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June 06, 2012

Comments

Like the filibuster, this is a technique which is worth having for a very small number of special circumstances. And one which, when abused by indiscriminate use, can cause a mess.

As for the courts, I suspect that a non-severability clause would get routinely ignored when reaching a decision. Courts generally get asked to decide constitutionality of specific bits of a law. If that particular bit is unconstitutional, the fact that so finding will do other damage is irrelevant. (C.f. the individual mandate, which is required to make the parts on preexisting conditions viable.) After all, if Congress cares about the rest, they can pass it again without the offending part.

The main constraint a non-severability clause might have is restraining those who might contest constitutionality in the first place. And I doubt that it would be particularly effective there either. At most, it would reduce the numbers of those joining the suit.

Consider this thought experiment. Someone concerned about gay marriage writes a bill to legalize it. In order to get sufficient support, he inserts a section repealing any and all domestic partnership laws and makes them nonseverable. (Which is something anyone really concerned about supporting the institution of marriage should support.)

The bill becomes law. Would someone who likes domestic partnerships sue to get them back, even though it would also strike down gay marriage? Entirely possible. After all, the majority of domestic partnerships are heterosexual couple who just want to avoid the responsibilities that come with marriage. Gay rights groups would stay far away, even if they otherwise might dislike losing the option. But he suit would probably still happen.

I'm no lawyer, but the logic of the proposition seems suspect. If the SCOTUS can strike a particular provision within a piece of legislation, it can first strike the the provision that doesn't allow individual provisions to be struck, thereby allowing it to strike any other provision. What recourse would either of the other branches have if the court did that? The whole thing seems very eighth grade to me (including my response, but look what I had to work with).

I'm not sure the Supreme Court would go along, but it doesn't even seem a good idea to play the game at all. And it certainly doesn't seem worth raising over the individual mandate, a small part in a large bill, with all sorts of other moving parts. The individual mandate covers a problem in theory, but the practice of adverse selection along those lines is much less troubling than advertised (people who have much of a choice apparently don't like to go without coverage). So if it is a system threatening problem in the future, we can deal with it then. Coming up with system destroying work arounds isn't needed.

HSH, yes the court could strike down the non-severability clause. But on what grounds?

It isn't obvious that the Constitution forbids Congress for deciding that certain things are so dependent on each other that they must stand or fall together. which is all the non-severability clause would mean. Now it's possible to abuse it, to make unrelated stuff non-severable. But the Court ends to defer to Congress on what they feel is or is not linked.

But the Court ends to defer to Congress on what they feel is or is not linked.

To the extent that they do, it isn't based on non-severability clauses, since this is a new proposition. I think it's one thing for the court to defer as it sees fit, and it's another for the court to be forced to do so by the very legislation under consideration.

I think the court could make the argument that the very idea of non-severability takes so much discretion away from the court that it is unconstitutional. What would prevent congress from inserting non-severability clauses into every piece of legislation if such clauses were not able to be stricken? That would radically change how the court operates. And it would be a monumental power grab by congress (and I guess the executive branch as well).

I think the whole idea is goofy, but I could be wrong.

I suspect that the Court would just go along finding laws unconstitutional regardless.

A parallel:
Congress [patient]: "It hurts when I do this!"
Court [doctor]: "So don't do that."

If Congress makes that bed, they have no complaint if they get to lie in it.

I guess I won't get too worried about this unless someone actually tries it.

The individual mandate covers a problem in theory, but the practice of adverse selection along those lines is much less troubling than advertised (people who have much of a choice apparently don't like to go without coverage).

Can you expand on this? If insurance companies have to offer insurance to all comers at the same price, why should healthy people pay lots of money for insurance when they can just wait until they get sick? Especially younger healthy people....

Moreover, every healthcare economist I've read thinks this is a serious problem in practice. The insurance industry does as well. The CBO does as well. Are there any experts you can point to who support your claim that this isn't a serious problem?

"If insurance companies have to offer insurance to all comers at the same price, why should healthy people pay lots of money for insurance when they can just wait until they get sick?"

Because it turns out that most people don't want to deal with the hassle of suddenly needing immediate care and not being immediately covered. I can't find the cite to the above at the moment, but it can be suggested by comparing New York and Massachusetts: New York had community rating and guaranteed issue, while Massachusetts had community rating, guaranteed issue and a mandate. Prices in NY for insurance have been going up at only a very slightly higher rate than in Massachusetts (and both have been going up VERY briskly). Also the number of people risking the penalty in Massachusetts appears to be much higher than we would have guessed.

I *suspect* that in the long run, it could be a problem. But it isn't the kind of immediate crisis that is being suggested (i.e. if the Supreme Court strikes down JUST the mandate, health care is doomed). People aren't going to run out and drop their currently existing insurance over this (especially since we aren't at the point where everyone is eligible anyway). Which means that if the Supreme Court strikes down the mandate, there is plenty of time to fix the problem in a few years when the Congress isn't (hopefully) such a miserable piece of crap.

[Note--I'm one of the weird people who thinks that nationally available Medicare would be a good idea AND who thinks that there might be something Constitutionally suspect about forcing people to buy a private product.]

Because it turns out that most people don't want to deal with the hassle of suddenly needing immediate care and not being immediately covered.

$10,000 per year pays for a hell of a lot of hassle.

I'm a bit confused why you talk about NY though. From what I've read:

By 1996, the GI and CR requirements effectively eliminated the commercial individual indemnity market in New York with the largest individual health insurer exiting the market....

A 2000 study by Mark A. Hall24 concluded that:

Following reform, the overall percentage of the population with insurance has worsened, and enrollment in the individual market has steadily diminished. Prices have increased substantially more than in other portions of the market, due to adverse selection. Also, reform resulted in the
demise of comprehensive indemnity products and the withdrawal of all commercial indemnity
insurers.

Hall found that there have been “substantial and continuing price increases” in the individual market, particularly for indemnity business in the years just after reform. Some major insurers increased premium rates 35-40% in this period.

These increases are markedly greater than the increases seen in the small group market,
and may have been dampened by regulation, since New York requires a hearing and approval for rate increases exceeding 10%. Hall notes that in 1998, several insurers, including the two largest carriers in the individual market, requested rate increases between 50 and 80%, citing mounting losses. Except for three small HMOs, these increases were denied, despite the fact that some companies’ reserves had fallen below required levels.

