Which Clause In The Constitution Allows National Health Care

[sharon kinsella]

Roy - I paid for your parents and mine so don't think you're altruistic. Actually the idea of that word hooked with the way you behave online is ridiculous.

[Roy Pitchford]

Forgive me, I don't see any citation.

http://online.wsj.com/article/SB20001424052748704896104575140063408610580.html

The constitutional challenges to ObamaCare have come quickly, and the media are portraying them mostly as hopeless gestures—the political equivalent of Civil War re-enactors. Discussion over: You lost, deal with it.

The press corps never dismissed the legal challenges to the war on terror so easily, but then liberals have long treated property rights and any limits on federal power to regulate commerce as 18th-century anachronisms. In fact, the legal challenges to ObamaCare are serious and carry enormous implications for the future of American liberty.
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The most important legal challenge turns on the "individual mandate"—the new requirement that almost every U.S. citizen must buy government-approved health insurance. Failure to comply will be punished by an annual tax penalty that by 2016 will rise to $750 or 2% of income, whichever is higher. President Obama opposed this kind of coercion as a candidate but has become a convert. He even argued in a September interview that "I absolutely reject that notion" that this tax is a tax, because it is supposedly for your own good.

Florida Attorney General Bill McCollum and 13 other state AGs—including Louisiana Democrat Buddy Caldwell—claim this is an unprecedented exercise of state power. Never before has Congress required people to buy a private product to qualify as a law-abiding citizen.

As the Congressional Budget Office noted in 1994, "Federal mandates typically apply to people as parties to economic transactions, rather than as members of society." The only law in the same league is conscription, though in that case the Constitution gives Congress the explicit power to raise a standing army.

Democrats claim the mandate is justified under the Commerce Clause, because health care and health insurance are a form of interstate commerce. They also claim the mandate is constitutional because it is structured as a tax, which is legal under the 16th Amendment. And it is true that the Supreme Court has ruled as recently as 2005, in the homegrown marijuana case Gonzales v. Raich, that Congress can regulate essentially economic activities that "taken in the aggregate, substantially affect interstate commerce."

But even in Raich the High Court did not say that the Commerce Clause can justify any federal regulation, and in other modern cases the Court has rebuked Congress for overreaching. In U.S. v. Lopez (1995), the High Court ruled that carrying a gun near a school zone was not economically significant enough to qualify as interstate commerce, while in Morrison (2000) it overturned a law about violence against women on the same grounds.

All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can't Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?

The mandate did not pose the same constitutional problems when Mitt Romney succeeded in passing one in Massachusetts, because state governments have police powers and often wider plenary authority under their constitutions than does the federal government. Florida's constitution also has a privacy clause that underscores the strong state interest in opposing Congress's health-care intrusion.

As for the assertion that the mandate is really a tax, this is an attempt at legal finesse. The mandate is the legal requirement to buy a certain product, while the tax is the means of enforcement. This is not a true income or even excise tax. Congress cannot, merely by invoking a tax, blow up the Framers' attempt to restrain government under Article I.

The states also have a strong case with their claim that ObamaCare upsets the Constitution's federalist framework by converting the states into arms of the federal government. The bill requires states to spend billions of dollars to rearrange their health-care markets and vastly expands who can enroll in Medicaid, whether or not states can afford it.

Florida already spends a little over a quarter of its budget on Medicaid, and under ObamaCare that will expand by at least 50% as some 1.3 million new people enroll. Those benefits, and the burden of setting up the new exchanges, will cost Florida $149 million in 2014 and $1.05 billion annually by 2018. The state will either have to cut other priorities or raise taxes. In legal essence, ObamaCare infringes on state sovereignty and unconstitutionally conscripts state officials.

Less potent, at least to our reading, is the challenge on behalf of state laws that bar or exempt their citizens from the mandate. Virginia passed such a law earlier this year, and Attorney General Ken Cuccinelli is suing on those grounds. But while such efforts serve as healthy political protest, federal laws that are constitutional are supreme under the 10th Amendment, and states can't "nullify" a Congressional action.
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Judicial and media liberals are trying to dismiss these challenges as a revanchist attempt to repeal the New Deal, or, worse, as a way to restore the states's rights of Jim Crow. Modern liberals genuinely believe the federal government can order the states and individuals to do anything as long as it is in pursuit of their larger social agenda. They also want to deter more state Attorneys General from joining these lawsuits.

The AGs should not be deterred, because the truth is that ObamaCare breaks new constitutional ground. Neither the House nor Senate Judiciary Committees held hearings on the law's constitutionality, and we are not aware of any Justice Department opinion on the matter. Judges have an obligation not to be so cavalier in dismissing claims on behalf of political liberty. Under the Constitution, American courts don't give advisory opinions. They rule on specific cases, and the states have a good one to make.

Democrats may have been able to trample the rules of the Senate to pass their unpopular bill on a narrow partisan vote, but they shouldn't be able to trample the Constitution as well.

[Brian Pedaci]

Never before?

Courtesy of PJ O'Rourke

The history lesson

In July, 1798, Congress passed, and President John Adams signed into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance.

...

This historical fact demolishes claims of “unprecedented” and "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty...”

Perhaps these somewhat incompetent attorneys general might wish to amend their lawsuits to conform to the 1798 precedent, and demand that the mandate and fines be linked to implementing a federal single payer healthcare insurance plan.

