Legal setback to US Healthcare Package

[lawrocket 3]

After the healthcar reform package was passed and signed, a bunch of states got together to mount a Constitutional challenge to the legislation. As background, Article II, Section 8 of the Constitution provides that Congress is empowered to regulate commerce among the several states. This was narrowly read for the first 150 or so years since the Constitution was ratifed to mean interstate issues. Starting with Teddy Roosevelt, someone came up with the idea of using the commerce clause to regulate personal conduct (a police power traditionally reserved to the states). Under Roosevelt, the feds passed a law regarding drugs to regulate them.

By the time FDR came along, everything that anybody could do was regarded as interstate commerce. The extension of federal government involvement in private interstate activities. Wickard v. Fillburn (1942) expanded the authority to include purely intrastate activity (Fillburn grew more wheat that the feds wanted him to grow and kept some for himself with no intention of selling it. Because it meant he wasn't going to be buying wheat, it affected interstate commerce and therefore Congress could regulate it.

In 2005, Gonzales v. Raich was decided, wherein the SCOTUS deemed that Congress can regulate an individual's cultivation for personal use of marijuana because a black market exists. Fundamentally, if I piss in my backyard, such activity can be deemed a federal offence, because it could affect the water system or environmental regulations.


Now - the present case is about Section 1501 of the Patient Protection and Affordable Care Act, which requires a person to purchase insurance. The argument of the Plaintiff states is that the Commerce Clause has not been and cannot be extended to persons who choose NOT to participate in an economic activity - non-partitipation in commerce is not commerce! Because this exceeds the Commerce Clause, the Necessary and Proper Clause cannot be invoked.

The Department of Health and Human Services is the Defendant, and the instant ruling is on a motion to dismiss (in federal court, this is a legal "so what?" - stating that assuming every fact the plaintiffs say is true, there is no legal remedy or wrong). Procedurally, HHS alleges that Plaintiffs lack standing and that because the provision does not take effect until 2014 it is not yet "ripe" (meaning that the court's judgment would be merely advisory). The court ruled against the HHS.

As a matter of substance, the HHS states that because everybody at some point or another will require medical service, this is a matter of interstate commerce and that this requirement is cool under the Necessary and Proper Clause. Also, the penalty for non-coverage is allowable under the General Welfare Clause.


The standard of the court's ruling is merely that the Plaintiffs must state a viable cause of action.

Here, the Court ruled that Congress cannot regulate idleness under the Commerce Clause because it may only regulate "activity" and not inactivity. Also, the power to tax somebody cannot extend to taxing an activity that cannot be regulated. A constitutional challenege is viable, in the opinion of the court, for the regulatory structure that imposes a tax to force activity, thus making the activity fall under the Commerce Clause.

"No reported case from any federal appellate court has ever extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side's position, this Court cannot conclude at this stage that the Complaint fails to state a cause of action."


Here's a link to the opinion:
http://online.wsj.com/public/resources/documents/080210healthcareop.pdf

I agree with the court. States can do this. The Federal Government cannot regulate economic inactivity.

[StreetScooby 5]

This brings a whole new, and better, definition of hope to the table.

We are all engines of karma

[FreeflyChile 0]

In a sense (and maybe what defendants have argued for this motion) is this is the same thing as Wickard v Fillburn.

By opting not to buy the insurance, no money changes hands and thus it affects commerce.

I haven't read the opinion and it's been a while since I've ventured out of the IP realm, but this is interesting.

I think the Court makes sense in the part you posted - I should take the time to read the rest when I have time to breathe...

[lawrocket 3]

The difference with Wickard v. Fillburn is that Fillburn affirmatively did something in growing wheat.

This is different. Let's say that Fillburn had never grown wheat and he was required to do so and fined if he didn't. The government would argue, "If he would have done as required it would have been interstate commerce, so we can regulate it."

It's like going into a house, pulling the drunk guy out and arresting him for being drunk in public.

My wife is hotter than your wife.

[Lucky... 0]

I do hope they kill that provision, the one that mandates is purchase or fine. I think it will be killed and I'm not sure the Dems will be too upset if it does.

[lawrocket 3]

If that provision is cut then the funding for it is bye bye. And the entire thing that the government wanted to do isn't available.

My wife is hotter than your wife.

[Lucky... 0]

Quote

If that provision is cut then the funding for it is bye bye. And the entire thing that the government wanted to do isn't available.

