# Why is health care reform unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [January 17, 2012, 7:16pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815 "2012-01-17T19:16:19Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [January 17, 2012, 11:54pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/21 "2012-01-17T23:54:52Z")
> [@Smapti](#): > > If it looks like a tax, functions like a tax, and is collected as a tax, what constitutional weight does Obama saying “It’s not a tax” carry? It’s sovereign citizen-style government-by-incantation. There’s a magic formula that you use to create a tax, and Obama didn’t use it, so it’s not a tax. QED. ---
**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 18, 2012, 2:06am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/22 "2012-01-18T02:06:20Z")
I think there is a significant constitutional problem, and I cited the supporting cases [in this thread.](http://boards.straightdope.com/sdmb/showthread.php?t=593015) Here is [one of our previous discussions](http://boards.straightdope.com/sdmb/showthread.php?t=620119) of the constitutionality of the individual mandate and [here is another.](http://boards.straightdope.com/sdmb/showthread.php?t=593809) However, smart people worked on this legislation, and I don’t think the Supreme Court decision will be along easy-to-predict ideological grounds. In November, I listened to a Commonwealth Club broadcast [(podcast here)](http://www.commonwealthclub.org/events/2011-10-26/laurence-tribe-and-roger-pilon-constitutionality-president-obamas-health-care-refo) where Harvard Law Prof. Laurence Tribe laid out a pretty reasonable argument. Finally, it’s important to remember that the problem is one of federalism, so discussions of compulsory education or auto insurance are utterly irrelevant. State legislatures have many powers that Congress does not. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 18, 2012, 2:46am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/23 "2012-01-18T02:46:41Z")
> [@Smapti](#): > > If it looks like a tax, functions like a tax, and is collected as a tax, what constitutional weight does Obama saying “It’s not a tax” carry? None, because Obama is not a legislator who voted for the Act. Similar comments from legislators who did could carry some weight, in theory; the courts review the legislative record to determine what they were thinking at the time any given piece of legislation was passed. However, if SCOTUS finds that Congress could have passed the Act under some authority it possesses, it won’t matter much if they passed it under some other authority. One of the rules of statutory construction from a constitutional point of view is that the legislation is construed to make it constitutional where possible. In other words, if Congress could pass PPACA under its Commerce Clause authority, but instead relied on (say) its remedial power under the 14th Amendment, it won’t matter. [QUOTE=Shodan] The Constitution says that whatever powers are not explicitly granted to Congress do not belong to Congress. [/QUOTE] It’s really not hard to find a copy of the Constitution, so it shouldn’t be that hard to cite it accurately. The Constitution says: > [@](#): > > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The word “specific” is not appear in the text, and the fairly obvious truism that Congress must have the authority to implement legislation in accord with its constitutional mandates is [pretty well settled](http://en.wikipedia.org/wiki/McCulloch_v._Maryland). ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [January 18, 2012, 3:39am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/24 "2012-01-18T03:39:10Z")
Because it was a political accomplishment of a democratic president. They don’t even think his presidency is constitutional. The majority of suits against the ACA were thrown out of court. But the right kept filing suit until it found a judge willing to give them the verdict they wanted. It’d be awesome if criminal justice worked that way, just keep having trial after trial until you get the result you want. ---
**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 18, 2012, 4:06am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/25 "2012-01-18T04:06:06Z")
> [@Wesley\_Clark](#): > > Because it was a political accomplishment of a democratic president. They don’t even think his presidency is constitutional. _They_? I don’t think it’s constitutional, but I voted for Obama, and I think his presidency is constitutional. I will note that I do think that the SCOTUS will find it constitutional. > [@](#): > > The majority of suits against the ACA were thrown out of court. But the right kept filing suit until it found a judge willing to give them the verdict they wanted. Really? You can show that the first court case finding the bill (or parts of it) unconstitutional was not initiated until after the first ruling affirmed the constitutionality of the bill? I’d _really_ like to see that! ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [January 18, 2012, 4:09am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/26 "2012-01-18T04:09:16Z")
> [@John\_Mace](#): > > _They_? I don’t think it’s constitutional, but I voted for Obama, and I think his presidency is constitutional. I will note that I do think that the SCOTUS will find it constitutional. I would think \*they, \*in this instance, would be the vast majority of people who think the health care law is unconstitutional who aren’t you. Just because you’re a reasonable duck, doesn’t mean the flock isn’t infected with the brain worms. ---
