Mandatory Insurance is Unconstitutional - WSJ.com »
Posted By tadair919 2 months ago in Political NewsFederal legislation requiring that every American have health insurance is part of all the major health-care reform plans now being considered in Washington. Such a mandate, however, would expand the federal government’s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional.
David B. Rivkin Jr. and Lee A. Casey are two Washington D.C.-based attorneys who served in the Department of Justice for two administrations. They explain in The Wall Street Journal that mandatory insurance is unconstitutional. Any constitutional justification for the mandate must be found in the Commerce Clause that gives Congress the power to regulate commerce.
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tadair919
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Striker1012 months ago
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tadair9192 months ago
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based on the dialogue i've had with members of propeller, i think the typical stance is that it doesn't become unConstitutional until after some guy in a robe tells you.
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In other words, the Bill of Rights explicitly states the federal government can't torture, can't search or seize without a warrant, can't imprison people without a jury of peers, or do anything else not explicitly enumerated within the Constitution.
so, now that we are doing these things, the new strategy is to pretend they are not unconstitutional until _after_ the supreme court tells them so.
since the supreme court does not hear any cases until they are brought to the court and considered, then this pernicious line of thinking would grant government a free pass for failing to abide by the Constitution. they actually think our presidents are given King George-like powers with impunity, opening the door to an array of abuses since it's up to the courts to decide what is written in plain english. -
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tchef2 months ago
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MisterX2 months ago
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tadair9192 months ago
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This piece, printed in The Wall Street Journal on page A23 should serve as a wake up call for those who cite the Constitution ONLY in defense of torture and warrantless spying. The moment an altruistic-sounding social program comes along, people suddenly adhere with a new exception to the rule.
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Essentially, we have four groups of people.
1) Those who believe the Constitution should only be applied to the Bush administration.
2) Those who believe the Constitution should only be applied to the Obama administration
3) Those who don't believe we should follow the Constitution.
4) Those who believe everyone should obey the Constitution, no matter what the scheme is.
It's important to point out that people who fall into the 1-3 camps usually remain willfully ignorant of the Constitution in the first place, which, of course, allows them to carry out these beliefs.-
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Endoscopy2 months ago
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There are a couple of other groups.
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5) Those who misread the constitution believe that the Bush went against the constitution.
6) Those who misread the constitution believe that the Obama is going against the constitution.
The problem here is that we need to carefully read the constitution to make sure about what is or is not constitutional. A lot of people have been in group 5 for quite a while. If that was a fact Bush would have been impeached as soon as the Democrats took congress in 2006. -
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deathray2 months ago
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if the mandate requires that insurance is paid for, the individual mandate should fall under the commerce clause, because the payment is not to the government, but to a private insurer. this makes it commerce, not a tax.
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any penalty might be construed as a tax, but i'm legally out of my depth here.
subsidizing those who can't pay, or participate in a public option program, aren't taxed for their health care, and pay the healthcare into a fund like medicare's.
finally, i'm not so sanguine as messers. rivkin and casey are about the demographic breakdown of the uninsured...and there is no mention of the underinsured in the opinion piece.-
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tadair9192 months ago
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some call the commerce clause "the everything clause" in law schools, used by centralizers to justify almost any conceivable federal intervention.
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it was originally intended to prevent interstate tarriffs. ironically, today, we can't even buy health insurance from another state.
if the commerce clause was to be used properly today, it would be used to eliminate said restriction.
see also: http://www.csmonitor.com/2009/0914/p09s01-coop.htm... -
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icono12 months ago
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Great article and very telling of what is to come.
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The following form the article is very true;
"The mandate's real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy—imposed on generations who are already stuck with the bill for the federal government's prior spending sprees.".......
.....The young will be forced to pick up the Govt tab.
However, I don't think a minor and insignificant fact like the unConstitutionality of HR3200 via Section 1 Article 8 will get in the way of DC using 'Reconciliation; passage by a bare majority, or more politely; bringing federal policy in line (reconciling it) with the budget.' to force the bill through and passed as law. -
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calitennflo2 months ago
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"The young will be forced to pick up the Govt tab" This is the sort of thing that proves the older generation failed. Of course...the underlying reason is as usual...physics, plus a government that does not earn their pay. (just compensation?)
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Beau78902 months ago
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tadair9192 months ago
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first of all, a federal law prohibiting the purchase of _anything_ is unConstitutional. being bunny rabbits, pink bows, or nuclear arms.
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but if the state for whatever reason changed their laws so it was actually legal to buy nuclear arms, then SCOTUS has held similar assignments as "clear and present danger."
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moxxxxxxxxxx2 months ago
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We the people (the government) end up paying one way or another. If you choose not to be responsible and purchase insurance the government will pick up the tab when you get sick, become disabled, or have an accident that requires treatment. A very small minority have enough assets to pay for their healthcare out of pocket. And those who do, have the sense to pay for health insurance to protect their assets. If you are an irresponsible citizen and go without health insurance simply because you do not want to pay for it then the government MUST step in and make you buy it. Is everyone else suppose to step in and pay your medical bills? You certainly have the right to neglect yourself, but you don't have the right to place eveyone else at risk by spreading infectious diseases or living among the rest of us with impairment that can be treated. You share this space with others. It ISN'T just about you.
