Well, at least going to court is a more mature approach than the nullification idea floating around the RW blogosphere this week. But does anybody really believe the bolded part?
As for the legal theory, this is completely unprecedented AFAIK. No landmark Supreme Court decision has ever been based on the Tenth Amendment, and I don’t expect this will be the first. As for the “tax on living” argument, aren’t all taxes taxes on living? E.g., everybody pays property tax, whether they own real estate or not. (If you rent, part of your rent goes to your landlord’s property tax; if you buy anything in a store, part of the price goes to the store’s landlord’s property tax.)
And . . . it begins. The term “activist judge” means a judge who makes law instead of applying the law. The ten AsG would apparently be asking a judge to overturn health care reform based on its violation of current law. They wouldn’t be asking the judge to create new law to apply to overturn health care reform. Bricker has done a shit-load of posts defining the concept of “activist judges” if you care to search and educate yourself.
The argument is that if you do not wish to buy car insurance you simply do not buy a car, but if you wish to avail yourself of the benefits of a car, you must have insurance.
Everyone has a body and wishes to avail themselves of the benefits of such, therefore it is incumbent upon everyone to purchase health insurance.
What’s the big deal? My family pays about $6,000/yr in premiums for employer subsidized health insurance that barely covers jack. The maximum tax penalty will be 2.5% of income for not carrying health insurance, which doesn’t come anywhere close to what we pay in annual premiums, even it is per person. Sounds to me like choosing to pay the penalty over choosing to pay the insurance would be a net gain. And since the insurance companies can’t deny me coverage when I need it, what’s to stop me from making this choice?
Either I’m missing something or self-centered ‘I can take care of myself, I don’t need no stinkin’ government handout’ people should be rejoicing.
No. Did you read the OP? They believe it is unconstitutional.
Just to clarify with a bit of an extreme example: Suppose Congress passed a law banning speech critical of health care. Would it be an act of judicial activism to overturn that law?
I wish I had better news, since I believe that from a public policy perspective the group of AGs has the correct idea.
Unfortunately, I don’t believe that they have the right idea about the constitution.
It’s true that from an originalist standpoint, this legislation crosses some pretty extreme boundaries. And if this were, say, 1930, I’d be right there with them.
But since 1930, the courts have consistently upheld expansive readings of Commerce Clause power, and we have now built a massive caselaw and regulatory framework on the proposition that the Commerce Clause means something pretty broad. In that modern context, I don’t see anything in this bill that is legitimately violative of Commerce Clause reach.
It’s constitutional. I don’t like it, I think it’s unwise in the extreme, but in my view, it’s constitutional.
The article in today’s San Jose Mercury News says that Congress took efforts to structure this as a tax for the purpose of ensuring it was constitutional. No more details than that, but do you understand what they mean? It’s unclear to me how this insurance mandate could be considered a “tax”.
In another thread, I just quoted Sonzinsky v. U.S. a 1937 Supreme Court case that stands for the proposition that as long as Congress has the power to enact a tax, the courts may not “Inquir[e] into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it,” because such inquiry is “beyond the competency of courts.”
Maybe the Tea Partiers should consider a little civil disobedience. Don’t buy health insurance, if you don’t want it, and see if you get hauled off to jail if you don’t pay the fine.
I guess it depends on your definition of “landmark.” There have been Supreme Court cases on the 10th Amendment from, say, 1920’s Missouri v. Holland to 1995’s Gonzales v. Raich.
Now if this bill were paid for using the money saved by housing soliders in downtown condos, THAT would be a pretty landmark Constitutional case.