Is it Constitutional to require all Americans to buy health insurance?

[Thunder]

Um...would such a plan..that requires all 350 million Americans to buy health insurance, pass the SCOTUS?

I mean, its one thing to require all drivers to have a license and all car-owners to purchase auto-insurance, but requiring people to buy health insurance simply because they live and breath, may not be Constitutional. :(

Mind you, I am ALL FOR this plan. I want it to pass, with a Public-Option. But it may be over-stepping its bounds.

I hope I am wrong.

[Darth Rotor]

Is it Constitutional to require all Americans to buy health insurance?
Only if a valid statute is crafted and passed, and passes Constitutional tests, would that requirement meet the Constitutional test.

I personally find this penal approach to Health Care ( or is it Health Care Insurance?) reform unpalatable.

DR

[Magyar]

I am guessing it is about as valid a question as asking if it's
unconstititional to require all 1st time home owners to purchase
mortgage insurance

or drivers to purchase liability insurance.

In other words its only related to a constitutional issue in the minds of
tea bagger, libertarian right wing big gummit conspiracy nut jobs.


That said, and as much as I am for UHC, I am with DR on this. This bill is nothing but a big giant scam for the health insurance industry! I think if it stays this way it is going to go the same way as the shift we had from company pentions to 401K.

[Thunder]

or drivers to purchase liability insurance.

In other words its only related to a constitutional issue in the minds of
tea bagger, libertarian right wing big gummit conspiracy nut jobs. .

car owners should have car insurance. they chose to buy a car.

home owners should have insurance..they chose to buy a home.

but this law requires all Americans to buy health insurance from a corporate HMO or the govt., because they live and breath.

this may not pass the SCOTUS. and I totally support the plan. and I am a Social-Democrat. voted for Obama twice. will gladly vote for him again in 2012.

but i still think this current plan may violate the Constitution. :(

[Newtons Bit]

car owners should have car insurance. they chose to buy a car.

home owners should have insurance..they chose to buy a home.

but this law requires all Americans to buy health insurance from a corporate HMO or the govt., because they live and breath.

this may not pass the SCOTUS. and I totally support the plan. and I am a Social-Democrat. voted for Obama twice. will gladly vote for him again in 2012.

but i still think this current plan may violate the Constitution. :(

It definitely violates the spirit of the Constitution as it was originally crafted by the framers. Whether it's unconstitutional by todays interpretation today is a toss-up. Congress is allowed to do pretty much anything it wants by using the commerce clause these days.

[Thunder]

Congress is allowed to do pretty much anything it wants by using the commerce clause these days.

yeah. Inter-state Commerce Clause. Not a huge fan of that law being used to justify pretty much anything.

[Puppycow]

Yes it's constitutional.

The constitution gives the congress authority to levy taxes and to "provide for the general welfare." Taxes are a way to purchase public goods like roads and police. Requiring people to purchase insurance is like requiring them to pay taxes. You can think of it as a kind of tax.

Social security is also the same kind of thing. It's like a required insurance.

[JoeTheJuggler]

but i still think this current plan may violate the Constitution. :(

Under what clause or section of the Constitution?

[Thunder]

Social security is also the same kind of thing. It's like a required insurance.

good point. but Social Security taxes are only required to be paid by folks who have a job.

Health-insurance will be required by all Americans, regardless of their employment status, no?

[JoeTheJuggler]

yeah. Inter-state Commerce Clause. Not a huge fan of that law being used to justify pretty much anything.

If someone is going to bring a constitutional challenge to a law that Congress passed, the burden of making a case is on them to show it is unconstitutional. So again, it's really incumbent on the person claiming the bill is unconstitutional to cite how it is. You can't shift the burden to the other side to prove that it's not unconstitutional.

As for the "Congress doesn't have the authority" argument, I see no problem with it being within the powers of Congress as described in the first paragraph of Article I Section 8:
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 Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

(Also, the end of that section has the famous "necessary and proper" language.)

An attempt to provide access to healthcare to as many of us as possible certainly is part of the "general Welfare".

[JoeTheJuggler]

Health-insurance will be required by all Americans, regardless of their employment status, no?
Not according to the bill passed by the House. In that bill a number of exceptions are made, and one of them is economic hardship.