This seems...really bad. Moreover, NJ looks like a pretty clear case of adverse selection death spiral.

So, to clarify, can you point to any healthcare economists who agree with your contention?

Well, of course the suggestion is problematic. He's looking for a way to prevent the Supreme court from enforcing the Constitution. How could that ever NOT be problematic?

More evidence for the proposition that living constitutionalists don't so much object to particular ways of interpreting the Constitution, as they object to HAVING a constitution.

I also am not a lawyer, but I don't think this would be a new power.

Since Mass. seems to be having many of the same problems (insurers leaving and skyrocketing prices) it isn't at all clear that the problem in New York is the lack of the individual mandate.

And again, it is a problem that develops over time. If Congress would like to deal with it in a Constitutional fashion, it has time to do so.

As far as I can see, every healthcare economist believes this is a serious problem. The insurance industry believes it is a serious problem. The CBO believes it is a serious problem. If Congress put together a health care bill that did nothing to deal with this serious problem, I'm pretty sure conservatives, starting with you, would castigate them for ignoring what every expert thinks is a serious problem. Isn't that right?

I mean, Democrats insisted on having their plans pass muster with the CBO. Isn't that a good thing? Don't we want Congress to design legislation so as to avoid issues that experts all agree are problems? Isn't the alternative far worse?

[Note--I'm one of the weird people who thinks that nationally available Medicare would be a good idea AND who thinks that there might be something Constitutionally suspect about forcing people to buy a private product.]

That's nice. So you're for a politically impossible solution to an imaginary problem. Because the Republicans aren't willing to allow a "nationally available Medicare," and "forcing people" isn't really happening since people can opt out for a very small fee (payable to their own government).

A nonsolution to a nonproblem. Excellent.

Turbulence--Traditionally there is a thing called taxes that can be used to pay for things that the government wants to do. They have a long constitutional history. I'm responding to the silly idea that if the Supreme Court strikes down this unconstitutional implementation of dealing with this problem, that the whole thing must fall apart. It doesn't have to. Congress can implement a constitutional method of dealing with the problem, and if they need to can tax to pay for the problem.

Sapient--I'm not a Republican, I don't speak for them nor do I control them. I'm stating my views to fend off the idea that simply because one is against unconstitutional exercises of Congress (forcing people to buy private products) doesn't mean that one is against other methods of governmental public health care providing.

The mandate is specifically designed to be enforced with a penalty for non-use. Punishing people for not buying a product has obviously problems which I'm sure you would admit to if it were a product you didn't like. Bibles perhaps? Meat? Automobiles?

Traditionally there is a thing called taxes that can be used to pay for things that the government wants to do.

Um, yes. What exactly are you proposing?

Punishing people for not buying a product has obviously problems which I'm sure you would admit to if it were a product you didn't like.

Roads. I have to pay for them whether or not I drive. Let's work on that.

Moreover, the government is going to cover the costs of my emergency care if I cannot, no matter what. Since I can't credibly promise to never make use of those services....

The mandate is an obviously pro-insurer solution to a problem that would arise for insurers if they did not have a mandate but were no longer allowed to engage in some of their other methods of punishing slackers who refuse to buy insurance.

It is rational for a young man (in particular) whose employer does not subsidize any of his health coverage to go without coverage. Sure, he is insuring himself, but if he has few assets and no responsibilities, it is a rational choice. A 26-year-old man is very unlikely to come anywhere close to losing money on that bet. A woman in the same group isn't much worse off.

I've had an executive from a health insurance company tell me that he will publicly become a huge fan of single-payer the day he retires.

We could always levy roads fees on the people who use them up the quickest (heavy trucking) and see how that works out. Might be interesting to see what that does to e.g. supermarket prices.

We could. But right now we don't. So the idea that people are never forced to pay for stuff they don't need is a bit absurd.

Through taxation and spending? Or forced to buy a hundred dollars a month at Walmart? Do you see a distinction between those positions?

This link is regarding Medicaid fraud and a Bill at the state level to ameliorate the problem.

But it's really about how NOTHING will be permitted to work properly and sanely in insuring medical care in the United States .... ever.

Notice the names of the individuals and their corporate sponsers who stand in the way.

The usual suspects, minus Karl Marx, natch:

http://www.delawareonline.com/article/20120603/BUSINESS13/306030018/GOP-targets-bill-aimed-dental-care-fraud

Also, I agree with Sebastian regarding the general idea of Medicare for all ... but this:

"there is plenty of time to fix the problem in a few years when the Congress isn't (hopefully) such a miserable piece of crap."

What possible evidence is there that the deliberate destruction of Congress' lifeblood .... compromise .... is ever going to be halted or reversed when "miserable piece of crap" is the policy and platform and the perpetrators of the policy are ascendant at all levels of government and the media.

Also "Citizens United", which institutionalizes and funds miserable pieces of crap.

And you do realize the stipulation "which I'm sure you would admit to if it were a product you didn't like," doesn't even come close to describing the two lethal and I believe irreversible trends in the (anti-) American consciousness regarding government; 1) The "product" IS everything government does and majorities claim its spinach, and 2) (this from free lunch) "I've had an executive from a health insurance company tell me that he will publicly become a huge fan of single-payer the day he retires."

America is a sick puppy with this kind of thinking and the patient is going to have to be put down.

There is one way to throw the entire healthcare mess into deserved bitter chaos and bring things to a head --- remove the mandate that providers must provide medical services of any kind to those who cannot pay or who cannot produce proof of health insurance.

So, I'm thinking about this idea that punishing someone for refusing to purchase a product they didn't like is so .... new.

Isn't that the exactly what the IRS does? I mean, I'm forced to buy the Hubble Telescope. What if I don't approve of astronomy?

I rented cars when I traveled on government business and Brett Bellmore must have been gritting his teeth at being forced to pay for that.

Somewhere along the line, Slart has produced something for the government which delivers a payload and which I was forced to purchase.

Bibles, you say? Didn't Bobby Jindal and the Louisiana Legislature just pass an education funding bill that funneled money to voucherized religious schools that teach the Bible?

I'm pretty sure Treyvon Martin's parents were forced to pay taxes to purchase the labor of the clerks who issued George Zimmerman his concealed carry permit.

This is all going to end very badly.

