# 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:** 3
**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, 6:02pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/41 "2012-01-18T18:02:26Z")
I think it’s possible to keep _Wickard_ if you decide to make a distinction between non-economic activity (growing wheat for personal consumption) and economic non-activity (not buying health insurance). I think that is a stretch, since it is rather trivial to show that this “non-activity” is in fact activity as soon as you get in a car crash or have a heart attack at the mall. But that is one way (I’m sure there are others) to invalidate the individual mandate while still keeping _Wickard_. ---
**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 19, 2012, 2:03am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/42 "2012-01-19T02:03:19Z")
> [@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. > > 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! There is overlap between those who think Obama stole the election and/or was born in Kenya and has a fake ID and those who think the health care bill is unconstitutional. Not a complete overlap, but a good number of his critics just hate him and come up with the reasons later. The kinds of people who think he is the anti-christ, or is a Kenyan with a fake ID, or an avowed marxist, or someone who wants to take all the guns away aren’t forming opinions on the health care law based on a comprehension of legal precedent. The fact that I live in the rural part of a red state gives me a pretty pessimistic view of Obama’s critics. I’m sure there are tons of professional criticisms of the law, but I don’t get those where I live. [http://www.justice.gov/healthcare/](http://www.justice.gov/healthcare/) > **[Scoreboard: Tracking Health Law Court Challenges - KFF Health News](https://kffhealthnews.org/news/health-reform-law-court-case-status/)** > > Kaiser Health News tracks the status of more than two dozen cases as they work their way through the federal courts. 9 lawsuits dismissed, 6 found it constitutional. 3 found it unconstitutional. Of those 3, one was overturned in appeals court. I’m not a lawyer, but it seems the strategy is to keep filing suit after suit until you can take it to the supreme court and hope Alito, Thomas, Scalia and Roberts (and one more justice) will overturn it. ---
**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 19, 2012, 2:16am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/43 "2012-01-19T02:16:21Z")
That’s a bit unfair. Most of the litigants are discrete entities: the State of Florida, the US Citizens’ Association, the Thomas More Law Center, and so on. ---
**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 19, 2012, 2:16am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/44 "2012-01-19T02:16:28Z")
> [@Wesley\_Clark](#): > > There is overlap between those who think Obama stole the election and/or was born in Kenya and has a fake ID and those who think the health care bill is unconstitutional. Not a complete overlap, but a good number of his critics just hate him and come up with the reasons later. The kinds of people who think he is the anti-christ, or is a Kenyan with a fake ID, or an avowed marxist, or someone who wants to take all the guns away aren’t forming opinions on the health care law based on a comprehension of legal precedent. The fact that I live in the rural part of a red state gives me a pretty pessimistic view of Obama’s critics. I’m sure there are tons of professional criticisms of the law, but I don’t get those where I live. > > [http://www.justice.gov/healthcare/](http://www.justice.gov/healthcare/) > > [Scoreboard: Tracking Health Law Court Challenges - KFF Health News](http://www.kaiserhealthnews.org/Stories/2011/March/02/health-reform-law-court-case-status.aspx) > > 9 lawsuits dismissed, 6 found it constitutional. 3 found it unconstitutional. Of those 3, one was overturned in appeals court. > > I’m not a lawyer, but it seems the strategy is to keep filing suit after suit until you can take it to the supreme court and hope Alito, Thomas, Scalia and Roberts (and one more justice) will overturn it. I’ll take that as a no, you can’t show that the law suits were filed after any ruling that the bill was constitutional. And frankly, I have no interest in your theories that Republicans are against the HCRB because Obama is black or that he’s not really the legit president. That’s nonsense. The same folks worked their butts off to make sure Clinton’s HCRB was DOA, and they would have done the same if this bill had been passed under president Whitey McWhite (D). ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [January 19, 2012, 3:00am UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/45 "2012-01-19T03:00:01Z")
> [@John\_Mace](#): > > president Whitey McWhite (D). I heard he was really born in Denmark. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 3:31pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/46 "2012-01-19T15:31:50Z")
> [@Wesley\_Clark](#): > > 9 lawsuits dismissed, 6 found it constitutional. 3 found it unconstitutional. Of those 3, one was overturned in appeals court. > > I’m not a lawyer, but it seems the strategy is to keep filing suit after suit until you can take it to the supreme court and hope Alito, Thomas, Scalia and Roberts (and one more justice) will overturn it. Your link is out-of-date. For example, it says of _Liberty University v. Geithner_, a case that upheld the constitutionality of the Act, “An appeal is currently pending before the 4th Circuit Court of Appeals.” In fact, the 4th Circuit, by published opinion, vacated and remanded that finding. (No. 10-234) And if a lawsuit is dismissed for lack of standing, why do you infer (if you do) that this is somehow a negative judgement on the merits? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 3:38pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/47 "2012-01-19T15:38:42Z")