ETA: According to the Kaiser Family Foundation's summary of the House bill (http://www.kff.org/healthreform/upload/housebill_final.pdf):
Exceptions granted for those with incomes below the filing threshold (in 2009 the threshold for taxpayers under age 65 is $9,350 for singles and $18,700 for couples), religious objections and financial hardship.

FWIW, I agree that a single payer system financed by income taxes would have been a lot better than this health insurance reform approach, but I don't see any constitutional problem with it. On this thread (http://forums.randi.org/showthread.php?t=158820&page=4) (essentially the same topic as the present thread, but with a bit of a misleading thread title), mhaze has been trying to argue that there is an actual serious debate among constitutional scholars on the issue, but I haven't seen any evidence of that. (He has submitted a link to a factcheck.org debunking of a chain letter e-mail making a pretty wild case that the bill is unconstitutional, linked to an op-ed piece by a retired judge who disagrees with the 1942 case that broadened the interpretation of the Commerce Clause, and otherwise just told me google the topic. When I did that, I pretty much only found references to tea-baggers crying "socialism!") It seems that Puppycow's assessment is right.

[Thunder]

Not according to the bill passed by the House. In that bill a number of exceptions are made, and one of them is economic hardship.

well, in that case, it may be okee dokee.

:)

[Brainster]

Yes it's constitutional.

The constitution gives the congress authority to levy taxes and to "provide for the general welfare."

You mean "promote the general welfare". And yes, the ICC has been the thin end of the wedge for the past 100+ years.

[WildCat]

In addition to the other points made, no one is actually required to buy health insurance under the bill. You just pay a small (relative to the cost of insurance) tax penalty if you don't.

It's a joke.

[Ausmerican]

It definitely violates the spirit of the Constitution as it was originally crafted by the framers. Whether it's unconstitutional by todays interpretation today is a toss-up. Congress is allowed to do pretty much anything it wants by using the commerce clause these days.

But you can live and breathe without medical care parky. The insurance isn't because you live and breathe it's because if you stop living & breathing you would like that rectified if at all possible.

[Newtons Bit]

Yes it's constitutional.

The constitution gives the congress authority to levy taxes and to "provide for the general welfare." Taxes are a way to purchase public goods like roads and police. Requiring people to purchase insurance is like requiring them to pay taxes. You can think of it as a kind of tax.

Social security is also the same kind of thing. It's like a required insurance.

Social security is a tax. The service is provided by the government to everyone. It's not a mandate to buy a product.

[mhaze]

Social security is a tax. The service is provided by the government to everyone. It's not a mandate to buy a product.Actually, not it isn't provided to everyone. 40 quarters of paid employment into the SS system are required for one to be registered in it and later receive benefits. Under either self employment or employee status, one is required to pay into the system - but if one did not make the 40 quarters or 10 full years, there would be no benefits. In certain cases (survivor benefits) exceptions exist, such as for the spouse of a person who was entitled to social security.

So in no sense is Social Security similar to a universal mandate. Rather it is a government contract conditioned upon employment.

AFAIR the qualifications for Medicare were similar.

JoetheJuggler says:
On this thread (http://forums.randi.org/showthread.php?t=158820&page=4) (essentially the same topic as the present thread, but with a bit of a misleading thread title), mhaze has been trying to argue that there is an actual serious debate among constitutional scholars on the issue, but I haven't seen any evidence of that. (He has submitted a link to a factcheck.org debunking ...
More precisely, I've been interested in whether Joe could go out and find evidence that was contrary to his prejudices. Apparently not. Or at least not that he's admitting to.

[KoihimeNakamura]

As has been discussed elsewhere: yes.

[Undesired Walrus]

but i still think this current plan may violate the Constitution. :(

So?

Why do you care so much as to whether it is constitutional, as opposed as to whether it is objectively just?

Continuing to focus on what a bunch of guys -however brilliant- wrote up 200 years ago is a recipe for disaster. It's like refering to the Bible before you copulate ("hang on Barbara, Deuteronomy says that we should be doing this on our heads with licorice allsorts jammed up our ears!").

[WildCat]

Why do you care so much as to whether it is constitutional, as opposed as to whether it is objectively just?

Continuing to focus on what a bunch of guys -however brilliant- wrote up 200 years ago is a recipe for disaster. It borders on religion.
So we should just ignore the law in favor of what is politically popular?