Is there a proposition that the government mandate that one buy a particular company's insurance? No, but I still see the point you're making, Sebastian. Then again, the mandate is the compromise made that falls short of a public option (or Medicare for all who choose it), allowing private insurers to continue to make their money.

It's sort of the opposite of privatizing roads so corporations can collect tolls, instead of either government agencies doing so or simply allowing free passage with road construction and maintenance paid by taxation. In the better scenario, where the government has provided the good that benefited the economic/political/social system and solved the free rider problem, the collective action problem and probably some number of other recognized problems, we might go backwards.

In the case of basic health care, we could move forward, but we're choosing to stick with the backward private solution.

I'm not sure if that leaves me agreeing with or disagreeing with Sebatsian. I'll chalk up that uncertainty to one too many beers. It'll probably be easy to figure it out one way or the other tomorrow.

Good night.

Actually, eliminating the individual mandate while keeping community rating and guaranteed issue would not be a bad result from a consumer's point of view. Insurers and health care providers, however, would squeal like stuck Republicans.

My crystal ball has long been broken, but I surmise that the most likely upshot would be
expansion of Medicare to those under the present age limits who are willing to pay premiums.

Perhaps in that event the robed wardheelers on SCOTUS would unwittingly teach the PPACA critics to be careful what they ask for.

"...The mandate is specifically designed to be enforced with a penalty for non-use. Punishing people for not buying a product has obviously problems which I'm sure you would admit to if it were a product you didn't like. Bibles perhaps? Meat? Automobiles?"

Guns? Like in the Militia Act of 1792? Requires HAVING a gun, doesn't say how you do it. If you already have a gun via your employers gun-distribution plan, you're okay, otherwise you need to join a gun co-op or just buy one.

Yeah, government never required people to buy stuff. That would be unconstitutional.

"Actually, eliminating the individual mandate while keeping community rating and guaranteed issue would not be a bad result from a consumer's point of view."

For maybe as long as a year. You have to have a really short time horizon to think mandating that private companies provide their product below cost is good for the consumer. You can't buy at the mandated price something nobody can afford to sell anymore.

"For maybe as long as a year. You have to have a really short time horizon to think mandating that private companies provide their product below cost is good for the consumer. You can't buy at the mandated price something nobody can afford to sell anymore."

Maybe this is one case where "the worse the better" would actually work out well for the left. So if the Supreme Court tosses out the mandate, what's the Republican solution going to be?

Not that I'm overly eager to see the experiment conducted. Lots of people get hurt and since America isn't a terribly rational country, I wouldn't expect a sensible response.

what's the Republican solution going to be?

tax cuts, traditional marriage and a border fence. same as everything else.

So if the Supreme Court tosses out the mandate, what's the Republican solution going to be?

That's easy. They will change course 180° and declare that since the court overturned the mandate (our REPUBLICAN idea! Those stinking activists!) and the mandate is the only way to make the horrible HCR viable, it will be necessary to overturn everything else too. And if the White House wimp (soon to be unelected) refuses to sign it, no funds will be appropriated to enforce any part of it. Actually, we will do that anyway. What will you liberals do? Run to SCOTUS? Hneh, hneh, hneh!

One of my jobs during the 2010 Census, besides leasing office space and managing build out, was to drag the taxpayer down to Staples (or whichever vendor was cheaper .... learned that from my reading of the Communist Manifesto, or was it Peter Drucker .. I get them confused) and forced the poor dears to purchase office supplies.

Most were cooperative, or just went constitutionally limp at the sheer size of the operation, but I remember having to pistol whip Grover Norquist and Erick Erickson's wife to "coax" the money from the hands that weren't holding the shotgun.

This morning, I'm pretty sure (I never actually see what I buy until I turn on the television and things go boom) I purchased roughly $100 of merchandise from Lockheed-Martin, not a discount purveyor, by any means.

Isn't it Medicare that is disallowed from seeking group bulk discounts on medical supplies and services from the private sector?

The public mandate in the health care law is just a continuation of the privatization and contracting out of government goods and services that started when the Founding Fathers sent out for hashish during the Constitutional Convention.

The only difference here is that the health care law lets individuals do the shopping rather than a contracting officer, obligatorily faceless, natch, to satisfy contemporary outrage and prejudices.

Hold your breath. No one's forcing you to breathe.

None of this is aimed at Sebastian, who I wish would run for political office, nor am I necessarily judging the efficacy of any of the above examples.

It's just me marveling at how we make stuff up as we go along and call it settled law, or worse, principle.

There are two commas in the Second Amendment and they are place holders for the words "shut up, that's why".

Sebastian, let me see if I am understanding you correctly. You are saying that the individual mandate is constitutionally suspect. But that using taxes to pay for health care (i.e. a single payer system) would be fine. Right?

That wouldn't be my ideal end result but it would be Constitutional. Congress can tax. Congress can spend money with taxes. Those are very different powers from issuing an order saying that you must buy some private product and doling out punishments if you refuse.

Better if we go in the opposite direction: stop piling up ridiculous Christmas-tree bills full of non-relevant amendments.

Robert's Rules of Order prohibit non-germane amendments, and so should Congress.

But heck, the Presidency should bs tripped of a whole lot of its powers, and that isn't going to happen either . . . .

"If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative."

I suspect the Court would find a way to invalidate that clause to avoid precisely the pressure it was intended to exert.

The Akhil Reed Amar argument is that the protection against being forced to buy broccoli (or healthcare) is the same as the protection against being taxed at 100%, namely, what people will vote to support.

Sebastian, why do you think the Commerce Clause isn't adequate to support the mandate?

Well, for starters, not buying something in S.C. isn't commerce among the several states. That's where it ends, too. Aggregation and substantial effect are just end runs around the actual text of the clause, which only permits regulation of actual commerce itself, which is actually interstate.

I thought aggregation and substantial effect were implementing the necessary and proper clause, which IIRC is in the actual text.

Aggregation of what? I'm pretty sure the aggregate decision of people to not buy a product always has a substantial effect on the product. Not buying is sort of the definition of not commerce.

But not commerce is just commerce with a not in front of it. And, anyhow, you can't have not commerce without the commerce.

The commerce clause discussion, in my view, makes the corporate personhood conversation look positively sane by comparison.

