The government can’t just tax you - it has to tax your income. Basically, the government can just charge you a tax for existing. That’s the crux of the problem here.
The health care law explicitly derives its justification for the individual mandate from the interstate commerce clause of the constitution, which gives the federal government the right to control economic activity that has effects that cross state lines. The specific objection here is that while the government may have the right to control interstate commerce, it doesn’t have the right to force you INTO commerce. There has never been a case where the federal government could compel a citizen to buy a service from someone or face a fine just for being a citizen.
The defense argument is that there is a long set of precedents that have given the government very wide latitude in interstate commerce regulation, including some things that really can’t plausibly be said to affect interstate commerce unless you really, really stretch the definition.
The argument of the plaintiffs is that if the interstate commerce clause can be used to compel a citizen to buy a product or face a fine even if that citizen isn’t engaging in commerce at all, then what exactly couldn’t the government justify under the ICC? It would seem to then mean that the federal government can pretty much compel anyone to do anything, for any reason. And since the constitution is supposed to set out specific limits for government action and most definitely not intended to be a blank check on power, the health care mandate should clearly not fall under the power given to the federal government.
So that’s really the debate - does the history of wide latitude given to the government under the interstate commerce clause go far enough to allow them to require every citizen to purchase health insurance or face a fine?
You can’t get around this by calling it a tax, because people aren’t taxed just for being adult citizens. If they were, it would be a poll or head tax, and I believe the 24th amendment made federal poll taxes unconstitutional.
Theoretically. But if they can regulate “interstate commerce” the way the Raich case says or that they can spend for anything that they deem to be in the “general welfare” of the country, what practical limitations are there on federal power?
Why, for example, is there a power to create post offices and post roads? Or raise an army? Or coin money? Surely, those substantially affects interstate commerce, so why the need for a superfluous grants of power?
They, along with a willing Supreme Court, have claimed powers not delegated and made the federal/state distinction one for Con Law students and professors to have a fun chat about, but it makes no difference otherwise.
Poll or head taxes for purposes of limiting the ability to vote are unconstitutional. You can impose a per-head tax if you want, as long as failure to pay does not disqualify you from voting.
The potentially unconstitutionality of the individual mandate has nothing to do with the 24th amendment.
One “sort-of not-really” an example of this principle is the requirement made to have a state issued ID, which usually involves paying a fee. This fee becomes a de facto head tax. It’s debatable whether it is a de jure tax, but even if it were, there’s no question that it would be legal, even under the 24th Amendment.
State-issued ID is not subject to the commerce clause. Can the federal government issue a mandatory national ID card and charge a fee for it without running afoul of the constitution?
Short answer yes, but it would face steep opposition. And not for reasons of the commerce clause but because there is an in-built American bias against it. We have a de facto national ID card system already.
An actual national ID was suggested in the aftermath of 9/11, but it never gained any traction. The current implementation is the Real ID act, which has each state enforce some minimum requirements for state IDs to be accepted by federal agencies. Basically, you could make it necessary to have a state issued ID that passes Real ID muster to board a plane, open a bank account, purchase a gun, or any number of other actions overseen by federal agencies.
So, we have a de facto national ID system, though the federal government vehemently denies it is a de jure national ID system. Opposition to it ranges from the Cato Institute to the ACLU, so opposition is certainly widespread.
As for potential constitutional challenges, the 24th Amendment or even the Commerce Clause aren’t even close to being challenges. The best ‘challenge’ so far has been an argument that it violates sovereignty of states’ rights under the 10th Amendment, and it’s not much of an argument.
Worse than that. The Tenth was ruled by SCOTUS to be “but a truism” in Darby.
It obviously needs repeating once again, to some folks: The interpretation of the Constitution that actually governs is the Supreme Court’s. Not yours.