Not that I think these bills are unconstitutional, but suggesting we ignore the supreme law of the land is incredibly reckless, dangerous, and foolhardy.

[Undesired Walrus]

So we should just ignore the law in favor of what is politically popular?

The decision to teach creationism in public schools was deemed to be against the Constitution. But the real issue is that it simply wrong, by any modern standard. Constitution or not.

In my opinion, of course.

[WildCat]

The decision to teach creationism in public schools was deemed to be against the Constitution. But the real issue is that it simply wrong, by any modern standard. Constitution or not.

In my opinion, of course.
I'm still not following you. If the proposed law clearly was unconstitutional, should the Constitution just be ignored?

[Undesired Walrus]

I honestly don't know, I'm not American nor a student in Constitutional law. My opinion is that it cannot be just to adhere to a decision written when world and culture was signifigantly different to how it is today. If the constitution stipulated that religion and Government should be forever entwined, I still wouldn't agree with the teaching of religion in science classrooms, nor would I believe that it should go ahead. Decisions are made by those who show up, after all, not those who are out of the room, out of life and are being eaten by the earthworms.

[Thunder]

if it is Constitutional to charge Social Security and Medicaid taxes to all Americans, then Im sure it would be Constitutional to require all Americans to buy health insurance. Its all in the realm of the General Welfare, and I'm all for it.

[T.A.M.]

Maybe the constitution should be revised, or updated...AMMENDED.

I mean if you can ammend it to limit congressional pay raises, I think Health Care for all deserves its own...I'm just sayin.

TAM:)

[linusrichard]

Some of these posts seem premised on the idea that Congress can do whatever it likes unless it is forbidden by the Constitution. This is backwards. Congress can (constitutionally) do nothing at all except for what is authorized by the Constitution. The Interstate Commerce Clause was pretty much the gateway for Congress to do whatever it wanted until the SCOTUS tightened the reins a bit in 1995 with Lopez. Even still, it allows for pretty broad power. But it's not unlimited. The general welfare power is not a general power to do anything that promotes the general welfare. It is the power to tax and spend to promote the general welfare.

So I would say this: If requiring all Americans to buy insurance can be justified under the ICC, it's constitutional. If not, but if (as I've been hearing) the consequence for not buying insurance is a higher tax, then it is probably constitutional under the power to tax for the general welfare. If neither of those (e.g., if the penalty is a fine or prison), then I suppose it's unconstitutional.

[JoeTheJuggler]

Social security is a tax. The service is provided by the government to everyone. It's not a mandate to buy a product.
Under what bill?
Both the bill passed by the House and the one in the Senate do not have anything about government provided healthcare services. The universal mandate is about buying insurance (which, according to insurance salesmen, is a "product").

[JoeTheJuggler]

This is the second time in as many days I get to say this:

I'm still not following you. If the proposed law clearly was unconstitutional, should the Constitution just be ignored?
That's like asking, "If it didn't hurt and didn't result in any manner of temporary or permanent disability, would I mind getting a broken leg?"

If the bill were clearly unconstitutional (but it's not), no, the Constitution should not be ignored. If breaking my leg were not at all like breaking my leg, then no I would not mind if that happened to me.

[Newtons Bit]

Under what bill?
Both the bill passed by the House and the one in the Senate do not have anything about government provided healthcare services. The universal mandate is about buying insurance (which, according to insurance salesmen, is a "product").

I wasn't writing about what you think I was.

[JoeTheJuggler]

Some of these posts seem premised on the idea that Congress can do whatever it likes unless it is forbidden by the Constitution. This is backwards. Congress can (constitutionally) do nothing at all except for what is authorized by the Constitution.

The "general Welfare" part is a prima facie case that Congress has this authority. If you're arguing that the bill is unconstitutional, the burden is on you to make that argument, not on anyone else to prove that it's not unconstitutional.

[JoeTheJuggler]

More precisely, I've been interested in whether Joe could go out and find evidence that was contrary to his prejudices. Apparently not. Or at least not that he's admitting to.

That's silly. You're asking me to make your argument for you.

Even so, I gave you the report of a google search and I showed that your google result (the factcheck.org debunking of the e-mail) argued against your case.