The other option is to name Presidents John Adams, Thomas Jefferson, James Madison et al. in the lawsuits. However, it might be difficult to convince a judge, or the public, that those men didn't know the limits of the Constitution.

Because the attorneys general research is obviously lacking a comprehensive review of history and the Constitution, I’m providing a copy of the 5th Congress’ 1798 legislation.

CHAP. LXXVII – An Act for the Relief of Sick and Disabled Seamen

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled -

That from and after the first day of September next, the master or owner of every ship
or vessel of the United States, arriving from a foreign port into any
port of the United States, shall, before such ship or vessel shall be
admitted to an entry, render to the collector a true account of the
number of seamen, that shall have been employed on board such vessel
since she was last entered at any port in the United States,-and shall
pay to the said collector, at the rate of twenty cents per month for every
seaman so employed; which sum he is hereby authorized to retain out
of the wages of such seamen.

SEC2. . And be it further enacted, That from and after the first day
of September next, no collector shall grant to any ship or vessel whose
enrolment or license for carrying on the coasting trade has expired, a
new enrolment or license before the master of such ship or vessel shall
first render a true account to the collector, of the number of seamen,
and the time they have severally been employed on board such ship or
vessel, during the continuance of the license which has so expired, and
pay to such collector twenty cents per month for every month such
seamen have been severally employed, as aforesaid; which sum the said
master is hereby authorized to retain out of the wages of such seamen.

And if any such master shall render a false account of the number of men, and the length of time they have severally been employed, as is
herein required, he shall forfeit and pay one hundred dollars.

SEC3. . And be it further enacted, That it shall be the duty of the
several collectors to make a quarterly return of the sums collected by
them, respectively, by virtue of this act, to the Secretary of the Treasury;
and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or
disabled seamen, in the hospitals or other proper institutions now established
in the several ports of the United States, or, in ports where no
such institutions exist, then in such other manner as he shall direct:
Provided, that the monies collected in any one district, shall be expended
within the same.
[...]
APPROVED July 16, 1798.

[Roy Pitchford]

http://volokh.com/2010/04/02/an-act-for-the-relief-of-sick-and-disabled-seamen/

This 1798 statute (5 Cong. Ch. 77, July 16, 1798, 1 Stat. 605) is currently making the blogospheric rounds as purported proof that the 2010 congressional mandate to purchase health insurance from a private company is based on long-established practice. Incorrect.

Sections 1 and 2 of the act impose a 20 cent per month tax on seamen’s wages, to be withheld by the employer.

Section 3 requires that all the withheld taxes be turned over to the U.S. Treasury on a quarterly basis, and that the revenue shall be expended in the district where it was collected. The revenue shall be spent to support sick and injured seamen.

So the Act is totally dissimilar to the Obamacare mandate. In the 1798 Act, the government imposes a tax, collects all the tax revenue, and spends the revenue as it chooses. This is a good precedent for programs in which the government imposes a tax and then spends the money on medical programs (e.g., Medicare), but it has nothing to do with mandating that individuals purchase a private product.

Under section 4, if there is a surplus in a district, the surplus shall be spent in the construction of marine hospitals; the executive may combine the tax revenue with voluntary private donations of land or money for hospital construction. The President may also receive voluntary private donations for relief of the seamen, or for operation of the hospitals.

Section 5 instructs the President to select the directors of the marine hospitals. The directors shall make quarterly reports to the Secretary of the Treasury. The directors will be reimbursed for expenses, but will not receive other compensation.

Today, the 1798 Act is viewed as the beginning of the creation of the U.S. Public Health Service.

The Act is very strong precedent for the federal government imposing taxes and dedicating the tax revenue to medical care for the taxed class. Further, the government may provide the medical care directly, or may cooperate with private individuals for the providing of that care. The 1798 Act thus shows that Medicare, while vastly broader in scope than anything from the Early Republic, is generally consistent with constitutional practice of that period.

The Act certainly did not order seamen to purchase any form of private insurance, nor did it order them to purchase any other type of private good. The Act is a solid precedent for federal involvement in health care, and no precedent at all for a federal mandate to purchase private products.

[Jim DeVito]

You know It might work out for you. I forget who was talking about it on NPR the other day by I will paraphrase...


"If you are young and healthy you can choose not to buy health insurance... 750$ or two percent is much less than a health insurance plan. Then because they can no longer deny you based on pre-existing conditions you can go buy health insurance the moment you get really sick."

Or a readers comment from NPR this morning...

"I wonder if these people would be willing to sign and affidavit releasing ER from treating people in an accident..."

After all we always have been paying for people who do not have insurance going to the ER. I think Metro Health is the biggest provider of ER services to the uninsured in this area. In exchange for that they get a large chunk of our tax money to cover that cost.

and Roy all your links you keep shooting off is nothing more than arguing semantics. At the end of the day the other choice of not having insurance is indeed a tax.

I'll ask you again. Would it not be un constitutional for the supreme court to take away the power of congress to tax us?

[Brian Pedaci]

So there's more of a precedent for single-payer than for mandated private insurance? Good to know, thanks.

[Roy Pitchford]

[sharon kinsella]

I can file a lawsuit because I don't like what you say. People file frivolous suits all time.

No big deal. It's winning the suit that's significant. Also winning, the appeal, and the next appeal.