Not trying to start a GD about Obamacare. God knows we have enough of those. But a thought struck me as I was reading about the Solicitor General’s oral arguments.
As it stands now, health insurance does not cross state lines by Federal Law. That means that my Kaiser insurance in California has nothing to do with my Kaiser insurance in Colorado and that when I moved to Colorado, my Arizona BCBS insurance had to be cancelled and I had to buy from a Colorado company that may or may not be BCBS.
So under these conditions, how in the world can health insurance fall under the Interstate Commerce Clause. Whether or not I buy insurance has, by Federal Law, absolutely no impact on insurance for any person or company in any other state.
Note: I’m allowing that the law may e constitutional for other reasons and that this is specifically the role of the ICC in something that is not interstate in even a Wickard sense.
IANAL, but I would see very clear parallels to Wickard v Filburn. If there is a country-wide system of health care purchasing (like the country-wide limits on wheat production in 1942) then any individual’s not buying insurance impacts the costs for everyone else (just as Filburn’s not buying wheat but growing it for himself impacted the total system).
This is different from the arguments about the extent to which Congress has pushed the Congress clause - with full authorization from the Supreme Court in most cases. And it certainly can be argued - and probably will, though not before the Court - that in a global society like ours, absolutely nothing can be done that doesn’t affect everyone else. The Founders may not have anticipated such a world, but that’s exactly why they wrote the Constitution as a framework rather than a set of actual laws.
You may argue that this gives Congress too much power. You may be right. But legally, that is not a matter for the Court to decide. The Founders certainly expected Congress to have an unequal share of power, if only toward the presidency and judiciary, despite checks and balances, and they certainly tilted power toward the federal level after their experiences with the Articles of Confederation.
This leaves open the question of whether that means Congress can do anything and everything. It sure does. I’m not qualified to answer that question. That’s why cases come to the Supreme Court: somebody has to draw lines across the fuzzy boundaries.
However, when the decision comes down, my expectation is that it will not revolve around the question of whether the Commerce Clause is applicable but whether this application is legitimate. That’s hair-splitting but it narrows the issue and steps away from deciding the unappetizing undecidable.
But my point is that by Federal Law the is no country-wide system of health-care purchasing because unlike wheat, people cannot buy insurance from a company in another state, thus Wickard (and through it the ICC) analogy doesn’t apply.
If you are not covered, the hospital (and so insured people) pay for your coverage when you really need care and don’t have enough money. Medicare (Federal Government) is the biggest contributor in that regard.
It’s not like broccoli or cell phones - if you show up at a hospital with a broken arm or gunshot wound, they will treat you - then someone has to pay the bill. There is a valid risk EVERYONE needs coverage…
Whether this or a thousand other actions really fall into ICC territory - well the founding fathers probably never anticipated things like pollution so big it’s threatening on a continental scale, or the need for the feds to subsidize education, or regulate the amount of any crop harvested country-wide, or rules to allow your horseless carriage to travel freely in all states… The ICC clause has been stretched to cover a lot of things that allow for a properly functioning society.
Many health care providers do cross state lines (everything from hospital chains to pharmacies to prescription benefit maangement companies) so, for example, if I present my injured and uninsured self at an HCA Healthcarefacility, the cost of my treatment has to be absorbed by hospitals in 20 different states (and the U.K., just for good measure.)
And, as MannyL noted, my insurance is honored by providers in other states.
Not only that, but the cost of treatment also impacts Medicare, (federally funded) Medicaid (funded by states and the feds) and probably a whole passel of things I can’t even imagine.
Leaving every other argument aside, I think there’s a compelling interest under the interstate commerce clause.
The fact that there’s a federal law already regulating health insurance (even if it’s forbidding crossing state lines) and that no one is challenging that law indicates that the federal government does have the power to pass laws regulating health insurance.
It’s unfortunate that Americans have gotten so sloppy with their understanding of civics and federalism. Our Constitution set up a national government of limited, enumerated powers. The power to compel people to do something or not do something, called the police power, is not one of the powers given to Congress in Article I, Section Eight. Therefore, for it to be constitutional for Congress to mandate purchase of insurance, the scheme must fall within its power to regulate interstate commerce. Never before has the power to regulate commerce already occurring been extended to the power to require commerce to take place. Thus the challenge and the pointed questions yesterday from the justices.
Blanket statements about the country are hard to sustain. It’s true that the McCarran-Ferguson Act gives states the right to enforce health care within its boundaries. Even therein lies a but… But large employers who self-ensure can do so across state lines and are covered by the federal ERISA Law. To me, that puts the federal government squarely into the regulation of health insurance. And states have not been working as 50 separate entities in health care coverage for years, if you read that site.
I’m not going to try to analyze the similarities or differences between the bills. It seems clear to me, though, that applying national standards to national populations is the long-standing norm.
Hmmm… The federal government can force you to pay income tax.
They can add a tax to that income tax, that everyone must pay unless they can show they have purchased qualifying health care insurance, which would exempt them from that tax.
The AG spend the first day painfully trying to call the situation a tax, not a penalty.
So can the feds create an “I have no health insurance” tax? That is the key question.
Well, they collect those income taxes which are used to pay for medicare, medicaid, etc. They regulate health standards in a number of ways. (Drug licensing comes to mind). The money medicare gives to hospitals ends up paying for those uninisured indirectly, since if someone with no money comes into the hospital, the hospital resolves that expense by overbilling all the rest of the patients, including Medicare.
So I guess the question is, if this law is struck down, what specifically is not allowed? Taxing all citizens? Granting exemptions to some tax based on specific conditions? If that specific condition is a qualifying health care plan, that is not allowed to be considered?
(You get a tax break if you, an individual, have a valid mortgage. how is that different? real estate can’t travel across state boundaries.)
From what I understand, both sides spent all of Monday arguing that this penalty was not a tax. In fact the court had to bring in an outside advocate just to make that case - one which everybody has apparently agreed to ignore.
Your entire argument is invalid, from what I read.
Exapno Mapcase has corrected you already concerning the AG’s argument. I wish to note and correct other points in your post. The federal income tax is constitutional only because it is in the Constitution. The federal government did pass legislation for an income tax prior to the amendment, but it was struck down by SCOTUS. And medicare is not paid through income taxes but through FICA, in addition to which, an additional premium is necessary if you wish Part B coverage. Medicaid is funded both by the state and the federal government.
So are you saying that if they ***had ***called it an income tax provision that rebates if you have sufficient coverage, it would be legal? Potayto - potahto?
Maybe Obama wants a negative decision he can campaign against? Win-win.