Constitutionality of Health Insurance Mandate Questioned

www.washingtonpost.com...

I just ran across this article, and it is written by people who worked for Reagan...but it still raises goods points, the one I found to be the most interesting was the idea of Congress imposing a penalty for people not having health insurance is seemingly unconstitutional based on Supreme Court rulings.

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.

reply to post by yellowcard


I wish this had some significance. On the surface it would certainly appear so, but when the Supreme Court is in the pocket of congress and the president, do you think it will make any difference? It seems to me that they would just claim some definitions have changed or something since 1922 and move on with what they wanted to do any way. Are you of the opinion that this will make a difference?

There are two clauses of the constitution that would justify the Health Insurance plan.

First, Congress has the authority to regulate interstate commerce. Clearly the health care industry fits within the real of interstate commerce as defined by the last few decades of Supreme Court Precedents.

Second, Congress has the power to tax and spend for the general welfare. Again, comprehensive health care expenditures coupled with some sort of taxation scheme fits within the general welfare clause.

If you wish to debate this, please pick up a horn book on Constitutional law.

Originally posted by hotpinkurinalmint
There are two clauses of the constitution that would justify the Health Insurance plan.

First, Congress has the authority to regulate interstate commerce. Clearly the health care industry fits within the real of interstate commerce as defined by the last few decades of Supreme Court Precedents.

Second, Congress has the power to tax and spend for the general welfare. Again, comprehensive health care expenditures coupled with some sort of taxation scheme fits within the general welfare clause.

If you wish to debate this, please pick up a horn book on Constitutional law.

I've taken many law classes

The article explains your second point, but says such a plan is unlikely to pass because people don't want a tax hike, the article merely says that you can't "penalize" a company/person on the Federal level for not having insurance. So apparently you didn't even read the article, since it also goes over your first point

If you really wanted to debate this you could have actually read the damn article.

[edit on 22-8-2009 by yellowcard]

Samuel Adams said the ideas of a welfare state were made unconstitutional by the Founders:
“The utopian schemes of leveling (redistribution of the wealth) and a community of goods (central ownership of all the means of production and distribution) are as visionary and impracticable as those which vest all property in the Crown. (These ideas) are arbitrary, despotic, and, in our government, unconstitutional.”

Originally posted by hotpinkurinalmint


Second, Congress has the power to tax and spend for the general welfare. Again, comprehensive health care expenditures coupled with some sort of taxation scheme fits within the general welfare clause.

How does Congress' ability to tax and destroy compel someone to buy insurance?

If you wish to debate this, please pick up a horn book on Constitutional law.

You Statists sure are snippy.

A US Marine's view of the Constitutionality of this plan

reply to post by yellowcard


I also study law and I agree, with your OP and comment regarding that decision. Do you know if that specific decision is controlling on that issue. Honestly, it makes sense that congress couldn't use tax to penalize someone or force them into submission. I wonder though if they could get around this case law decision by creating a tax benefit for those that get the insurance over those that do not.

reply to post by hotpinkurinalmint


You missed the point of the decision, it was concerning levying tax specifically to control certain people.

reply to post by VinceP1974




This guy has firmly has his buttocks resting on his shoulders

BaHHHH

Originally posted by yellowcard
I've taken many law classes

That's neat. Really, it is. I'd love to do that.

But Obama is a Constitutional lawyer. I'm thinking he probably knows about it. You could be right, but I would bet that there's something that the writers of this article are overlooking.

[edit on 22-8-2009 by Benevolent Heretic]

Originally posted by Benevolent Heretic

Originally posted by yellowcard
I've taken many law classes

That's neat. Really, it is. I'd love to do that.

But Obama is a Constitutional lawyer. I'm thinking he probably knows about it. You could be right, but I would bet that there's something that the writers of this article are overlooking.

[edit on 22-8-2009 by Benevolent Heretic]

He knows how to violate it.

Originally posted by ExPostFacto
reply to post by yellowcard

 

I also study law and I agree, with your OP and comment regarding that decision. Do you know if that specific decision is controlling on that issue. Honestly, it makes sense that congress couldn't use tax to penalize someone or force them into submission. I wonder though if they could get around this case law decision by creating a tax benefit for those that get the insurance over those that do not.

