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Peter Ferrara, Contributor
I cover public policy, particularly concerning economics.
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The reason that at least 5 Justices are going to find the law's individual mandate unconstitutional is that it is contrary to the fundamental federalism architecture of the Constitution. Under the Constitution, the federal government is an authority of limited, enumerated, delegated powers. All other powers of government are reserved for the states, including the broad authority labeled the "police power." That is the power to compel individuals to take specific actions for the public good, such as actions for the public health like vaccinations or quarantines, or obtaining car insurance, or attending school. Notice that all such laws are adopted at the state or local level. (Any federal laws compelling action are based on specific delegated powers other than the Commerce Clause, like those providing for national defense, or taxation).
The power to compel the purchase of health insurance for the public good, as in Obamacare's individual mandate, is a function of the police power reserved to the states, and denied to the federal government by the Constitution and Supreme Court precedents. If the federal government is now to hold a national police power, then the constitutional framework of federalism, with limited, enumerated powers delegated to the federal government, and the remaining powers of government retained by the states, would be obliterated.
That is why the Supreme Court held in United States v. Morrison, 529 U.S. 598 (2000), "We always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power." The Court added, "the principle that the Constitution created a Federal Government of limited powers, while reserving a generalized police power to the States, is deeply ingrained in our constitutional history." The Court explained in New York v. United States, 505 U.S. 144 (1992) that Congress may not exercise its enumerated powers in a way that "infring[es] upon th[at] core of state sovereignty." The Court in Morrison rejected the argument that women who are sexually assaulted would need medical care provides a sufficient interstate commerce connection under the Commerce Clause.
As Justice Kennedy explained in United States v. Comstock, 130 S. Ct. 1949 (2010), "the precepts of federalism embodied in the Constitution inform which powers are properly exercised by the National Government in the first place." The Court added in Gregory v. Ashcroft, 501 U.S. 452, 457 (1991), "[t]he Constitution created a Federal Government of limited powers [and] withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation."
The Obama Administration tried to shoe horn the individual mandate into the federal enumerated power of the Commerce Clause, which grants Congress the power to regulate interstate commerce. Their argument boiled down to the claim that millions of people choosing to not buy health insurance substantially affects interstate commerce. But every economic decision, when aggregated across the whole market, substantially affects interstate commerce in this way, including decisions not to do something. So that would leave the Commerce Clause eating up the whole Constitution and its most fundamental doctrine that the federal government is an authority of limited, enumerated, delegated powers. Federal power would then be without limit, contrary to the whole concept of the federal government in the Constitution.
That is why the Court kept asking the government for a principle that would limit its interpretation of the Commerce Clause, and its failure to come up with one is fatal to the government's case. All prior cases under the Commerce Clause were based on the principle that some action had been taken that the federal government could then regulate as interstate commerce. To hold that inaction could be regulated as well as itself substantially affecting interstate commerce would break through any limitation on the power, and so was not what was intended. That would also again tear down the Constitution's fundamental federalism architecture and any distinction between limited federal and plenary state power.
That is why the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995) rejected the notion of unlimited Commerce Clause power, holding that it will strike down regulation under the Commerce Clause which leaves no principled limit to federal power under the Clause. The Court said, "the Constitution's enumeration of powers does not presuppose something not enumerated and that there will never be a distinction between what is truly national and what is truly local." Justice Kennedy added, "[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or another level of Government has tipped the scales too far."
Once the Court finds the individual mandate unconstitutional on these grounds, as it will, the question becomes whether the whole Obamacare Act must be struck down as unconstitutional as a result. The law does not include a traditional severability clause providing that if one of provision of the Act is found unconstitutional, the rest of the law should stand.
Consequently, the question becomes whether the remaining parts of the Obamacare law can still remain fully operative and function as Congress intended, and whether Congress would have passed the Act without the individual mandate. The answer in both cases is indisputably no.
Obama's lawyers themselves have repeatedly argued in courts all over the country that the Obamacare law cannot function without the individual mandate. That is because of the Act's regulatory requirements for guaranteed issue and community rating. The Act requires all insurers to cover all pre-existing conditions and issue health insurance to everyone that applies, no matter how sick they are when they first apply or how costly they may be to cover. Moreover, the insurers can only charge them the same, standard, market rates as everyone else.
Under these regulatory requirements, younger and healthier people delay buying insurance, knowing they are guaranteed coverage at standard rates after they become sick. Sick people show up applying for an insurer's health coverage for the first time with very costly illnesses such as cancer and heart disease, which the insurer must then cover and pay for, out of the same standard premiums as everyone else pays. This means the insurer's covered risk pool includes more costly sick people and fewer less costly healthy people, so the costs per person covered soar. The insurer then has to raise rates sharply for everyone just to be sure to have enough money to pay all of the policy's benefits.