"I thought aggregation and substantial effect were implementing the necessary and proper clause, which IIRC is in the actual text."

I can see some basis for regulations which, while primarily aimed at actual interstate commerce, have some effect on the margins on other commerce, and matters not commerce. Say, you require a product to be stamped with it's state of origin, so that it can be established that a shipment of the product actually did come from a different state than it was found in. That could be a regulation of intra-state commerce which genuinely furthered the aim of regulating interstate commerce.

But let's be honest here, that's not what's going on anymore. Congress just regulates everything it feels like, without even considering the "interstate" or "commerce" parts of the clause. And then if a challenge comes along starts making BS excuses. But they weren't trying to regulate interstate commerce, and regrettably having to include some intrastate commerce to make the regulation work. They were totally blowing off the distinction.

"But not commerce is just commerce with a not in front of it."

In the same way "unconstitutional" is just "constitutional" with an "un" in front of it...

Up with not corporate personhood.

. . . why do you think the Commerce Clause isn't adequate to support the mandate?

One answer to the question is: regulate is not synonymous with compel, which is synonymous with mandate.

If Congress passes a law permitting health insurance companies to sell across state lines and consumers to buy policies across state lines (for the moment ignoring the downsides), then we're good to go on the constitutionality of the mandate under the Commerce Clause, no?

Or is "unconstitutional" just "constipated" with an "un" in front of it and a "pated" instead of a "tutional" bringing up the, uh, rear.

One answer to the question is: regulate is not synonymous with compel, which is synonymous with mandate.

No. Having to pay an extra tax is not a compulsion.

A better answer to Sebastian's: "there is plenty of time to fix the problem in a few years when the Congress isn't (hopefully) such a miserable piece of crap."

http://delong.typepad.com/sdj/2012/05/six-questions-i-asked-thomas-mann-and-norman-ornstein-about-their-book-its-even-worse-than-it-looks-on-may-18-2012.html

Having to pay an extra tax? You ARE aware that the legislation actually does refer to it as a penalty, right?

So, fines aren't compulsion, because you can chose to pay them. I guess jail terms aren't compulsion, because you can chose to serve them, and beatings wouldn't be compulsion, because you could choose to endure them.

This is nothing but sophistry, of course the mandate is compulsion. Maybe not perfectly effective compulsion, but does force have to be 100% effective to be force?

Having to pay an extra tax? You ARE aware that the legislation actually does refer to it as a penalty, right?

They could refer to it as a purple-headed elephant, but that doesn't change reality. The reality is if you don't buy insurance, you have to pay an extra tax.

So, fines aren't compulsion, because you can chose to pay them.

I'm being compelled to have children right now, because if I don't, I'll have to pay more in taxes.

The individual mandate will be enforced by the IRS; if you don't pay it, they'll treat it just like they would any other refusal to pay taxes. This is similar to how it works in MA right now: every year when I do my state taxes, there's a section where I have to indicate whether I've been covered by appropriate insurance for the entire year. If I can't do that, I have to pay an extra tax.

I'm unaware of other "fines" that are handled in this manner.

"regulate is not synonymous with compel, which is synonymous with mandate."

If making someone pay a fine is compulsion, how is regulation different?

What is it that you think regulation does that is somehow less compulsory than imposing fines?

Because if you aren't doing it in the first place, there's nothing to regulate. It's like the difference between setting a speed limit, and ordering somebody to hop in a car and start driving. I don't know of any other regulation you can't avoid tangling with, by the simple expedient of not engaging in the regulated activity, but here the regulation IS a demand you engage in the activity.

Brett, I think that's besides the point that McKTx was making, which I assume was that regulation is different from compulsion, and that the Commerce Clause empowers Congress to regulate but not to compel.

I suppose you could define compel and regulate so that they divide neatly on the issue of Congress's power to address action rather than inaction, but I don't see a reason to do that. I was more quibbling about semantics on the regulate/compel distinction he was making.

As for regulating inaction, do you think that Congress is empowered to do so through the Taxing power, but not through the Commerce Clause power? Or do you think inaction is Constitutionally immune from regulation under either power?

I don't know all the details of the ACA, but I know generally that there are considerations for people who lack the funds to purchase insurance or pay the fine/tax/penalty. (I'd go looking, but I'm off to my daughter's baseball game very shortly.) It seems to me that any discussion of the constitutionality of the mandate should consider the actual details, rather than having a purely abstract discussion of what constitutes compulsion or regulation or (non-)commerce (or purple-headed elephants).

"Actually, eliminating the individual mandate while keeping community rating and guaranteed issue would not be a bad result from a consumer's point of view."

For maybe as long as a year. You have to have a really short time horizon to think mandating that private companies provide their product below cost is good for the consumer. You can't buy at the mandated price something nobody can afford to sell anymore.

Exactly right Brett. Which is why the mandate is necessary and proper to make the plan work.

And I'm really tired of the "compulsion" argument. First, having to pay a penalty is a far cry from being locked up for ten years. "Compulsion" is a continuous variable. Second, no matter what careful parsing some lawyers do, there is really no substantive difference between the statments:

1. Do X and you will pay less tax than otherwise
2. Don't do X and you will pay more tax than otherwise.

Since the tax code is full of examples of (1) I find it hard to understand why an example of (2) is unconstitutional.

Yeah, and a mandate would be necessary to making a welfare plan that involved ordering grocery stores to hand out free food to the poor work, too. That doesn't make ordering private companies to hand out freebies, and then ordering people to buy the company's products at an inflated price so they don't go bust, is a legitimate way to go about government aims.

If the government wants to give something to people, they can levy the taxes, buy it, and hand it out. The ACA is just a way of moving a welfare program off budget so that you can avoid the political hit from having to fund it.

Oh, and

"Since the tax code is full of examples of (1) I find it hard to understand why an example of (2) is unconstitutional."

If we're going to pretend penalties aren't penalties if the legislature labels them a "tax", then when the legislature actually goes ahead and calls them "penalties", we are entitled to take them at their word. The penalty is not a tax, even if Congress thought it convenient to have the IRS collect it. It's a penalty.

Every single court the "it's a tax!" argument has been taken to has rejected it.

Now, if you don't understand why Congress can't make something illegal, and fine everybody who does it without benefit of a trial, all I can suggest is that you have another try at reading the Constitution.

