by a hate group, to support his ruling. Does anyone else find this disturbing? It’s a really common principle. I don’t know if it is worded that way elsewhere or not, but it’s a very widely expressed general principle. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 4, 2011, 6:27pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/220 "2011-02-04T18:27:59Z")
The Supreme Court is a hate group?!? > [@Ayotte v. Planned Parenthood of Northern New Eng.](#): > > Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. That opinion was authored by Justice O’Connor. I always knew there was something about her. [Previous page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=10) [Next page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=12)