Posted on 10/18/2010 9:40:03 AM PDT by Libloather
Universal Health Care: Is It Constitutional?
Garrett Epps
Oct 18 2010, 11:22 AM ET
The heart of the challenge to the new federal health-care program is this image: an individual is doing nothing at all, bothering no one, when suddenly a federal bureaucrat appears and requires him or her to buy a commercial product or pay a tax. The program's opponents claim that, in the guise of regulating commercial activity, it regulates "inactivity." This, it is claimed, is unprecedented and tyrannical.
Three federal courts so far have taken a first look at the argument. One, in Michigan, rejected it. The second, in Virginia, indicated that it needs careful consideration. The third, Thursday's ruling from a District Court in Florida, bought it hook, line, and sinker.
When I read the argument about whether the government can regulate "inactivity," though, I can't help thinking about Ollie's Barbecue in Birmingham, Alabama. Ollie's was a neighborhood eatery. It never advertised. And when Congress passed the Civil Rights Act of 1964, Ollie's owner went to court to argue that Congress could not possibly regulate his private, local business and its personal decision of whom not to serve. A three-judge federal panel agreed: "No case has been called to our attention... which has held that the national government has the power to control the conduct of people on the local level because they may happen to trade sporadically with persons who may be traveling in interstate commerce."
At the time that decision was rendered, those arguments were taken quite seriously. Discrimination on private property was "private," it was argued, even when that property was open to the public; unless the owner chose to involve the property in interstate commerce, Congress was overstepping the Commerce Power in trying to regulate it.
(Excerpt) Read more at theatlantic.com ...
Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore. He lives in Washington, D.C.
The pointy heads just started working on this?
No -— but does it matter to the SCOTUS who will eventually decide this matter??
Citizens are not commerce. The last time people of the USA were treated as commerce was during the period of buying and selling slaves.
My line in the Sand is Drawn... when they try to Enforce this boondagle I think they will be unpleasantly surprised by the amount of blood the Citizens (not subjects) of this Nation are willing to shed.
TT
If you purchase nothing, you owe no sales tax.
If you own no property, you owe no property tax.
If you do not drive a car, you are not required to purchase auto liability insurance.
But if you are alive, you owe the government a medical-insurance tribute.
“If you have no income, you owe no income tax.
If you purchase nothing, you owe no sales tax.
If you own no property, you owe no property tax.
If you do not drive a car, you are not required to purchase auto liability insurance.
But if you are alive, you owe the government a medical-insurance tribute. “
That’s unless you’re Muslim or Amish.
Unfortunately decades of precedents and tax credits that reward positive behavior (many Republicans like these too) sets the stage for a reverse tax credit that makes you pay more income tax for being uninsuranced. (I know Obama claimed it's not a tax)
And then there is always the argument that both parties mandate that emergency rooms must provide free treatment, that is Democrats favorite. If you can force a private business to provide free service you can expect to be forced to buy 'insurance' to pay for it so it is not free, although Obama-care like all socialized medicine laws force you to buy insurance you dont need or cant use to pay for others. But it's the judical precedents that kill you.
I can't imagine this being overturned by today's judges.
I've gone Amish.
The tax penalty imposed by the new legislation on individuals who refuse to insure their families really isn't based on something most of them can choose to do or not to do. It's based on something they almost certainly do not, and probably cannot, refuse to do: consume health care services. No matter how thrifty and antisocial any of us may be, no matter how devoted to homeopathy and Yoga, eventually virtually all of us will end up in an emergency room, hospital, or hospice.
The implicit equation in this is that "insurance" = "health care".
That is phony, and a lie.
When I had a vasectomy (without insurance coverage), I paid for it.
When my wife had carpal-tunnel surgery (without insurance coverage), I paid for it. When the clinic doing the surgery found out we were self-paying, the bill went from $5500 to $3500. Were they just feeling sorry for us? I doubt it.
So now, I will have to pay the penalty AND pay for the service?
'Splain to me how that makes sense...
And here is where the argument fails. If someone who doesn't have insurance gets sick, send them a bill.
The mandate is solely a means to get around an inherent structural problem with not allowing companies to block coverage to those with pre-existing conditions - if that is allowed, then a person could just wait until they get sick to purchase coverage. This weasel twists that fact beyond recognition.
There is something particularly bizarre about the assertion that forcing people to buy a product or service is “regulating interstate commerce” when said product or service cannot be sold across state lines.
The intent of the Inter State commerce clause was to regulate commerce. Commerce involves a willing Buyer and a willing Seller. Absent either you have neither. In fact you have a co-erced Buyer therefore it is not commerce.
ObamaCare is a jizya or Muslim tax on non-musoims because Muslims are exempt. It is an equal protection issue where Christians and non-muslim should not have to pay this tax.
The American public who watches TV are stupid idiots. Those who watch TV support the muslim.
That's true, if you define "success" in only monetary terms.
It's possible (I don't know) that Ollie's has benefited financially from the mandate that he serve other races.
But what is lost is freedom. Yes, the freedom to serve (or refuse) whomever he pleases. I find it nonsensical that Ollie's would refuse someone based on their skin color, but I also find it nonsensical (and even more unpleasant) that the Feds find it to be their business to regulate it. If Ollie received no federal subsidy for running his restaurant, then he deserves none of their restrictions.
My story was different. Self-payers had higher prices since the companies had negotiators. Of course if the 'self-payer' had no money, they would just bill the county.
Here is the problem with that argument: Just because an activity somehow touches "interstate commerce" in some tangential way, that does not by any stretch mean the the intent of the interstate commerce clause now gives Congress the power to regulate the hell out of it.
The whole reason for the interstate commerce clause is that there could arise some dispute between commercial participants across state lines and it would be necessary for Congress to provide a framework so that commerce could be engaged across state lines in a uniform manner and with uniform rules. The power of Congress to regulate such interstate commerce should always be tempered with the overall guidance that the powers of the federal government are specific and finite and limited and that all other powers and rights are reserved to the states and the people. If you have to stretch to find an interstate commerce excuse for congress to assume a power, then it simply isn't in the intent of the commerce clause.
That was GOOD! BTW is robertpaulsen still around?
Is there a term for going to race based arguments analgous to Godwin’s law about invoking Hitler in an argument.
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