**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 18, 2012, 4:16am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/27 "2012-01-18T04:16:27Z")
> [@Lobohan](#): > > I would think \*they, \*in this instance, would be the vast majority of people who think the health care law is unconstitutional who aren’t you. > > Just because you’re a reasonable duck, doesn’t mean the flock isn’t infected with the brain worms. There are plenty of people who hold principled positions that the HCRB is unconstitutional, including some federal judges. Reducing this issue to a partisan snipe does no service to the debate. If it were as simple as that, we could move this thread to GQ and be done with it. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [January 18, 2012, 4:23am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/28 "2012-01-18T04:23:18Z")
> [@John\_Mace](#): > > There are plenty of people who hold principled positions that the HCRB is unconstitutional, including some federal judges. Reducing this issue to a partisan snipe does no service to the debate. If it were as simple as that, we could move this thread to GQ and be done with it. I don’t think it’s perfectly simple. However, I do know that the government can tax people and can provide tax incentives for actions. All the mandate does is raise everyone’s taxes by 6 hundred something dollars and lowers them if you have health insurance. That may be unconstitutional, but it doesn’t really seem like it would be. Now, there are, certainly some people who are against this on principle. But a large amount of them are hooples who are shouting like a pict war-band for the Usurper’s head. And certainly most state attorneys are bringing their lawsuits to placate their base’s bloodlust. ---
**Author:** ![Sitnam](https://avatars.discourse-cdn.com/v4/letter/s/6a8cbe/32.png) [@Sitnam](https://boards.straightdope.com/u/Sitnam)\ **Post date:** [January 18, 2012, 4:56am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/29 "2012-01-18T04:56:30Z")
Thanks **Mr Downtown** , if it matters I read what you wrote. ---
**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 18, 2012, 4:59am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/30 "2012-01-18T04:59:35Z")
> [@Lobohan](#): > > I don’t think it’s perfectly simple. However, I do know that the government can tax people and can provide tax incentives for actions. > > All the mandate does is raise everyone’s taxes by 6 hundred something dollars and lowers them if you have health insurance. That may be unconstitutional, but it doesn’t really seem like it would be. > > Now, there are, certainly some people who are against this on principle. But a large amount of them are hooples who are shouting like a pict war-band for the Usurper’s head. And certainly most state attorneys are bringing their lawsuits to placate their base’s bloodlust. Even if that were true, and I don’t accept that it is, it adds nothing to the debate. But, since the OP seems to have no interest in this debate, and we’ve already done it multiple times, at this point I can’t see any point in continuing this _Groundhog Day_ discussion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 18, 2012, 3:50pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/31 "2012-01-18T15:50:19Z")
> [@Lobohan](#): > > I don’t think it’s perfectly simple. However, I do know that the government can tax people and can provide tax incentives for actions. > > All the mandate does is raise everyone’s taxes by 6 hundred something dollars and lowers them if you have health insurance. That may be unconstitutional, but it doesn’t really seem like it would be. > > Now, there are, certainly some people who are against this on principle. But a large amount of them are hooples who are shouting like a pict war-band for the Usurper’s head. And certainly most state attorneys are bringing their lawsuits to placate their base’s bloodlust. I am absolutely against the plan on principle; I think it’s a poor, an unwise, use of governmental power. But I believe it’s constitutional, because the issue was settled by _Wickward v. Filburn_. Sadly. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [January 18, 2012, 4:03pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/32 "2012-01-18T16:03:11Z")
> [@Bricker](#): > > I am absolutely against the plan on principle; I think it’s a poor, an unwise, use of governmental power. > > But I believe it’s constitutional, because the issue was settled by _Wickward v. Filburn_. > > Sadly. On topic: You’re against it on principle, but you believe it’s constitutional. We were talking about those who think it’s unconstitutional. This is a tangent, but can I ask: If there were evidence to your satisfaction that a government healthcare system of some kind (leave out the details for this purpose) was cheaper for individuals, cheaper for the country and provided better care for the vast majority of the populace and no reduction of care for the very rich who get the best currently, would you still be against it? Consider in your answer that being against it, if those things were true, would damn the US to being hindered in economic competition against other first-world democracies who have a government healthcare system. I guess, basically what I’m asking is, are you willing to have the US suffer economically and from greater levels of illness (and early death) to support your ideological opposition to a government healthcare system? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 18, 2012, 4:30pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/33 "2012-01-18T16:30:04Z")
