# 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:** 4
**Author:** ![carsarenotthefuture](https://avatars.discourse-cdn.com/v4/letter/c/76d3ee/32.png) [@carsarenotthefuture](https://boards.straightdope.com/u/carsarenotthefuture)\ **Post date:** [January 19, 2011, 6:45pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/61 "2011-01-19T18:45:50Z")
Must read on this issue: [http://www.healthcare-now.org/update-on-single-payer-from-dr-margaret-flowers/](http://www.healthcare-now.org/update-on-single-payer-from-dr-margaret-flowers/) See also: [pink scare: health care](http://pink-scare.blogspot.com/search/label/health%20care) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 19, 2011, 6:46pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/62 "2011-01-19T18:46:14Z")
> [@Bricker](#): > > I think that’s premature (not that you asked me). The position of the 28 states is that the legislation is _already_ violative of the Constitution. Whether they’d be willing to change the Constitution over such a thing if the courts disagree is a completely untested proposition. I completely agree. Which is why linking the number of states in the lawsuits to a possible Constitutional Convention is ridiculous. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 19, 2011, 11:29pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/63 "2011-01-19T23:29:46Z")
It’s interesting to learn that a constitutional argument’s merit depends upon the number of elected officials making political judgments about their support of it. I must have been sick that day in Civics class. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 20, 2011, 2:35am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/64 "2011-01-20T02:35:31Z")
> [@YamatoTwinkie](#): > > Couldn’t the federal government conceivably raise income taxes on all individuals and then offer a deduction for all individuals who buy private insurance, to accomplish the exact same net result as the “penalty”? Yes, but that would politically difficult to do. > [@](#): > > Take the home-loan interest deduction, for example. Isn’t the government forcing everyone to take out a home loan from a private company or pay a penalty? Is there any difference other than the bookkeeping required? Can you clarify where the penalty comes from? They don’t get a tax deduction, but that’s not a penalty. ---
**Author:** ![YamatoTwinkie](https://avatars.discourse-cdn.com/v4/letter/y/cc9497/32.png) [@YamatoTwinkie](https://boards.straightdope.com/u/YamatoTwinkie)\ **Post date:** [January 20, 2011, 4:50am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/65 "2011-01-20T04:50:09Z")
> [@John\_Mace](#): > > Can you clarify where the penalty comes from? Someone has to pay for the tax deductions other people get (deficit spending aside). Does it really make a difference if the Government says: “all people named John pay a $100 penalty” or “all people not named John get a $100 tax credit. Oh and we’re otherwise raising taxes/cutting services for everyone to cover it” ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [January 20, 2011, 5:16am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/66 "2011-01-20T05:16:42Z")
> [@villa](#): > > Doesn’t _Kelo_ require an individual to engage in economic activity with a private company? Yes but wasn’t Kelo based on the Takings Clause of the Fifth Amendment? The Constitution specifically grants eminent domain. Not that I agree with the ruling. I think that it’s a stretch to say that private development is a “public use” simply because of the potential for economic growth. But if you grant that it is a public use, then it would seem to follow that it is constitutionally protected. Whether we agree with it or not, Kelo was ruled as it was ruled, so could it be argued, using Kelo as a precedent, that the individual mandate falls under the Takings Clause? It could be argued that the public good is served by everyone having health coverage. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [January 20, 2011, 6:39am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/67 "2011-01-20T06:39:01Z")
> [@Bricker](#): > > **Lord Feldon** – your correction is noted. In turn, I’d add Greg Phillips of Wyoming, a Democrat who was not forced into the action. I’m not sure how you can make this claim with any degree of certainty. He was hand-picked by his friend, the governor, who also used to be his boss and a partner. One of the top promises made by this governor was that the state would join the lawsuit. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 20, 2011, 7:25am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/68 "2011-01-20T07:25:32Z")