Well, that's how they got employers to start covering employees, by not taxing employer health benefits. That's honestly part of the problem in my eyes, people think they have control over their coverage now, when really their employer does (in most cases). I don't know if that decision is a final ruling on this issue, but it would certainly be looked at carefully, otherwise you'd have to overturn the other case. It's been done before, the Supreme Court has gotten pretty liberal.

[edit on 22-8-2009 by yellowcard]

The Powers of Congress

TAXING POWER
Article I, Section 8 gives Congress the power to "lay and collect taxes, duties, imports, and excises." The Constitution allows Congress to tax in order to "provide for the common defense and general welfare."

I can clearly see where the health insurance tax could be seen as providing for the general welfare.

Court has flip-flopped on the issue of whether Congress has the constitutional power to tax in order to accomplish regulatory goals that would otherwise be outside of the scope of its enumerated powers.

Most importantly:

The Court reversed its ban on taxes serving primarily regulatory (rather than revenue-producing) goals in Steward Machine (1937), which upheld a tax on employers designed to encourage states to enact unemployment compensation schemes.

This health insurance tax would be serving to produce revenue to take care of these people's health. It encourages citizens to buy insurance, yes, but if they don't want to, the government will collect taxes for revenue.

I can see how this is totally legal. But I'm no lawyer.

The General Welfare Clause is bunk.

The preamble to Section 8 of Article I is as follows:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

The ways Congress can provide for the General Welfare are provided in Section 8, and they are as follows:

To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;
--And To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The Federal Government can't just blindly call something "General Welfare" and then spend your taxes on it, it HAS to fit in the guidelines of Section 8. Health Care is not a power given.


[edit on 23-8-2009 by Double Eights]

Originally posted by yellowcard

Originally posted by ExPostFacto
reply to post by yellowcard

 

I also study law and I agree, with your OP and comment regarding that decision. Do you know if that specific decision is controlling on that issue. Honestly, it makes sense that congress couldn't use tax to penalize someone or force them into submission. I wonder though if they could get around this case law decision by creating a tax benefit for those that get the insurance over those that do not.

Well, that's how they got employers to start covering employees, by not taxing employer health benefits. That's honestly part of the problem in my eyes, people think they have control over their coverage now, when really their employer does (in most cases). I don't know if that decision is a final ruling on this issue, but it would certainly be looked at carefully, otherwise you'd have to overturn the other case. It's been done before, the Supreme Court has gotten pretty liberal.

[edit on 22-8-2009 by yellowcard]

The Govt didn't construct the policy of employer-based benefits, instead it was high taxes on income that led businesses to try to find a way to compete for workers with better compensation that wasn't taxed.

And health benefits were not taxable (I guess they didn't think of it yet) So a few years later this started to catch on, the IRS put out a rule saying that those benefits would be taxed.

There was an uproar in the population, and Congress passed a law reversing the IRS.

Employer insurance is a "policy" of the unintended consequences of the retarded tax code.

Originally posted by hotpinkurinalmint
There are two clauses of the constitution that would justify the Health Insurance plan.

First, Congress has the authority to regulate interstate commerce. Clearly the health care industry fits within the real of interstate commerce as defined by the last few decades of Supreme Court Precedents.

Second, Congress has the power to tax and spend for the general welfare. Again, comprehensive health care expenditures coupled with some sort of taxation scheme fits within the general welfare clause.

If you wish to debate this, please pick up a horn book on Constitutional law.

Negative.

Congress has the power to regulate inter-state commerce as it pertains to the narrow guidelines defined in the constitution, which means ensuring states to do not tariff each others goods.

The same is applied to general welfare clause, where by congress is only able to enact legislation within the narrow confines of article 1 section 8 of the constitution.

If what you said was true, the constitution would be meaningless as congress would have the power to enact any legislation it felt was in the best interest of the nation, which clearly it does NOT have the power to do. Our founding fathers never would have created a constitution in the first place if this was the case.