Posted on 08/22/2009 8:11:00 AM PDT by wingsof liberty
One of the more troubling components of the ObamaCare bill wending its way through the House is the inclusion of individual mandates to carry health insurance. What gives Congress the power to dictate that choice to American citizens? A single document enumerates Congressional power, and former Department of Justice attorneys David Rivkin and Lee Casey have some trouble finding that power in it. They argue, with appropriate citations of precedent, that HR3200 and any other bill that attempts to impose mandates will violate the Constitution: Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach. The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate. The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states. Most states now require drivers to have auto insurance before issuing drivers licenses, car registrations, or both. However, that doesn’t apply here for three reasons. First, that power rests with the individual states, as they are the licensing authorities and not the federal government. Second, driving is not a right but a privilege, which gives access to state-owned roads in exchange for a demonstration of competence and appropriate safety and insurance preparation, so the state can and does set conditions on that privilege (too many, but that’s an argument for another day). Third, because the insurance is conditioned on that privilege, it only affects a portion of the populace. The states could not demand universal auto insurance on every man, woman, and child in their state. But how about using the tax code to enforce the mandate? Congress has the power to tax, as we know all too well, and they can create some severe penalties for failure to comply. In fact, HR3200 does just that now. However, as Rivkin and Casey explain, any tax that seeks to impose policy that goes beyond the limits of the Commerce Clause is also unconstitutional: Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power. In other words, individual mandates are unconstitutional, regardless of whether they’re explicit or buried in tax policy. If that’s true, what happens to universal coverage? It fails, because not everyone wants to buy health insurance now, and that’s likely to be more rather than less true after ObamaCare passes. As we saw in Maine, when the government offers a public plan and forces community pricing and unrestricted access on private insurers, the people most likely to enroll will be the infirm, whose costs will unbalance the risk pools and drive up premiums across the board. That will make insurance even more expensive, which will discourage rather than encourage enrollments, and do nothing at all to lower public costs of healthcare – the entire stated reason for ObamaCare, other than universal coverage. The only way to get mandatory universal coverage is conversion to a single-payer system, which Congress also doesn’t have the power to do without amending the Constitution. Otherwise, free will in a free system dictates that people will make choices with which many disagree, and that includes the choice not to buy health insurance.
Read more at http://hotair.com/archives/2009/08/22/can-congress-force-me-to-buy-health-insurance/
Sorry about the lack of paragraphs. Didnt catch that
. WILL THE PLAN PUNISH AMERICANS WHO TRY TO OPT OUT?
What the bill says, pages 167-168, section 401, TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE:
‘‘(a) TAX IMPOSED.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of—
(1) the taxpayer’s modified adjusted gross income for the taxable year, over
(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer. . . .”
EVALUATION OF THE PASSAGE:
1. This section amends the Internal Revenue Code.
2. Anyone caught without acceptable coverage and not in the government plan will pay a special tax.
3. The IRS will be a major enforcement mechanism for the plan.
From what I understand, you’ll be “allowed” to keep your current insurance unless your policy changes in any way. Of course, everyone’s policy changes every 6 months or whatever their term is. At that point, you’ll be basically conscripted to the government plan.
Can we file a class action suit on behalf of the American people against the Administration and Congress? Violation of our rights!
Liberty? Living or dying at the whim of the Supreme Court?
Why does that worry me?
If you don’t have health insurance, will they throw you in jail? And then, won’t they give you free health care?
RE :”So in a worst case scenario, it could be the Supreme Court which saves us from this “Obamination”
Dont see it happening.
In the case of forcing us to have health insurance, wouldnt make any sense to rule that unconstitutional anyways since the federal government forces hospitals to provide services without payment and gets away with that. SCOTUS would have to stop both.
The IRS is being given more and more power, not less. They are including the idea of telling them how many guns you have in your home. Communism at its best. These people don’t realize why the USSR failed and are bringing their method of governing here. Because you disagree with your politicians.......they are going to tax you? Unbelievable!
And there is the absolute beginning of RWII! That's my line in the sand...when the fedgov requires me to buy health insurance.
Under Obama we now use the techniques of Sharia Law in America.
Congress can force any American to buy insurance from a single payer, they can force any American basically to do anything, like jump through a flaming hoop if they like. The key is if a super majority that we collectively elect lean towards Marxism, they can (and are in-progress) paper-cutting the USA to shreds. The constitution will mean nothing with a dem super majority for enough years to phase out the court conservative constitutionalists and bring in USA-shredding louts. They are always, ALWAYS, on the lookout for ways to nick, tick and prick the US Constitution. I think back to all the hue-n-cry from the Hillary!’s a few years ago to abolish the Electoral College. Perhaps they will make another putsch to try and change how the president is elected prior to 2012.
I'v been looking for some time to move my assets off shore. This would be the final straw.
How about with malicious attempt to defraud the citizens of the United States.
I am a health insurance agent.
I know lots of people who decline or refuse to purchase health insurance.
That is their right, to do so.
We need to let such people know that bankruptcy court, is the place to go, if they end up wishing they had made a different decision.
Risk is part of life.
How we handle risk should be up to us.
Those who insist on taking such financial risks should NOT be bailed out, by the rest of us!
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