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oldslowjim2 months ago
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This is a chicken or the egg scenario. Why does the government or even private insurance company have to pick up your tab if you don't have insurance and can't pay? The "right" to health care is not enumerated in any of the state or the federal constitution. Where did it come from? If you assume this is a "right" under the constitution then the government also has a duty to pay for it. That means everybody must pay one way or the other.
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Mandates are a very slippery slope especially when you use the argument that isn't right for some to pay for others. Why should the rich pay more to subsidize someone else? How do you justify a progressive income tax system with this argument? Why didn't the government simply mandate that everyone buy a GM product? Why didn't the government mandate that 401k's and IRA's must invest ten percent of the money in AIG, Goldman Sachs, GM, and Chrylser? -
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rimbaud2 months ago
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Do you ever cringe when you think that your young adult children are going without health insurance? One serious illness and you know you could not deny paying for their care. Will you have go into debt or face bankruptcy because they didn't buy health insurance? It might be smarter to be proactive and buy them health insurance, now, eh? ...even if it is an intrusion into their private adult lives and their own priorities. You are protecting yourself.
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tchef2 months ago
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If you don't want a mandate requiring everyone to be covered then what do you want? The goal of health care reform is to provide coverage to every citizen. To achieve that goal you will have a mandate or government supplied heath insurance. So which is it? Your going to pay one way or the other. Which will be the better choice. And if you say none then I must remind you that at this current time we are already paying for those who are not covered. As well as those who are not citizens.
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tadair9192 months ago
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that was the whole idea of forming a federation, to avoid a central planner. because if one state screws up, then there are 49 other models to look at.
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for example, we now know that states that have capital punishment are also the states that have the highest violent crimes. (states that have ridden themselves of the death penalty, on the other hand, have lower rates.) look at california. they're about to go bankrupt. that's a model we can try not to follow. NH has the lowest state and local tax burden in the U.S., the second-lowest level of dependence on federal spending in the U.S., the lowest crime levels in the U.S., and one of the lowest projected budget shortfalls for 2010.
even if you didn't believe in the Constitution, wouldn't you at least want to socialize health care one state a time in case it doesn't work?
if you think it will be a boon to the economy, then maybe we can start with california. -
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tchef2 months ago
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I think that it may help the economy. It may put small business on a more level playing field for competing against big business for qualified employees. I don't believe in mandates. I don't think they will work or be enforceable. I think that a socialized solution would be more effective, IE a government option. The problem is how to fund it. But that's also the problem for every solution at this point.
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rimbaud2 months ago
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The goal of the mandate is to broaden the insurance companies' pools of subscribers. The insurance companies want the government to push more healthy people to them, because they are betting that the influx of healthy subscribers will offset their expenses in having to take on, or keep, their sick ones and stop denying their claims.
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Endoscopy2 months ago
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Why should the wealthy or very health be covered. Just because you think it is a good thing? Why should you think they should be forced to have it. Why not concentrate on those who want it but can't afford it? Those are the real ones in need. Why not just concentrate on just them?
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BrianBenenhaleyComment removed: Hard Banned
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Sageparadox2 months ago
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I dont think health insurance should be manatory. Hell, I dont think it should be manatory to have car insurance. Not many people complained about that one. Just call it a driving tax provided by our friend the insurance special interest in congress. Some people say driving is a privledge (some how owing a gun is a right) but I say having good and affordable health coverange should be right for all Americans and there families. If the corporate insurance companies cant do it, I say damn right bring in a public option, and if the public option runs the insurance companies out of business, so be it.
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gwhiddon2 months ago
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About that mandatory car insurance - I'd bet people would be complaining if the states mandated that car insurance cover oil changes, tire rotations, the cost of gasoline, et al.
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No one could afford to have a car if we had to pay premiums for that.
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fjgalt2 months ago
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The government determines that we should be eating more vegetables, so it will pass a law mandating that x% of our salaries should be spent on vegetables?
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The government determines that exercise is good for us, so will it pass a law that we must purchase gym memberships, or buy exercise equipment?
Of course, this is silly, right? But, if we consider it within the federal government's purview to force people to buy medical insurance, what's to stop it from doing more?
The government wants to force young people -- those people who haven't accumulated any wealth, need to save for college educations, their first home, their young children's care, etc. -- to surrender a portion of their meager earnings so that others can get health insurance, those others who may have spent their money on the nice things in life -- big screen TVs, SUVs, vacations, dining out, etc. -- instead of health insurance.
Not only unconstitutional, but immoral. Stealing from some for the benefit of others. -
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fiftynine2 months ago
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Let me see if i have this right..The government can require you to have car insurance..wear seat belts..wear helmets...Take drug test..do many other things that we accept and support and no one has a problem with that,but if we are required to carry health insurance,that will probably be on a sliding scale according to income,that will keep people healthier and therefore not as much of a burden on all of us...How is that unconstitutional and how exactly is that a bad thing?