> [@Jas09](#): > > I think it’s possible to keep _Wickard_ if you decide to make a distinction between non-economic activity (growing wheat for personal consumption) and economic non-activity (not buying health insurance). > > I think that is a stretch, since it is rather trivial to show that this “non-activity” is in fact activity as soon as you get in a car crash or have a heart attack at the mall. > > But that is one way (I’m sure there are others) to invalidate the individual mandate while still keeping _Wickard_. You say _Wickard_ was non-economic activity, growing wheat for personal consumption. But the Court in Wickard found that Congress’ power was triggered by the fact that because of the wheat grown for personal consumption, Filburn would not have purchased wheat from anyone else, and THIS fact affected interstate commerce. So Filburn’s " non-economic activity" was in fact economic non-activity (not buying interstate wheat). It’s a specious distinction.Almost anything can be construed as “non-” if you simply phrase it the right way. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [January 19, 2012, 3:43pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/48 "2012-01-19T15:43:47Z")
I agree that it’s specious. But I’m not sure I can see any other way for Scalia to twist himself out of what he wrote in _Raich_. Do you? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [January 19, 2012, 4:18pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/49 "2012-01-19T16:18:07Z")
> [@Shodan](#): > > So you would be OK with the government doing something un-Constitutional providing it only cost you $100 a month? > > Regards, > Shodan I’m not sure where I say that. I was just pointing out how silly you were being. Torture indeed. I happen to think that the individual mandate is constitutional and that single payer health care would be even moreso. > [@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. Yeah but you probably don’t think medicare is constitutional either. Good luck with that. > [@Lobohan](#): > > Just because you’re a reasonable duck, doesn’t mean the flock isn’t infected with the brain worms. Honest, pleasant and well mannered are not the same thing as reasonable. IIRC John Mace is a tenth amendment sorta guy. > [@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 can point to several conservative republican appointed judges that think HCRB is constitutional. Can you point to a single liberal Democrat appointed judge that thinks it is unconstitutional? You think these lawsuits were brought in random jurisdictions that represent a cross section of the judiciiary or do you think there might have beena little bit of forum shopping? Even winning half your cases bodes ill for a concerted nationwide effort. > [@Bricker](#): > > 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. How great would they have to be? I mean aren’t the examples of cost savings presented by virtually every other industrialized country in the world evidence of great advantage? > [@tim314](#): > > 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. OT but getting information is hardly irrelevant to waterboarding. You may not like torture but saying its not an attempt to get information is even more wrong than saying it doesn’t work. > [@Really\_Not\_All\_That\_Bright](#): > > That’s a bit unfair. Most of the litigants are discrete entities: the State of Florida, the US Citizens’ Association, the Thomas More Law Center, and so on. Yeah and they talk to each other. They were cherrypicking favorable forums across the country and they still ended up with a pretty poor batting average. > [@Jas09](#): > > I agree that it’s specious. But I’m not sure I can see any other way for Scalia to twist himself out of what he wrote in _Raich_. Do you? Scalia can be very principled when he is writing a dissenting opinion. He gets a little more squirrelly when writing a decision or a concurring opinion. ---
**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 19, 2012, 5:28pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/50 "2012-01-19T17:28:05Z")
> [@Damuri\_Ajashi](#): > > I can point to several conservative republican appointed judges that think HCRB is constitutional. Can you point to a single liberal Democrat appointed judge that thinks it is unconstitutional? Why does that matter? Republican appointed judges have the same authority as those appointed by Democrats. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 6:06pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/51 "2012-01-19T18:06:28Z")
> [@Damuri\_Ajashi](#): > > I can point to several conservative republican appointed judges that think HCRB is constitutional. Can you point to a single liberal Democrat appointed judge that thinks it is unconstitutional? I guess that means there are a number of Republican-appointed judges who can transcend their ideological biases and fairly consider an issue, but no Democratic appointed judge are able or willing to. ---
**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 19, 2012, 6:29pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/52 "2012-01-19T18:29:57Z")
> [@Bricker](#): > > I guess that means there are a number of Republican-appointed judges who can transcend their ideological biases and fairly consider an issue, but no Democratic appointed judge are able or willing to. Or, that Democratic judges aren’t ideologically calling foul where there is none. The fact that actual conservative judges find this constitutional, is better evidence that the right is trumping up outrage over nothing, than Democrats are defending something unconstitutional in lockstep. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [January 19, 2012, 7:06pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/53 "2012-01-19T19:06:41Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Why does that matter? Republican appointed judges have the same authority as those appointed by Democrats. Of course but I think the fact that you are only getting defections from one side should tell you something about the merits. > [@Bricker](#): > > I guess that means there are a number of Republican-appointed judges who can transcend their ideological biases and fairly consider an issue, but no Democratic appointed judge are able or willing to. Or it says something about the merits. If you were a judge which way would you rule? I was under the impression that you would feel compelled to rule the individual mandate constitutional. I have no doubt that if there was a bill outlawing third trimester abortions except in the cases outlined in Roe v Wade and it was challenged in cherrypicked fora across the country, you would see unanimity among the Republican judges supporting the law as well as some democratic judges supporting the law because the law would probably be constitutional. I’m not saying that democratic judges are any less flawed than republican judges. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 7:36pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/54 "2012-01-19T19:36:00Z")