Those higher rates encourage even more healthy people to drop their insurance, leaving the remaining pool even sicker and more costly on average, which requires even higher premiums, resulting in a financial death spiral for the insurers and the insurance market.
So do you prefer cherry or grape kool-aid mr. author?
Depends on who employs him. Hahaha!
Bet he has a "marvelous" health insurance policy.
Seems easy for a lawyer to find all the laws he likes just to write a political opinion piece like this one then say liberals can find a new way to address the health care issue. I often find it entirely self-serving for a lawyer like yourself to expound on an issue to satisfy the greed of your employers, (Rich) Americans for Tax Reform (Avoidance). Perhaps you should admit the Republican Heritage Foundation came up with the mandate in the first place to make insurance companies richer not some noble purpose to assist Americans thrown out of the health insurance market by preexisting conditions or inability to buy it. I find it rather illuminating you write a position paper peppered with the Republican talking points to make it sound like you filed this in the court ignoring the glaring problem of uncompensated care that is rampant in emergency rooms all over the country and the fact health care it is 17% of our economy. What about the ridiculous fact insurance companies burn 30 cents of every dollar they collect on themselves, in ridiculous salaries, and give to shareholders ignoring the Hippocratic Oath of doctors? I realize nice Republicans like yourself really could care less 45,000 die every year due to lack of quality care or none, which really is little too late. Also, why is America worse than even Cuba on infant mortality? Health care is all about serving the almighty dollar and not patients thereby not being about medicine. I'm part of the 1% and I can get any health care I want for the asking so don't call me a freeloader on this argument. it's the right thing to do. We can further fix it's misgivings later once it's law and that's it.
Your rambling diatribe seems to be more an angry condemnation of lawyers, rich people, insurance companies, and Republicans. At no point in your incoherent denuciation of everything and everyone, do you present even one argument that resembles reason or rationality. In addition, you also make wild and patently absurd claims about infant mortality rates in 3rd world totalitarian regimes without a shred of evidence. Truly, I find everything you've written nauseating. Ad hominem fallacies and sad strawmen propped up by you will convince no-one but other deluded progressivists.
Um, those are facts and you can look them up yourself :)
The fact that the US doesn't have decent infant mortality rates or life spans that are longer than many other countries are facts you can easily look up yourself. ;)
Thank you!
@Jayne Dilatory Those are facts. 17% of the economy is health care. Insurance companies take 30 cents of every dollar for themselves. Any ER doc or hospital will tell you uncompensated care is at crisis stages. Heritage Foundation's mandate is totally true.
The Americans for Tax Reform is nothing more than a group that wants the 1% (like myself) to pay no taxes if possible. I paid 19% last year. This year it will be 15%. Good for me, bad for America.
The Republican comment used to be conjecture but it is becoming clear the Republicans could care less about their fellow man.
You do realize you can write a check to the treasury anytime you want, right? If you don't think you're paying enough taxes, then pay more. It really is that simple.
It is not the government's role to mandate that I buy health care. You can back off and speak in generalities if you wish, you can buy your own hospital and run it how you wish, you can buy 4 health care insurance policies if you think it makes you altruistic or a philanthropist. But the cold, hard Fact is this: The United States government has absolutely No Right to force me to do business with someone else. Period.
Your argument has some valid points and some valid concerns (why is our infant mortality rate so high?) but Tyranny has never worked. Even for the Romans.
you're the one who's rambling, your comment lacks any substance is just a bunch of pretentious bullshit. try actually thinking
@Jayne Dilatory by the way
Another 1%er who agrees with you. (P.S.- Don't give away our secret handshake)
It is easier to have an opinion about other people's money.
Easy solution-socialize health care so no one is forced to "do business" with anyone. Works for me. Works for Europe. They have better care and spend half as much.
That's an overkill (no pun intended). Just build more emergency rooms. No TV's though. Too expensive.
A. It hardly matters who first came up with the idea of the mandate. What you need to understand is that the individual states can formulate universal health insurance plans with individual mandates all they want. The federal government can not.
B. These are not "Republican talking points." They are the legal arguments that every plaintiff's lawyer has made in every court that has heard PPACA cases.
C. The problem of uncompensated emergency room care has nothing to do with whether the mandate is constitutional.
D. There are any number of reasons why health care in the US is so expensive. It is too expensive and it is too big a percentage of our GDP. Have you ever tried to educate yourself about why it's so expensive? Do you know, for example, what "defensive medicine" is and why doctor's practice it? Do you know that American consumers pay the lion's share of R&D costs for pharmaceuticals and equipment? Do you understand how the private market gets skewed when government infuses it with vast amounts of public money? The last is not just a problem with health care, but with any market in which the government participates as a major player. See housing and higher education for other examples.
E. I'll wager you know next to nothing about the insurance business. It's something else you might want to educate yourself about. (BTW, who's talking points are you parroting?) In any event, I don't think PPACA limits executive salaries or the shareholder's return on investment (which, of course, is why people make investments in the first place).