"If the government wants to give something to people, they can levy the taxes, buy it, and hand it out. The ACA is just a way of moving a welfare program off budget so that you can avoid the political hit from having to fund it."

You know, Brett, I agree with every word of that paragraph. For different reasons, natch, which just goes to show that minds twisted in opposite configurations can reach similar conclusions.

Obama and the Democrats, and those formerly reasonable Republicans who were for the mandate and then against it because a Muslim Kenyan suddenly thought it was a good idea, are simply cowards.

But I guess they need to live down to the lowest common denominator presented to them by the rabble formerly referred to as the American people, who apparently love referring to taxes as a "burden", but can't countenance the word "penalty".

I might have added "two wars" to "moving a welfare program off budget so that you can avoid the political hit from having to fund it", and noted too that the Bush psychopaths were and are very clever in their deflection of their responsibility for our (borrowed) deficits and our current mess to the guy now in the White House.

The strategy to smirk and mockingly have the tax cuts expire in ten years was genius, much like Hitler's early diplomatic and military strategies in he late 1930s were genius, if only for their sheer, bold, disarming guile, albeit ultimately ruinous for his country.

(I use Hitler here only in the political sense and because I'm reading some histories of 1930s Europe and World War II. That the Republican Party might live up to the Fuhrer in other senses, eventually, is beside my current point, but not likely to surprise me.)

Which brings me to Sebastian's point:

"File this under: don't give sweeping new powers to a branch of government that you wouldn't ever want to see in the hands of your political opponents."

I think MckT has made this point in the past, too.

Thus, back to Brett's outlook, I look forward to Republicans winning both houses of Congress and the Presidency and instituting a balanced budget amendment along with a 70% supermajority for any tax increase (I'd be open to sunseting ALL taxes, because if zero makes you happy, then zero it better well godda*ned be, f&ckers), because at some point Democrats will be ascendant again and I want to play under those rules, too, just for vengeance' sake.

I don't to pay taxes any more. What's the penalty for that?

I'm different than most liberals. I look at things like this: it used to be that a simple fistfight (rhetorical or actual) between otherwise innocent equals would end with both parties not too much worse for the wear, but now with one guy concealed carrying (George Zimmerman) and the other bringing little more than Skittles and his fists to the fray, I believe Treyvon's parents should have equipped him with concealed carry as well, so that henceforth all fistfights, political, rhetorical, and actual in America, which used to end up with compromise, now end up with maximum damage to both parties and the rest of the country as well.

I don't trust Republicans any more because I'm pretty sure they are all carrying, according to all of the big f*cking talk.

I wouldn't make a false move around me. Don't innocently scratch your crotch while ranting about liberals. It might be mistaken for reaching for your gun.

It's just not right that only one party to the fray enjoys ruination. I believe everyone should pitch in and enjoy.

Like this, in which Treyvon AND Zimmerman both end up dead and Americans celebrate their freedoms:

http://www.youtube.com/watch?v=vfiNVTPqWPY

It's the only logical outcome of concealed carry laws and our tax debate.

if you don't understand why Congress can't make something illegal, and fine everybody who does it without benefit of a trial, all I can suggest is that you have another try at reading the Constitution.

One year I was late paying my taxes. Guess what? I paid a penalty. No trial, no nothing.

And as for the courts, I will only point out that you - Brett Bellmore - are happy to reject their opinions as invalid when you disagree with what they say, so maybe you shouldn't be citing their authority, rather than making an actual argument.

On the compulsion / regulation issue, consider this. In Brett's formulation, you can avoid a regulation simply by not engaging in some behavior (e.g. driving). Well, you can likewise avoid the regulation to buy health care simply by not buying health care from a private company. And you still end up with health care (government-provided health care at that!). Plus free room and board. What's not to like?

/sarcasm

So single-payer or a public option would be okay constitutionally, if not necessarily politically (thus far, not). The mandate, which kinda, sorta accomplishes at least some of the same things through private insurance, isn't okay constitutionally, even though there is an obvious market failure that needs addressing and even though the following apply:

Satisfactory coverage may be procured through an employer, enrollment in government health programs, or the purchase of an individual policy on the open market.111 Failure to maintain adequate coverage will result in a penalty of $695 per person (but not exceeding $2,085 per family), or 2.5 percent of family income, whichever is greater.112

The law provides several exceptions to the minimum coverage requirement. For instance, individuals with incomes too low to file federal taxes will be exempted; additionally, an individual may petition for an exemption if the cost of obtaining and maintaining coverage will exceed 8 percent of household income.113 The law also contains exemptions for incarcerated individuals, Native American tribe members, and those who decline insurance for religious reasons.114 The law also provides a three month grace period before a penalty is imposed for lack of coverage.115

From here (PDF).

That's life under the rule of law: You have constitutional means to ends, and unconstitutional means to ends. Just because you see a problem doesn't mean any approach you fancy to solving it suddenly becomes ok.

This is very silly. The SCOTUS can void any Law it likes. There is no limit except impeachment. Any bad consequences the Congress or President must remedy; or the public suffer. Revolution off course is the final remedy.

Sure, Brett. The question, though, is whether this particular means is constitutional, not whether or not there is such a thing as unconstitutional means. I'm sure you won't find that very illuminating, but it is the sort of response you should expect to the sort of comment you made. (Or maybe something along the lines of "woop dee doo" would be better.)

Well, I don't understand why you think "obvious market failure", (Even granting that for arguments' sake; the failure of one of the most heavily regulated markets in existence might just be government failure.) is a reason to declare any old solution to the problem constitutional. I don't even see why it would be relevant; Constitutionality doesn't hinge on the existence of problems, it hinges on the existence of constitutional clauses authorizing an act. And they authorize such acts even where no 'problem' exists.

Similarly, none of "the following" seem constitutionally relevant. If you can't do something constitutionally, doing it with exceptions doesn't make it constitutional. The federal government isn't constitutionally entitled to impose nation-wide speed limits, even if it lets some people have licenses to speed.

But, of course, to a very large extent the ongoing argument is exactly about what is constitutionally relevant, isn't it?

Abortion is not my favorite procedure in the world, but I flagged this regarding legislation bubbling in the witch's cauldron of the Michigan State House, one of the laboratories of democracy within which innovative public policy is incubated and delivered to us like Rosemary's Baby:

"The legislation does not allow late-term abortions in cases of rape, incest or fetal defect, such as a missing brain or spine."