They’re betting a long shot, but they can’t really lose, betting a bottle cap against a hundred bucks. They’re betting that the Supremes are so ideologically synched in with their agenda that they will find some emanation of a penumbra that they can inflate to a Constitutional issue big enough to stick it to Obama. Its the same process by which a Japanese condom is inflated to become a blimp. A lot of Dems are lawyers, and have some understanding of Constitutional issues. I understand Obama has dabbled somewhat in the subject, academic-wise. At any rate, I doubt they spent this much time on the project of reform and never noticed some glaring flaw. On the other hand, I haven’t the slightest doubt that if the Roberts court wants to find it, they will. And if it doesn’t work, they’ve lost nothing, just take a different approach. Its not like anyone with an anti-reform agenda is going to lack for funding. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [January 20, 2011, 2:46pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/69 "2011-01-20T14:46:24Z")
> [@elucidator](#): > > A lot of Dems are lawyers, and have some understanding of Constitutional issues. Same was true of the Democrats who set up the NRA in the New Deal - that didn’t stop large parts of it from being found unconstitutional in _Schechter Poultry v. United States_. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 20, 2011, 3:06pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/70 "2011-01-20T15:06:03Z")
> [@John\_Mace](#): > > Can you clarify where the penalty comes from? They don’t get a tax deduction, but that’s not a penalty. It’s far from an unheard of legal argument to claim that not qualifying for a benefit equals receiving a penalty. I don’t know if it would apply here (haven’t sat down and thought about it) but it has been very successful in other areas - in particular first amendment type claims. ---
**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:** [January 20, 2011, 4:04pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/71 "2011-01-20T16:04:04Z")
I see a lot of confusion over _Kelo_ in this thread. In an urban renewal scheme, private property is taken _by the local government._ It may later be resold to a developer, but that’s a decision to be made by the local government. The homeowner never deals with the developer. _Kelo_ declined to invent a new constitutional right to protect homeowners from their own city councils. The Supreme Court’s refusal to engage in judicial activism was somehow spun by conservatives as engaging in judicial activism. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [January 20, 2011, 4:07pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/72 "2011-01-20T16:07:34Z")
> [@Mr\_Downtown](#): > > I see a lot of confusion over _Kelo_ in this thread. In an urban renewal scheme, private property is taken _by the local government._ It may later be resold to a developer, but that’s a decision to be made by the local government. The homeowner never deals with the developer. except when, you know, the local government has already made the decision to turn it over to the developer when they come a-knockin for your propertay. then again, I’m not really a textualist at all. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 20, 2011, 4:17pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/73 "2011-01-20T16:17:45Z")
> [@Mr.Moto](#): > > Same was true of the Democrats who set up the NRA in the New Deal - that didn’t stop large parts of it from being found unconstitutional in _Schechter Poultry v. United States_. Do you mean to contradict my point, or emphasize? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 20, 2011, 4:52pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/74 "2011-01-20T16:52:10Z")
> [@DMC](#): > > I’m not sure how you can make this claim with any degree of certainty. He was hand-picked by his friend, the governor, who also used to be his boss and a partner. One of the top promises made by this governor was that the state would join the lawsuit. For precisely that reason. He knew what he was getting into. His friend the governor made no secret of his plans; Phillips’ acceptance of the job was with the knowledge that this is what it entailed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 20, 2011, 4:57pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/75 "2011-01-20T16:57:13Z")
> [@elucidator](#): > > They’re betting a long shot, but they can’t really lose, betting a bottle cap against a hundred bucks. They’re betting that the Supremes are so ideologically synched in with their agenda that they will find some emanation of a penumbra that they can inflate to a Constitutional issue big enough to stick it to Obama. Its the same process by which a Japanese condom is inflated to become a blimp. > > A lot of Dems are lawyers, and have some understanding of Constitutional issues. I understand Obama has dabbled somewhat in the subject, academic-wise. At any rate, I doubt they spent this much time on the project of reform and never noticed some glaring flaw. On the other hand, I haven’t the slightest doubt that if the Roberts court wants to find it, they will. > > And if it doesn’t work, they’ve lost nothing, just take a different approach. Its not like anyone with an anti-reform agenda is going to lack for funding. This is a remarkably poor analysis. There’s no need to find an emanation of a penumbra to invalidate this legislation. The plain language of the Constitution suffices. What they would have to do is either implicitly ignore _stare decisis_. There’s nothing magical about _Wickard_. It’s just the settled caselaw. But then so was Bowers v Hardwick, and the Court in _Lawrence v Texas_ managed to convince themselves to overrule it. The Democrats in Congress did not, I’m sure, consider that this legislation might be constitutionally infirm. They relied on the existing precedent. Overruling (or distinguishing) Wickard would not be a bad thing. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 20, 2011, 5:02pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/76 "2011-01-20T17:02:25Z")