> [@Lobohan](#): > > On topic: You’re against it on principle, but you believe it’s constitutional. We were talking about those who think it’s unconstitutional. > This is a tangent, but can I ask: > > If there were evidence to your satisfaction that a government healthcare system of some kind (leave out the details for this purpose) was cheaper for individuals, cheaper for the country and provided better care for the vast majority of the populace and no reduction of care for the very rich who get the best currently, would you still be against it? > > Consider in your answer that being against it, if those things were true, would damn the US to being hindered in economic competition against other first-world democracies who have a government healthcare system. > > I guess, basically what I’m asking is, are you willing to have the US suffer economically and from greater levels of illness (and early death) to support your ideological opposition to a government healthcare system? On topic: I weighed in to remind the thread that it’s possible to hold a principled position against the idea, but still decide the constitutional question in favor of health care reform, just as it’s possible to hold a principled position against health care reform and also believe it’s not constitutional – for example, one might say, “Yes, _Wickard_ itself should be overturned.” (As it happens, I would have agreed with that statement in 1952, but in 2012 we’ve built too much case law and infrastructure around Wickard to discard it). As to your aside: yes, there would come a point where, despite my ideological opposition, the advantages were so great that I would be in favor of some kind of government health care system. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [January 18, 2012, 4:35pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/34 "2012-01-18T16:35:34Z")
> [@Bricker](#): > > On topic: I weighed in to remind the thread that it’s possible to hold a principled position against the idea, but still decide the constitutional question in favor of health care reform, just as it’s possible to hold a principled position against health care reform and also believe it’s not constitutional – for example, one might say, “Yes, _Wickard_ itself should be overturned.” (As it happens, I would have agreed with that statement in 1952, but in 2012 we’ve built too much case law and infrastructure around Wickard to discard it). Fair enough. > [@](#): > > As to your aside: yes, there would come a point where, despite my ideological opposition, the advantages were so great that I would be in favor of some kind of government health care system. Thanks. I was just wondering.[/tangent] ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [January 18, 2012, 4:42pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/35 "2012-01-18T16:42:42Z")
> [@Shodan](#): > > Right, and waterboarding doesn’t actually force anyone to talk, so no compulsion is involved. What does waterboarding have to do with anything? The problem with waterboarding has nothing to do with compulsion. The problem is that it’s _torture_. The key element of torture is causing excruciating suffering; whether it’s compelling someone to do anything is irrelevant. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 18, 2012, 4:48pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/36 "2012-01-18T16:48:48Z")
> [@Bricker](#): > > …one might say, “Yes, _Wickard_ itself should be overturned.” (As it happens, I would have agreed with that statement in 1952, but in 2012 we’ve built too much case law and infrastructure around Wickard to discard it). That’s kind of a curious attitude. If the decision was wrong, it was wrong. When the issue is whether Congress has the power to do something, surely it’s immaterial how much has been done in reliance on the decision. That’s not to say I think Wickard was wrongly decided; I agree fully with the reasoning, though not with the result in that particular case. It’s just that if I _did_ think it was wrongly decided, I wouldn’t care if fixing the error meant invalidating scads of federal legislation because none of it would have been within the ambit of the federal government in the first place. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 18, 2012, 4:58pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/37 "2012-01-18T16:58:16Z")
Well, it’s certainly a “conservative” attitude in the spirit of respect for institutions and dislike of dramatic change, preferring an incremental approach. The Supreme Court is (and should be) a conservative institution in this way. I tend to agree that sweeping away 50 years of case law is less preferable to an incremental limiting of the scope of the Commerce Clause (if one preferred limiting it - I personally do not). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 18, 2012, 5:53pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/38 "2012-01-18T17:53:47Z")
There’s not really an incremental way to overturn Wickard, though. If it’s overturned, SCOTUS goes back to determining on a case-by-case basis which activities are inherently local. It could, of course, determine that all or most of the activities the feds have regulated under Wickard _are_ local, but it couldn’t do it all at once. ---
**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 18, 2012, 5:56pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/39 "2012-01-18T17:56:16Z")
Is it impossible to determine this law to be unconstitutional and not overturn _Wickard_? And by possible, I mean realistically possible in a way that you could get at least 5 justices to agree to. I suspect Thomas would have no problem overturning _Wickard_. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 18, 2012, 6:00pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/40 "2012-01-18T18:00:05Z")
Thomas’ dissent in Gonzales v. Raich made it fairly clear that he would. I suppose SCOTUS could determine that people without health insurance do not have a substantial economic effect on interstate commerce, but… that would be silly. [Previous page](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815.md?page=1) [Next page](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815.md?page=3)