Meanwhile, while large health insurance companies announced they will keep a few features of the healthcare law, should the law be struck down or abolished, they are mum on whether to voluntarily extend coverage to children below the age of 19 with pre-existing conditions, citing the threat of too much demand for that service, especially if only one or a few companies retain that feature.

Morality and fairness to shareholders clash again. Personally, I'm pro-life up and until my dividends are cut or Justice Thomas poses a question, whichever comes first. After that, screw it.

Meanwhile, I'm musing on the prospect of these physically brainless and spineless voters sort of oozing into polling places expecting to vote in elections in a few years.

One wonders if they'll remember to bring along their I.Ds and not be subjected to a gauntlet of Tea Party fabulists hitting them on the nose with a rolled-up copy of the Constipation because they happen to be brainless and spineless without proof of citizenship.

We can only hope that surviving fetuses are evenly distributed among conservatives (the brainless) and liberals (the spineless) so as not to tip the scales one way or the other.

Perhaps FOXnews will contrive to give one or more of the surviving fetuses their own political prognostication TV spot in which, Schiavo-like, their eye movements to either the right or the left predict political races on election night.

Fair and balanced. (The viewers at home, having their doubts about that last claim, will ask each other, "Now, is she gazing to OUR right, or is it HER right?) Little do they know that Roger Ailes is standing, buck naked with bubbles (in the words of James Dickey) to the prognosticator's Left, so that she averts her eyes to the Right for every race.

Incidentally, my personal view regarding the fate of Terri Schiavo was that the Federal and State Governments should have stepped in and taken full responsibility for her medical expenses and care (as if they weren't already, unconstitionally, strictly speaking) and provided her with a full Wall Street pension and golden parachute and various balloon payments along the way.

Schiavo, for her part, being a principled individual, might have thrown her copy of "The Virtues of Selfishness" across the room and demanded that parasites like her either get a job or be cut off.

File all of this under "I Hate the Stupid F*cking Results, So Let's Blow Up The Whole System."

Well, I don't understand why you think "obvious market failure", is a reason to declare any old solution to the problem constitutional.

Well, I don't understand why you write things like this. I'm talking about a particular solution, not "any old solution."

Even granting that for arguments' sake; the failure of one of the most heavily regulated markets in existence might just be government failure.

Maybe it is. Either way, it needs fixing.

I don't even see why it would be relevant; Constitutionality doesn't hinge on the existence of problems, it hinges on the existence of constitutional clauses authorizing an act. And they authorize such acts even where no 'problem' exists.

The Constitution authorizes congress to pass laws that are necessary and proper. The problem is what makes the ACA necessary. The exceptions are what make it proper.

As far as interstate commerce is concerned, would you say people can only require health care in their state of residence?

And what about this?

The Patient Protection and Affordable Care Act (PPACA) does include provisions that will allow the purchasing of health insurance across state lines. However, these provisions are structured somewhat differently than earlier proposals advocated by some members of Congress and Senator John McCain during his 2008 presidential run. The differences are intended to protect states with more consumer protections from having those regulations undermined by cross-state sales of health insurance.

And I agree generally that the Commerce Clause is overused and abused. I just don't see that it is in this case.

It is the health insurance market being regulated, generally, because it significantly affects people's ability to obtain health care, wherever that may occur. Health care is a matter of general welfare and is often provided as a matter of interstate commerce. And everyone uses it, except those people who don't have bodies.

I find the whole argument to be absurd.

"The Constitution authorizes congress to pass laws that are necessary and proper."

No, it doesn't. It authorizes Congress to pass laws which are necessary and proper "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

If a law isn't carrying into execution a power which is actually granted to the government, it cannot be necessary and proper.

It's kind of like omitting the words after "to regulate" in the interstate commerce clause...

The federal government isn't constitutionally entitled to impose nation-wide speed limits

No, it is not, but your point is simply dumb. Congress is entitled to insist on such rules insofar as they apply to roads built with federal funds....but, I think we've been down this road before.

Now if you don't believe that people and/or institutions can put strings on how their funds are spent, then by all means tell us how this "sacred principle" ("i.e., you/it are not entitled")that you pulled out of your behind applies to say, contracts, wills, bequests, loans, etc.

But whatever.

Look, that there was a DIFFERENT law Congress could have passed, that would have been a slam dunk under current jurisprudence, is utterly irrelevant. They passed the law they did pass, and it calls the penalty a "penalty", not a tax.

It's an old story, seen it several times: Congress finds a work-around to effectively exercise a power they weren't granted, like conditional block grants to force the states to impose speed limits. They get used to exercising that power indirectly. Then they forget they don't actually have it, and try to exercise it directly. Sometimes the Court lets it slide, and another piece of the Constitution dies. But sometimes the Court slaps them down.

They could have written a law that wouldn't have had so much trouble getting past the Supreme court. THEY DIDN'T.

Just wanna say that, IMO, all sacred principles are pulled out of our (humans) behinds, which I suppose is why the Founders pulled their sacred principles regarding the balance of behinds out of THEIR behinds so that all of the behinds are a check on all of the other behinds, with nine specially robed behinds sitting in judgement of the product of all the other behinds.

When in doubt, God's behind has been construed by some for final reference to sacred principle, along with the footnotes, interpretations, translations, exceptions, codicils, etc, all of the other behinds have appended like barnacles over the ages.

But there is always some horse's behind sitting in the pews, where behinds rest until other sacred principles strike their fancy, who wonders out loud: "Roads" Well, you asked what the Romans have done for us, didn't you?"

I've been reading a lot of histories of the events leading up to World War I and about the Great War itself and it's remarkable how many sacred principles had accrued from various Victorian behinds over the years just itching to be scratched by a jolly good behind-kicking and the attendant slaughter of completely willing behinds, principles being sacred as they are.

I'd say, by my figuring, we're about due for another.

Meanwhile, without principles and behinds, what would become of blogging and a*sholes like me?

It authorizes Congress to pass laws which are necessary and proper "for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Yeah. That's why I followed my "necessary and proper" statement with my argument for the commerce clause applying. But thanks for ignoring that, since we're talking about people ignoring everything after such and such.