[JoeTheJuggler]

I wasn't writing about what you think I was.
You're right. Sorry. I thought you were going from the remark about Social Security back to the topic of the health insurance reform bill. My apologies.

[mhaze]

I honestly don't know, I'm not American nor a student in Constitutional law. My opinion is that it cannot be just to adhere to a decision written when world and culture was signifigantly different to how it is today. If the constitution stipulated that religion and Government should be forever entwined, I still wouldn't agree with the teaching of religion in science classrooms...And thus you see Chile, some decades back, altering their constitution to provide justice to people of African descent.

And Australia, doing a similiar thing (I'm thinking it was a constitutional change, someone from down under can correct me if that is wrong) for people of color, 1970s.

You have the temporary swaying of the US constitution, to ban alcohol, and the later reversal of this.

[mhaze]

That's silly. You're asking me to make your argument for you.

Even so, I gave you the report of a google search and I showed that your google result (the factcheck.org debunking of the e-mail) argued against your case.Nonsense. I'm not making a case. I'm essentially asking for recognition of the background of the controversy, since denial of it's existence is an argument for and from ignorance.

To put it bluntly, you'd get an immediate F in a course on constitutional law for the attitude and opinion you've expressed.

[mhaze]

Some of these posts seem premised on the idea that Congress can do whatever it likes unless it is forbidden by the Constitution. This is backwards. Congress can (constitutionally) do nothing at all except for what is authorized by the Constitution.....

Actually, read the posts of those who disagree. You will see that they really do want the ability to do just anything that they can vote in.

Essentially, that is a statement of an end run around the Constitution, and the particular method used, whether thru alleging the interstate commerce clause or some other, is irrelevant.

It amounts in the immediate, to a breakdown of the checks and balances set up by the founding fathers, and is tantamount to a constituional crisis.

[Thunder]

Some of these posts seem premised on the idea that Congress can do whatever it likes unless it is forbidden by the Constitution. This is backwards. Congress can (constitutionally) do nothing at all except for what is authorized by the Constitution. .

well, Congress has to first do something, and then someone has to sue to see if it is Constitutional.

the whole system is based on laws being passed first....and then standing up to judicial scrutiny.

can un-Constitutional Presidential actions and Congressional laws stay in place if nobody chooses to sue?

pretty much.

[Newtons Bit]

well, Congress has to first do something, and then someone has to sue to see if it is Constitutional.

the whole system is based on laws being passed first....and then standing up to judicial scrutiny.

can un-Constitutional Presidential actions and Congressional laws stay in place if nobody chooses to sue?

pretty much.

Not only that, but as I understand it, a person has to be directly affected by said law to be able to challenge it. This is the concept of "standing". Someone wanting to challenge a law basically has to have that law come down on them first. This can be really bad if they're wrong.

On the other hand, it really pisses the birthers off, so that's good :D

[JoeTheJuggler]

I'm not making a case.

You got that right.

[JoeTheJuggler]

Not only that, but as I understand it, a person has to be directly affected by said law to be able to challenge it. This is the concept of "standing". Someone wanting to challenge a law basically has to have that law come down on them first. This can be really bad if they're wrong.

Standing wouldn't be difficult, though. Just find someone without insurance who doesn't qualify for an exception, and refuse to get insurance. Or, for that matter, get someone with insurance to cancel their policy. It would be easy enough to start a challenge. I doubt it would get to the SCOTUS.

On the other hand, it really pisses the birthers off, so that's good :D
:)

To Parky's question though, it doesn't have to come from a civil suit. If a law is passed that is unconstitutional and someone is prosecuted in a criminal case that involves that law, it could (and should) get to a constitutional test. If no one sues and no one is ever prosecuted under a law that is passed, then it could stand. But if no one is affected by it, then it's not really much different than it would be if the law never passed.