WHat says that? The funding provisions don't hinge on each and every element. On a state level, the Cardinal football stadium was funded via an election for a bond, then 911 happened and the FAA decided the stadium was too close to the landing patterns for it, so the venue was crubbed but the funding stayed. Then they voted on the venue as I recall.

You assertion is hope compounding hope, but keep up the good work, maybe your dream of status quo millions w/o HC will stay a reality.

[lawrocket 3]

EMTALA ensures that the millions you allege receive HC.

This bill is not about providing HC. It's about funding it. That's why it's called the "Patient Protection and Affordable Care Act."

Take out the primary funding mechanism and what do you think will happen? Oh, yes. You're dream. Tax everyone until there is nobody but poor people, thus fulfilling the socialist dream.

My wife is hotter than your wife.

[Lucky... 0]

Quote

EMTALA ensures that the millions you allege receive HC.

This bill is not about providing HC. It's about funding it. That's why it's called the "Patient Protection and Affordable Care Act."

Take out the primary funding mechanism and what do you think will happen? Oh, yes. You're dream. Tax everyone until there is nobody but poor people, thus fulfilling the socialist dream.

Hmmm, wonder why you didn't visit my taxation thread, "History repeats itself?" Oh yea, it illustrates how your uber Capitalist nightmare comes to life when taxes are cut. Total fucking disater wrapped in denial in the name of greed.

So it's your hope that all the directives mandatied in the HC law will fall to shit as soon as the Nazis chip away at provisions. Neither your or I have read all 2k+ pages, but it is your burden to illustrate how funding and mandates are absolutley tied. Not to mention the pre-existing clause, taht isn't a funding mandate. I don't see this as the boy with his finger in the dyke where if 1 drop leaks the entire thing breaks and all the water leaks out. That's your dream unsubstantiated with anything but conjecture.

[kelpdiver 2]

it's pretty fucking obvious stuff.

You can't have a ban against preexisting conditions without a requirement that everyone pay for coverage. Otherwise, the healthy will stay uninsured until they have a need, and the subscriber pool will be substantially more sick than the current one. Smart skydivers will have the enrollment line on speed dial and wait to call from the ambulance after they femur in.

[pirana 0]

That's a big bingo. Can't do things like eliminate pre-x clauses and guarantee issue everybody coverage for the asking unless everybody is in. The anti-selection will make the system financially untenable at the current cost of care.

Did I mention they have done nothing to address cost of care? Anybody wonder why that is? Does it leave any doubt which parties still exert the most influence when instead of addressing cost of care as a reform issue the emphasis is on simply extracting more money from the consumers?

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[kelpdiver 2]

Quote

Did I mention they have done nothing to address cost of care?

The First Lady has taken on childhood obesity as her pet project. It's something, though the matter is serious enough that it should be a focus of the full Administration.

I wish there were a practical way to strongly encourage (read multi hundred dollar tax incentive) Americans to participate is at least one athletic event per year: 10k walk or run, 40k bike, hike a peak, whatever. It would spawn a new generation of race directors that could address the non athletes. Getting people to do just a minimal amount of training for an event will force the first step to a better lifestyle. But I can't see how to do it that doesn't cause as much trouble as it saves.

[billvon 3,009]

>I wish there were a practical way to strongly encourage (read multi hundred
>dollar tax incentive) Americans to participate is at least one athletic event
>per year . . .

That, I think, is one of the more important reasons to push for bike lanes, bike-compatible development etc. It solves two problems at once - a very serious obesity problem and a problem with traffic and open space. (40% of all land in Los Angeles is dedicated to cars.)

[kelpdiver 2]

Quote

>I wish there were a practical way to strongly encourage (read multi hundred
>dollar tax incentive) Americans to participate is at least one athletic event
>per year . . .

That, I think, is one of the more important reasons to push for bike lanes, bike-compatible development etc. It solves two problems at once - a very serious obesity problem and a problem with traffic and open space. (40% of all land in Los Angeles is dedicated to cars.)

After 3 or 4 years of court delays due to not fully dotting the i's on EIRs, SF will finally be able to start moving forward on sweeping improvements for bicycle transportation. Though as I note in the other thread, the theft problem is still fairly crippling.

[kallend 2,033]

Quote

>I wish there were a practical way to strongly encourage (read multi hundred
>dollar tax incentive) Americans to participate is at least one athletic event
>per year . . .

That, I think, is one of the more important reasons to push for bike lanes, bike-compatible development etc. It solves two problems at once - a very serious obesity problem and a problem with traffic and open space. (40% of all land in Los Angeles is dedicated to cars.)