If you have a basis upon which to refute my argument on the commerce clause's applicability, that's fine, but don't pretend I ignored the fact that "necessary and proper" needs to be paired with some other enumeration.

I don't pretend to speak for Brett, but it looks like your commerce clause argument proves too much.

(I'm assuming that this is your argument, if it is another comment I'll be happy to try to address that): "It is the health insurance market being regulated, generally, because it significantly affects people's ability to obtain health care, wherever that may occur. Health care is a matter of general welfare and is often provided as a matter of interstate commerce. And everyone uses it, except those people who don't have bodies."

First 'health insurance market' theoretically covers a lot of potential ground and 'health care' even more.

Second, I think you say 'health care is a matter of general welfare' to show subject matter appropriateness. This leads us to the following enumerated power of Congress: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States...." That enumerated power is that Congress has the power to collect taxes in order to provide for the general welfare of the United States. So you're taking 'health care' to be a subset of general welfare there. (I don't think you mean to be invoking the Preamble, which is, well a preamble and lets us know the shape of what comes ahead, not a grant of power to any particular branch. This can be seen by the fact that it suggests powers that are given to different branches later). So far it looks like the tax/penalty distinction is at least a plausible one.

Third, you invoke the interstate commerce clause, suggesting that regulating health care has interstate commerce dimensions. This is important because the grant of Congress only gives taxing authority, and thus doesn't reach the health care mandate.

But if you read the grant of tax and spend power beyond the reading I give above, and get to use the interstate commerce clause to extend a general regulation ability to anything covered by the taxation clause, you've just given Congress the ability to regulate ANYTHING that it deems relevant to the common defense and general welfare of the nation.

Fourth, you want to interpret the general regulation ability you've given through the interstate commerce clause as not only regulating how you engage in the commerce, but also whether or not you engage in the commerce. (You want to mandate the purchase of the product).

It is easy to see that the line of jurisprudence you seem to be proposing allows that Congress to regulate AND mandate the purchase of any product which it deems important to common defense and general welfare of the nation. (Remember you got health care in there as a subset of 'common defense and general welfare').

If that is true, we don't need to invoke the necessary and proper clause at all (which isn't normally seen as a limit on powers, but an explanation for how far powers can go even when they seem to contradict things in the bill of rights.) We've already reached a power of Congress limited only by whatever it deems part of the common defense and general welfare. [I'm aware of no law struck down by the Supreme Court for not being covered under that. Is anyone else?]

So that jurisprudence leads directly to "Congress can mandate the regulation AND purchase of any product" with NO steps beyond what is needed to justify the health care mandate.

Also note the argument above suggesting that the health care insurance companies would go out of business if enough people didn't buy their product. So far as I can tell, that is true of any company.

Which leads to my question above. Turbulence wrote: So the idea that people are never forced to pay for stuff they don't need is a bit absurd.

I responded: Through taxation and spending? Or forced to buy a hundred dollars a month at Walmart? Do you see a distinction between those positions?

I still don't see any good response to that, and that is what the jurisprudence being advocated leads to *with no additional steps beyond those required by the current defense of the health care mandate*.

Now it may be that I've unpacked your argument in unintended ways. I'll be happy to respond to that if I've confused something.

Sorry, I don't mean to flood the post, but an important part of your comment didn't get addressed.

"Health care is a matter of general welfare and is often provided as a matter of interstate commerce. And everyone uses it, except those people who don't have bodies."

If you mean this to distinguish health care from other markets, it doesn't do a very good job. 'Health care' is an incredibly broad category. 'Everyone uses it' is only true so long as we leave it in very broad strokes. (And I'm not even talking about religious exemptions and the like). People end up using 'health care' in very different ways. Some people pop lots of pills, others don't. Some people see the doctor for every little thing (and are almost certainly driving up the cost of health care generally). Others don't. There are a lot of methods of using health care. Some people, like my grandmother, used health care in the form of doctors not at all until we had to put her in a rest home for Alzheimers, and she probably would have been happier if we had let her die at that point.

Compare that to the food market. Your statement about everyone using it is even more true for the food market. People actually use the food market nearly everyday, and can't avoid food indefinitely for religious reasons. The food market is absolutely crucial to the general welfare of the United States. Food companies would go out of business if enough consumers didn't buy their products. But supposedly the mandated purchase of broccoli hypothetical is a conservative scare tactic.

And that is only if the 'everybody uses it' part is critical to the commerce clause argument. If you are using the necessary and proper clause (Congress has the powers necessary and proper to the regulation and operations of the markets for the common defense and general welfare), we're all the way out to buying literally any product that Congress decides.

None of those are extensions to the commonly used judicial arguments in favor of the mandate. No further court ruling would be necessary. They are straight up applications.

Forget I used the phrase "general welfare" for a moment. Is health insurance a matter of interstate commerce or isn't it?

Here's my argument:

Given the manner in which congress has decided to regulate health insurance, which may pay for health care in a state other than that in which the insurance was purchased or where the insurance company or the patient resides, the mandate is necessary. Given the exceptions to the mandate, it is proper, not placing undue burdens on individuals who cannot reasonably be expected to comply.

I don't see how the interstate commerce clause doesn't apply, at least not given precedents that have stretched the clause much, much further. (You can't grow things for your own use because it might end up affecting an interstate market? Seriously???)

I don't love the PPACA. Universal Medicare has more appeal to me, too. I'm just not seeing the mandate as being unconstitutional. And I don't see that the constitionality of this mandate confers constitutionality to any silly, imaginary mandate someone can come up with. The whys and wherefores matter, not just the general idea of someone being required by federal law to obtain something.

I don't really see Wickard as stretching further. First it should be overruled anyway as patently ridiculous. Second, even Wickard didn't require the purchase of anything.

I don't see why we should allow Congress to get at otherwise unconstitutional things with "given the manner in which congress has decided..."

That argument can apply to any interstate commerce regulation, see food above.

The mandate doesn't require you to purchase insurance. It requires you to be insured or pay a penalty, if you have sufficient income and have access to reasonably affordable insurance. Employer-provided insurance is acceptable and does not require the insured individual to purchase anything. Only under certain circumstances might one have to purchase insurance to avoid the penalty. (And it's not the government's doing that everyone participates in the health care market, except for those people who lack bodies.)

But supposedly the mandated purchase of broccoli hypothetical is a conservative scare tactic.