[linusrichard]

The "general Welfare" part is a prima facie case that Congress has this authority.
As I said, if the "penalty" for not buying insurance is a tax, that may be legit. But the "general welfare" is not a carte blanche for Congress. It is nearly a carte blanche for Congress to tax and to spend and that's it. If Congress wanted to, say, outlaw murder, it could not do so under the "general welfare" clause, even though such a law would promote the general welfare. The reason is that it doesn't involve taxing or spending. If, on the other hand, Congress wanted to provide a public healthcare option, that does involve spending, and would be a legitimate exercise of that power.
If you're arguing that the bill is unconstitutional, the burden is on you to make that argument, not on anyone else to prove that it's not unconstitutional.[citation needed]
This makes a lot of sense if you're dealing with a state government. A state constitution generally gives plenary power to the legislature, and then imposes limits on that. The US Constitution gives enumerated powers to Congress (and then imposes even more limitations on those). I honestly don't know at the moment how the burden of proof falls when challenging a federal statute's constitutionality, but given the difficulty of proving a negative, it seems like it ought to fall on the proponent of the statute's constitutionality, not the opponent. Am I supposed to list each and every power of Congress, and explain why that power may not be used to force Americans to buy health insurance? Or maybe it makes more sense for me to take the two most likely suspects (general welfare and ICC) and argue against those two.

Anyway, I don't have a dog in this fight. I think it's good policy to require Americans to purchase health insurance, but I also think it shouldn't stand if it's unconstitutional. And I don't know enough about the proposal or the arguments surrounding it to have an opinion as to whether it's unconstitutional.
Actually, read the posts of those who disagree. You will see that they really do want the ability to do just anything that they can vote in.

Essentially, that is a statement of an end run around the Constitution, and the particular method used, whether thru alleging the interstate commerce clause or some other, is irrelevant.
It's totally relevant. If a particular act is authorized under the interstate commerce clause, then it's not an end run around the constitution, it's within the constitution - it's constitutional.
It amounts in the immediate, to a breakdown of the checks and balances set up by the founding fathers, and is tantamount to a constituional crisis.
Although the founders didn't apparently specifically say so, they gave us a system where only one body can meaningfully give us a consistent and binding interpretation of the vaguer parts of the Constitution. So what does it mean to regulate commerce among the several states? Right now it means what you find in Lopez and in Morrison. And you don't have to like Lopez and Morrison, but they are the law, and if a statute conforms to those principles, it is constitutional, in any sense for which that word is meaningful.
well, Congress has to first do something, and then someone has to sue to see if it is Constitutional.

the whole system is based on laws being passed first....and then standing up to judicial scrutiny.

can un-Constitutional Presidential actions and Congressional laws stay in place if nobody chooses to sue?

pretty much.
This is true, but you know somebody will sue if this gets passed.
Not only that, but as I understand it, a person has to be directly affected by said law to be able to challenge it. This is the concept of "standing". Someone wanting to challenge a law basically has to have that law come down on them first. This can be really bad if they're wrong.

That's true too, but if this law is passed, it will come down on everyone, so it won't be at all hard for anyone to have standing.

[Newtons Bit]

To Parky's question though, it doesn't have to come from a civil suit. If a law is passed that is unconstitutional and someone is prosecuted in a criminal case that involves that law, it could (and should) get to a constitutional test. If no one sues and no one is ever prosecuted under a law that is passed, then it could stand. But if no one is affected by it, then it's not really much different than it would be if the law never passed.

They, generally speaking, have to get convicted first.

[mhaze]

They, generally speaking, have to get convicted first.Good point. Look at the soldiers who brought the cases, birther cases. The government declined to bring the case to trial, simply going along with the soldiers' basis for lawsuit.

P. I demand proof that BHO is citizen since I am being deployed.
D. We decided you won't be deployed. Sucker!
P. Case now dropped. (Fuming...)

Standing is not enough. If the health care measures were passed, it might still be difficult to get a case before the Supreme Court.

[Beerina]

well, Congress has to first do something, and then someone has to sue to see if it is Constitutional.

the whole system is based on laws being passed first....and then standing up to judicial scrutiny.

can un-Constitutional Presidential actions and Congressional laws stay in place if nobody chooses to sue?

pretty much.

Not only that, but as I understand it, a person has to be directly affected by said law to be able to challenge it. This is the concept of "standing". Someone wanting to challenge a law basically has to have that law come down on them first. This can be really bad if they're wrong.

On the other hand, it really pisses the birthers off, so that's good :D



Ehhh, I really don't think this law, covering 100% of the population, and very intrusively at that, will have problems finding challengers to sue over it.

[Puppycow]

Health-insurance will be required by all Americans, regardless of their employment status, no?

No.