Yeah, but biking is a vast left wing conspiracy to promote a UN takeover of the USA.

...

The only sure way to survive a canopy collision is not to have one.

[Southern_Man 0]

Quote

Yeah, but biking is a vast left wing conspiracy to promote a UN takeover of the USA.

I don't know about biking, but at least in France running is seen as a right wing activity:

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/06/AR2007070602104.html

"What if there were no hypothetical questions?"

[pirana 0]

So why is it we can be forced to buy auto insurance, but it is being argued as unconstitutional to be forced to buy health insurance?

" . . . the lust for power can be just as completely satisfied by suggesting people into loving their servitude as by flogging them and kicking them into obedience." -- Aldous Huxley

[kelpdiver 2]

Quote

So why is it we can be forced to buy auto insurance, but it is being argued as unconstitutional to be forced to buy health insurance?

you're force to buy liability insurance for your car...any damage you suffer in a caused accident is still your problem. Too many uninsured drivers were crashing into others and not being able to cover. Of course, the insurance companies were motivated to fix this as well.

not carrying health insurance, from the first order perspective, doesn't impact others. Of course, the full picture is far from black and white.

[Southern_Man 0]

Quote

So why is it we can be forced to buy auto insurance, but it is being argued as unconstitutional to be forced to buy health insurance?

Driving is not a right. You do not have to buy auto insurance.

"What if there were no hypothetical questions?"

[lawrocket 3]

Quote

So why is it we can be forced to buy auto insurance, but it is being argued as unconstitutional to be forced to buy health insurance?

Because these are requirements of the individual states. The states are empowered to do all kinds of things that the federal government is not supposed to do. If a state wants to become wholly socialist it can do that, so long as its rules and regulations do not interfere with the rights of other states.

It's a quesiton of federalism - a federal government designed to unite the states.

My wife is hotter than your wife.

[StreetScooby 5]

Quote

It's a quesiton of federalism - a federal government designed to unite the states.

Many, many people in the USA don't understand this. It's a continuing failure of our education system.

We are all engines of karma

[masterrig 1]

Quote

Quote

So why is it we can be forced to buy auto insurance, but it is being argued as unconstitutional to be forced to buy health insurance?

Driving is not a right. You do not have to buy auto insurance.

Only if, you want to re-new your driver's license, license tags and inspection sticker, here in Texas. Also, if and when someone gets stopped by police, they are asked for a driver's license and proof of insurance. If, you can't show proof of insurance, you get a ticket. You don't have to buy auto insurance but they can sure make it rough on you for not.


Chuck

[kelpdiver 2]

Quote

Quote

Driving is not a right. You do not have to buy auto insurance.

Only if, you want to re-new your driver's license, license tags and inspection sticker, here in Texas. Also, if and when someone gets stopped by police, they are asked for a driver's license and proof of insurance. If, you can't show proof of insurance, you get a ticket. You don't have to buy auto insurance but they can sure make it rough on you for not.


Chuck

His point is that you only have to buy car insurance to exercise the privilege of driving on public roads.

[lawrocket 3]

Quote

That, I think, is one of the more important reasons to push for bike lanes, bike-compatible development etc. It solves two problems at once - a very serious obesity problem and a problem with traffic and open space. (40% of all land in Los Angeles is dedicated to cars.)

There are a couple of problems with this, Bill. The first is tht bike lanes do not generate revenue for the states and municipalities. A person buys a bike and uses it without paying for fuel, etc. Governments do not like things that do not bring in revenue so this is out.

The second problem is that bike lanes do not mean people will use them. There are sidewalks around, too, and people drive cars to mailboxes. Having a resource available doesn't mean people use them. We've got produce sections in grocery stores that are wholly underutilized.

People know what to do to be healthier. They won't do it. A situation where they face no financial consequence for failure to take care of themselves will serve to make it worse.

My wife is hotter than your wife.

[billvon 3,009]

>The second problem is that bike lanes do not mean people will use them.

Of course. It merely makes it _possible_ to use them for bicycle transportation.

>People know what to do to be healthier. They won't do it.

Well, not true in general. I do, and I know a lot of other people who do as well.

We can divide the world into three groups - people who will bike no matter what, people who will never bike for any reason, and the people who are undecided on the matter. I think the third group is pretty large, and can be encouraged to use alternative transportation if the facilities exist to do so.