Interesting example. In 1994, Congress passed a law forbidding state DMVs from disclosing personal information, such as addresses of famous people and the like. Naturally, my first thought in reading recently about the DPPA was “how could that possibly be constitutional?” (Federal restrictions on state highway laws usually must be accomplished through bribery, rather than mandate). Imagine my surprise to read the rather tortured reasoning in Reno v. Condon,528 U.S. 141 (2000), where a Rehnquist opinion found that drivers license information was an “article of interstate commerce” and that Congress could therefore tell the states what to do!
Can we please cut the discussion about Gingrichcare forcing people to buy insurance? It does no such thing. It gives people a choice of buying insurance, or paying a fee. You don’t like paying a fee? Fine, then, you can choose to buy insurance. But it’s your choice.
??? I thought it was called Romneycare. Oh, wait, that’s a *good *thing if it’s your friendly, neighborhood *state *government doing it, and an *evil *thing if it’s the jackbooted feds. There’s a good kind of government and an evil kind; I forgot.
It’s just a matter of degree. I can also “choose” to rob a bank and simply spend 20 years in prison.
I don’t like the abuse of our language. By implication a “choice” is a free one. I can choose Dunkin Donuts or Starbucks. If one of the options is hampered in some way by an external source, then it is not a free choice and shouldn’t be described as such.
Well, not exactly.
There is a ‘government’ that more people would be willing to let do something because they more readily see the results (local vs federal) Local governments are a whole lot more responsive than the federal one is…
This has been pointed out again and again and some still don’t get it.
I think that Romney definitely has a problem trying to make this razor-thin distinction. He has a 10th amendment argument against Obama’s plan, but he can’t possibly begin to question it on the merits.
The questions that should doom Romney on this matter are:
“Governor Romney, since you agree that the merits of President Obama’s health care plan are sound, wouldn’t your 10th amendment argument be better directed at federal programs that you believe are unsound on the merits? Why would you let something that you believe to be a good plan be confined to only one state when all of America could benefit from it? Is it simply to make an arguable point on the proper role of state-federal powers? Is that argument worth denying the people of 49 other states the benefits of the health care plan that you endorsed?”
I’m hearing this type of argument a lot now, but I certainly wasn’t hearing it when health care reform was actually being debated and eventually passed. The line then was that single-payer health care wasn’t happening, no way no how. The people arguing for that position, including members of Congress, slammed into a big brick wall.
Back then single-payer (or Medicare for all) was “too liberal”, and we had to accept this Republican-esque plan as a “compromise”, because it was the only way anything would pass. Now I’m hearing a lot of right-wing types argue that mandated health insurance is far worse than a national health care system would be. Where was this argument two years ago? Which one is actually “more liberal”?
If the Commerce Clause covers everything, then we don’t have a Constitution. Congress is all-powerful, and we may as well use the Bill of Rights for toilet paper.
An argument that a limitless Commerce Clause turns Congress into a super-legislature with general or plenary police power is viable and supportable. However:
(1) the States indisputably have plenary police power under their constitutions, and that doesn’t negate or read into oblivion the bill-of-rights provisions in the various State constitutions. :rolleyes:
(2) The powers listed in Article I, Sec. 8 of the U.S. Constitution are subject to the limitations in Art. I, Sec. 9 and to the Bill of Rights. That limitation doesn’t change because (arguably) one of the Art. I, Sec. 8 powers has been interpreted too broadly.
For example, Congress has the express power to “provide for the Punishment of counterfeiting the Securities and current Coin of the United States.” No broad interpretation required, it’s in the text. That doesn’t give Congress the power to make counterfeiting punishable by summary death without trial, because that would be contrary to the Fifth and Sixth Amendments.
To get more to the point re. the Commerce Clause, whether or not you think the Clause authorizes Federal legislation on, for instance, home mortgages, it wouldn’t authorize Congress to pass a law that one cannot get a mortgage if one is a member of the Communist Party (First Amendment), or that all mortgages must contain a clause authorizing the quartering of National Guard or Federal troops in the mortgaged premises (Third Amendment), or the like.
You realize that there are different roles for the states and for the federal government, don’t you? If Obama was Governor of Illinois and did it there, then you might have a point comparing the two. As it stands, you don’t.