> [@Lobohan](#): > > Or, that Democratic judges aren’t ideologically calling foul where there is none. > > The fact that actual conservative judges find this constitutional, is better evidence that the right is trumping up outrage over nothing, than Democrats are defending something unconstitutional in lockstep. Actually, there’s a third option that’s even better: this is at least a somewhat close question. And since Republicans tend to appoint judges with a particular judicial philosophy, as do Democrats, each set is likely being true to their principles in reaching a decision. A “living constitutionalist” will almost certainly agree that the Act is constitutional, because the words of the constitutional are of almost secondary important to the general intent and spirit. A textualist will find the Act more problematic, so the split comes down to how much weight to accord precedent. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 7:40pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/55 "2012-01-19T19:40:30Z")
> [@Damuri\_Ajashi](#): > > Of course but I think the fact that you are only getting defections from one side should tell you something about the merits. > > Or it says something about the merits. If you were a judge which way would you rule? I was under the impression that you would feel compelled to rule the individual mandate constitutional. Yes, I would, because I feel that _Wickward_ controls. So why wouldn’t I vote to overturn _Wickward_? I certainly feel it was wrongly decided at the time. The answer is that above all, the legal system should offer stability and predictability of outcome. We have built a giant bulwark of decisional and regulatory law on the foundation of Wickard, and overturning it now would be for the legislators, not the courts. The courts should not choose to build more layers on the structure, to be sure, but this is not a new layer, but a straightforward application of the precise principle enunciated in Wickard. As a senator, I’d vote against the bill; as the president, I’d veto it. But as a judge, I would find it constitutional, and the most I’d do is use my opinion to share how poor an idea I thought it was. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 19, 2012, 7:46pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/56 "2012-01-19T19:46:16Z")
> [@Bricker](#): > > Yes, I would, because I feel that _Wickward_ controls. > > So why wouldn’t I vote to overturn _Wickward_? I certainly feel it was wrongly decided at the time. > > The answer is that above all, the legal system should offer stability and predictability of outcome. We have built a giant bulwark of decisional and regulatory law on the foundation of Wickard, and overturning it now would be for the legislators, not the courts. The courts should not choose to build more layers on the structure, to be sure, but this is not a new layer, but a straightforward application of the precise principle enunciated in Wickard. So _Brown_ should not have been used to overturn _Plessy_ based on all of the law based on “seperate but equal”? ---
**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 19, 2012, 8:12pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/57 "2012-01-19T20:12:18Z")
> [@Bricker](#): > > Yes, I would, because I feel that _Wickward_ controls. > > So why wouldn’t I vote to overturn _Wickward_? I certainly feel it was wrongly decided at the time. > > The answer is that above all, the legal system should offer stability and predictability of outcome. Above all? Really? Of all the things the legal system should do, none is more important that stability and predictability? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 8:12pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/58 "2012-01-19T20:12:25Z")
> [@Saint\_Cad](#): > > So _Brown_ should not have been used to overturn _Plessy_ based on all of the law based on “seperate but equal”? No, there I would have flouted precedent. The difference is that Plessy was a decision that was clearly and unambiguously wrong, in that it ignored the existence and history surrounding the Fourteenth Amendment. Wickard was wrong, but not unambiguously so. Regulating interstate commerce does, in fact, allow you to regulate activities that affect interstate commerce – it’s all in where you draw the line. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2012, 8:17pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/59 "2012-01-19T20:17:02Z")
> [@John\_Mace](#): > > Above all? Really? Of all the things the legal system should do, none is more important that stability and predictability? Yes. I hear you muttering, “What about justice?” But in my view, justice is part and parcel of that guarantee of predictability and stability – that is, if two similarly situated parties are treated differently by the courts, then, almost by definition at least one has not received the most just outcome. ---
**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 19, 2012, 8:21pm UTC](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815/60 "2012-01-19T20:21:52Z")
> [@Bricker](#): > > Yes. > > I hear you muttering, “What about justice?” You need to adjust your hearing aid. My take would be that it a system of laws and not men. Now, a consequence of that would be stability and predictability, but not the other way around. [Previous page](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815.md?page=2) [Next page](https://boards.straightdope.com/t/why-is-health-care-reform-unconstitutional/609815.md?page=4)