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I mean like car insurance,isn't that to make sure someones losses (illness) are covered in case of of an accident (Illness)so that cost isn't past what an individual can pay or have passed on to the rest of us..If we are forced to pay that for the better good then it only makes sense that everyone should have health insurance so someones cancer treatment isn't just passed on to the taxpayer because that person can't afford it.-
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chevydog2 months ago
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I tried to think about that a little. Some thoughts:
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Auto insurance mandates are state things. I seem to remember something about all powers not given specifically to the federal govt being reserved for the states.
Personally at least, I can rationalize car insurance mandates. Without them, it's possible that a particular party can come out of a situation less than economically whole because of some event for which they have no responsibility. This is clearly inequitable from a legal standpoint. In reality, that can happen anyway; but it is rather rare.
I really don't see a parallel situation in health care. My health or lack of it is not due to anyone else's actions. So I have a hard time justifying mandatory health insurance.
You can make (to me a weak) case that without health insurance "we all" pay for someones emergency room trip. But IMHO that's just a definition of how things work. All the institutions that transfer wealth (govt, businesses) are nothing but structured "pass through" conduits. Money comes in from one group of people; and gets transferred out to another group. I just don't see a direct enough link between those who provide the money and those who receive it to justify the "we all pay" thinking.
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rimbaud2 months ago
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If there were no health insurance, we'd go back to those simple days when you paid your doctor out of pocket, and he self-adjusted his fee based on your ability to pay (he figured he could make-up any shortfall up by charging his rich patients a little more). If you had a financially catastrophic illness, you died of it with your doctor's palliative care.
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vader822 months ago
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Very good article, this action would not only be unconstitutional, but asinine. I would not pay for health insurance if it wasn't provided from my employer, I have been to the doctor once in 8 years. I can't help but think of all of the money that would have been essentially flushed down the drain in insurance premiums. True, I could have had a catastrophic illness in that time period and bankrupted myself trying to pay for it, but that is my prerogative. The government has no place forcing its citizens to obtain health insurance.
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mrlecher2 months ago
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Requiring people to have health insurance has NOTHING to do with the Constitution, so it can not be unconstitutional.
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If you want to drive a car, you have to have car insurance. It is NOT unconstitutional. And give us that State's Law crap, because such a sword cut both ways and then State's can enact gun bans and NOT be unconstitutional by that same ignorant logic. By FEDERAL law, you must be treated if you enter an emergency room, so eventually BY FEDERAL LAW, you must be covered by health insurance. Unless you want to change the law so emergency rooms do not have to treat you, EMT's don't have to get you, etc...-
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vader822 months ago
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"Requiring people to have health insurance has NOTHING to do with the Constitution, so it can not be unconstitutional."
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The constitution outlines the powers and limits of power bestowed upon the federal government, therefore it has EVERYTHING to do with the constitution. Comparing requiring auto insurance to requiring health insurance is apples and oranges, the reason behind auto insurance would be to cover potential damages brought on by an accident, there is no comparison. You speak of federal law requiring emergency care, this is true, but said person is still financially responsible. If they don't pay then it will count against them.
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amazed2 months ago
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As the article states, however, if we are to keep the "no exclusions for pre-existing conditions" clause, then mandatory insurance is the only way to go, otherwise, who would bother to buy it until they needed it?
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I am also troubled that no provision is being made for HSA's. I have one of those and, although the major medical portion is still ridiculously expensive, it doesn't feel as if I am totally flushing all that money. I can also use the medical savings account for health related things that are not covered by my insurance -- such as dental visits, eyeglasses, hearing aids, etc.-
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fjgalt2 months ago
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Why bother purchasing insurance indeed? Wait until you have a major illness or accident, then buy insurance from an insurer who can't refuse you. For such a scheme to work, everyone has to be forced into it. And that, of course, alters everyone's plans for the goals of their hard-earned income.
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My old boss once proposed the medical savings accounts but most of the employees (about 40 women, 4 men) said no. About a dozen of them made weekly visits to one health practitioner or another (acupuncturists, alternative health, massage therapy, etc.) and the MSAs wouldn't cover that. Our health plan covered all those things.
I asked my boss to let me out of the company's health plan and give me the money instead but he didn't. The money that the company paid for my health coverage would have paid my mortgage (over 20 years, over $100,000).
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MisterX2 months ago
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Bush silenced many complaints through intimidation (remember Valerie Plame and "you're either with us or against us"?). Perhaps BHO should follow suite and do some intimidating of his own?
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In any case, two wrongs don't make a right. -
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dxxy4u2 months ago
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The ONLY thing the Constitution says that the Government can not do, and that make it mandatory that everyone must belong to a certain religion, like it was in Britain when the Constitution was Written. Everyone had to be Catholic. Other than that, the Government can mandate anything it wants, including everyone must have Health Insurance, like everyone must pay Taxes.
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