> [@Bricker](#): > > What they would have to do is either implicitly ignore _stare decisis_. There’s nothing magical about _Wickard_. It’s just the settled caselaw. > > But then so was Bowers v Hardwick, and the Court in _Lawrence v Texas_ managed to convince themselves to overrule it. Very different practical effect, though, which means a very different approach from the Court. Overruling _Bowers_ changed almost nothing - it is a very coralled decision. While it is possible to argue the rationale behind _Lawrence_ had more broad reaching effects, the actual overturning of _Bowers_ has almost none (apart from being a very welcome end to discrimination against a significant group of the population). Overturning _Wickard_, on the other hand, would be legally speaking seismic. It would place all/a very large number of commerce clause decisions in doubt. I am not sure I see even this Court as willing to do that. There’s also the question of duration of precedent, which Scalia seems to find important. Obviously that’s a lot longer with _Wickard_ than _Bowers_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 20, 2011, 5:06pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/77 "2011-01-20T17:06:22Z")
> [@villa](#): > > Very different practical effect, though, which means a very different approach from the Court. Overruling _Bowers_ changed almost nothing - it is a very coralled decision. While it is possible to argue the rationale behind _Lawrence_ had more broad reaching effects, the actual overturning of _Bowers_ has almost none (apart from being a very welcome end to discrimination against a significant group of the population). > > Overturning _Wickard_, on the other hand, would be legally speaking seismic. It would place all/a very large number of commerce clause decisions in doubt. I am not sure I see even this Court as willing to do that. > > There’s also the question of duration of precedent, which Scalia seems to find important. Obviously that’s a lot longer with _Wickard_ than _Bowers_. Both very valid points. And they are really what led me to conclude initially that constitutional challenges to this law would be dead in the water. I was wrong, though, and I suspect the solution will be to distinguish Wickard (regulating economic activity) from health care (regulating economic inactivity.) ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 20, 2011, 5:09pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/78 "2011-01-20T17:09:00Z")
I think you might be right. I think that is a horrible legal distinction to make, but it will allow them to make this as minimalist as possible. No one in the Court (I guess) is willing to strike down pretty much the entirety of Civil Rights legislation. See - this is what happens when one utterly dumbass decision (_The Slaughterhouse Cases_) is allowed to stand and people have to design their way around it. Things get more and more twisted and the law gets uglier and uglier! ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [January 20, 2011, 5:15pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/79 "2011-01-20T17:15:08Z")
> [@Bricker](#): > > This is a remarkably poor analysis. > > There’s no need to find an emanation of a penumbra to invalidate this legislation. The plain language of the Constitution suffices. > > What they would have to do is either implicitly ignore _stare decisis_. There’s nothing magical about _Wickard_. It’s just the settled caselaw. > > But then so was Bowers v Hardwick, and the Court in _Lawrence v Texas_ managed to convince themselves to overrule it. > > The Democrats in Congress did not, I’m sure, consider that this legislation might be constitutionally infirm. They relied on the existing precedent. > > Overruling (or distinguishing) Wickard would not be a bad thing. Well, seems to me you got a contradiction brewing there. If you say the “plain language of the Constitution suffices”, how can you then turn around and say “…The Democrats in Congress did not, I’m sure, consider that this legislation might be constitutionally infirm…”? Were they unaware of the “plain language of the Constitution”? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [January 20, 2011, 5:17pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/80 "2011-01-20T17:17:52Z")
> [@elucidator](#): > > Were they unaware of the “plain language of the Constitution”? They so often have been, so this shouldn’t surprise either of us. [Previous page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=3) [Next page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=5)