Well, I'm not too sure if it's a scare tactic, but I am reasonably certain it is a pretty http://www.lawyersgunsmoneyblog.com/2012/03/the-broccoli-menace> dumb one according to Scott Lemieux at LGM.

That the Founders™ and subsequent SCOTUS Justices didn't understand the Butterfly Effect doesn't seem to me to be a sufficient reason to adhere to their ignorance. YMMV, I suppose.

It requires that you buy insurance. If you don't you are subject to a penalty. At the moment that penalty is a fee. There is no obvious reason under the Constitutional theories offered why it should not be a larger fee, or some other punishment. The idea that the government punishing people for not doing something is different from mandating that they do something is foreign to me. It is called a the health care 'mandate' for a reason.

If the government threatened you with prison for not spending $100 per month at Walmart, that would be a mandate and it would be the government requiring that you spend $100 per month at Walmart.

If the Government threatened to fine you $1000 for not spending $100 per month at Walmart, and if you failed to pay the fine you could legally be prosecuted and put in jail, that would be a mandate and it would be the government requiring that you spend $100 per month at Walmart.

If the Government threatened to fine you $80 for not spending $100 per month at Walmart, and if you failed to pay the fine you could legally be prosecuted and put in jail, that would be a mandate and it would be the government requiring that you spend $100 per month at Walmart.

Bobbyp, my problem with Scott's argument is that it denigrates slippery slope arguments when there isn't one present here. His argument is that it is a slippery slope discussion because the government might not choose to exercise the power offered by this jurisprudence. My point is that if let this constitutional point go, we are already at the bottom of the slope constitutionally speaking, the only question is whether or not Congress will exercise the power. [i.e. there is a huge difference between saying that torture is illegal and/or unconstitutional and saying that it is legal and constitutional, but that Presidents just won't use it very much].

This is the bottom of the slippery slope from a Constitutional perspective.

The idea that the government punishing people for not doing something is different from mandating that they do something is foreign to me.

People are already doing something. They require health care. It's an unavoidable circumstance, not of the government's creation.

They require food....

Sebastian,

Claiming that a political difference is a constitutional difference does not make it so. Mandating the consumption of broccoli would be stupid and silly, but likely as not, not actually unconstitutional.

Further, it is not even remotely on the political radar of possible legislative and/or policy outcomes, even at The Onion.

And more further, you ignore totally the whole discussion on who is responsible for developing the pertinent 'limiting principle' (hint: It's not Congress).

It strikes me that Scalia is trying to invoke the "I know pornography when I see it principle" (otherwise known as the Count-me-in Out of Your *ss Doctrine) which is simply a mask for capriciousness, and is simply not a limiting principle with any kind of actual useful content.

As to torture. If I recall correctly, the whole discussion was couched in terms of whether or not what the boys in the back room were doing was actually "torture" (cruel and unusual) or not. It was not an argument as to whether or not torture is 'constitutional'. All sides claimed to be "against torture" and that torture is 'unconstitutional'.

Thus your analogy strikes me as simply inappropriate to the subject at hand.

The ACA may be clumsy, inappropriate, unworkable, costly, or just plain stupid. It is not unconstitutional.

I dispute that the mandate is necessary to carry into execution any power the federal government actually posesses.

Let us grant, entirely for the sake of argument, that Congress has the power to order that BC/BS of South Carolina sell it's product to South Carolinians at a price that Congress dictates. Let us grant that complying with this law would destroy BC/BS of South Carolina. (The latter is on much stronger grounds.)

That doesn't make the mandate necessary to implement the regulation. Congress is perfectly capable of implementing the regulation without the mandate, and driving BC/BS of South Carolina into insolvency. It wouldn't be the first business Congress successfully destroyed with a regulation. Probably won't be the last industry they destroy, either.

The mandate isn't there to implement the regulation. Regulations are successfully implemented with resultant disasters all the time. (Like the mass destruction of classic children's books caused by the recent regulations on resale of old books.) It's there to ameliorate the harmful effects of the regulation. That is to say, the argument here is that any time Congress causes a problem, they're entitled to do whatever they think necessary to solve it.

Like the mass destruction of classic children's books caused by the recent regulations on resale of old books.

Not trying to be the cite police here, but can you give me a link to something about that? I know that publishers rip the covers off of paperbacks (so called "stripped books") but I don't think that includes classic children's books.

See, for instance: http://www.semicolonblog.com/?p=4336

I really wish I was making it up, it's a disaster on the scale of the Library of Alexandria being burnt.

"I dispute that the mandate is necessary to carry into execution any power the federal government actually possesses."

Does the federal government actually possess the commerce clause power to regulate the national health insurance market?

If yes, why isn't the mandate necessary and proper to regulating the nation health insurance market?

Thanks for the link Brett, but I think that the blog writer and the people she is linking to are overreacting. See here and the snopes link here.

Brett's comment reminds me of Kent Brockman on The Simpsons providing news coverage of a disturbance at a children's summer camp: "Ladies and gentlemen, I've been to Vietnam, Afghanistan, and Iraq, and I can say without hyperbole that this is a million times worse than all of them put together."

The Library at Alexander was funded and built by royal MANDATE.

Faceless, unionized, overpaid government bureaucrats ran the joint.

The contents were plunder, stolen by government from the world's cultures.

Luckily, the Egyptian fire department had been defunded by the shortsighted Ptolemy as he needed the water to drown the baby in the bathtub.

http://lewrockwell.com/carson/carson28.1.html

Later, it is said, Antony privatized what was left for Cleopatra's benefit.

Alexandria, no less.

I'm pretty sure slaves built the place. They aren't exactly unionized.

"Ran the place" isn't exacty "built the place."

Sorry - "ran the joint"

That is to say, the argument here is that any time Congress causes a problem, they're entitled to do whatever they think necessary to solve it.

Whose argument? Where?

Actually, the day to day business of the library of Alexandria was very likely run by slaves and I am not talking about the menial work of carrying scrolls around. The empires and institutions of antiquity were rarely bale to run their own administration without formally unfree professional employees up to very high levels. Btw, most school teachers were slaves too. That's one fundamental difference between Mediterranean slavery of antiquity and the US South before the Civil War. Could you imagine Jefferson Davis having a staff 90% black and a private secretary who was a slave born abroad?

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