F. The statistic of 45,000 annual deaths due to a lack of health insurance (and it's health insurance, not health care) comes from a study done by two doctors who are advocates for single-payer health care. Others who have studied their study have concluded that their methodology was questionable at best, that their lack of followup renders their conclusions meaningless and that they seemed to have formulated their conclusions first and then designed the study so as to reach them.
G. The reason why US infant mortality appears higher than that of other countries is because of the way in which we record live births. For example, if the child is born alive, it's recorded as a live birth even when the doctors know it will not survive. In other countries such births are not recorded as live births. It's something else you can educate yourself about.
But, hey, other than that, it was a fine comment.
The court is supposed to differ to the Congress, unless a law is clearly unconstitutional.
In this case, opponents invent a novel theory that Congress can only regulate activity, not inactivity. Which is another way of saying Congress can not use its Commerce Clause power to force you to do something against his or her will.
There are plenty of cases where the Court has ruled otherwise. Most interestingly, in Heart of Atlanta vs United States, a hotel owner claimed that he could not be forced to enter into a commercial transaction (renting to a "negro") against his will.
He lost.
It is obvious that the regulation of health care crosses state boundaries. Drugs and medical supplies come across state lines about as often as packages from Amazon.com. Patients cross state lines all the time also, to visit the famous Mayo Clinic for example. And the economic effects of health care expenditures effects whole industries like the American automobile industry.
All of which means this is exactly the kind of interstate economic case where the Supreme Court has respected the will of the Congress for the last 80 years.
The government mandated that hotel owners have to rent rooms to minorities, didn't it? Renting a room is a commercial transaction. The hotel owner was forced to enter into financial transactions against his will. Just like people who object to buying health insurance for political reason.
And what about those Emergency Rooms? Ronald Reagan signed a law that requires ERs to provide emergency care. Do you think this law requires the ER to buy medical supplies and doctor salaries and nurses' salaries to take care of the uninsured? You betcha!
Well nothing in the constitution makes the federal government responsible for any of this.
Good stuff!!!!!
The issue at hand is not health care but health care insurance which is regulated at the state level. The government seeks to create commerce and then mandate that everyone participate in it.
You're misrepresenting Heart of Atlanta v US. Heart of Atlanta was already engaged in an activity, that of renting out motel rooms to interstate travelers. The court ruled the owner could not discriminate in the course of conducting that activity. Not at all the same thing. The case was neither argued nor decided on the basis of regulating inactivity.
Mr. Tawdry, your argument is a joke. Do you acknowledge the racist owner was FORCED, AGAINST HIS WILL, to rent a room to a black family?
You see, it doesn't matter one lick whether the gentleman was in the hotel business thirty five years or one second before that family walked in.
The law said if he so much as put up a lighted sign, offering rooms for rent, one second before that family walked in, he was FORCED, to enter into a commercial transaction, AGAINST HIS WILL.
Nice dodge, by the way. But the honest man seeks to serve the truth, not hide it.
"The issue at hand is not health care but health care insurance which is regulated at the state level."
Then you will have to explain why their is a federal law, called COBRA, imposing certain regulations on insurance companies.
And, while you are at it, explain why this is federal law:
HIPAA is a federal law that:
Limits the ability of a new employer plan to exclude coverage for preexisting conditions;
Provides additional opportunities to enroll in a group health plan if you lose other coverage or experience certain life events;
Prohibits discrimination against employees and their dependent family members based on any health factors they may have, including prior medical conditions, previous claims experience, and genetic information; and
Guarantees that certain individuals will have access to, and can renew, individual health insurance policies.
What's the matter? Didn't the people who do your thinking (Drudge maybe?) give you an answer for that?
Those laws are regulations directed at businesses and employers, not individuals. In either of the scenarios you present would I be required to accept the employers offered insurance, whether I had pre-existing conditions or not; and I am not required by federal law to participate in a COBRA plan once I terminate my employment and by that action lose my health insurance plan.
"Those laws are regulations directed at businesses and employers, not individuals."
These laws demonstrate that the novel theory that Congress may only use it's commerce clause powers to regulate "action", but not "inaction" are as fictitious as Superman, Green Lantern and Aquaman.
If one has a single person proprietorship owning and running the Heart of Atlantic hotel, this *person* would be required to enter into commercial transactions against his will. You cannot dismiss the precidencial importance of this case just because it is inconvenient.
The owner of the hotel in this case claimed that the Civil Rights act of 1964 violated the 13th amendment. He was literally claiming that being required to perform this transaction against his was enslavement.
Unless I am mistaken, enslavement is not a claim that a business or corporation could make. It is the claim that only an individual could make, and that is how the court answered him.
The only difference between that claim and the novel claim of the Republican appellants in this case is that the phrase "involuntary servitude" actually appears in the Constitution. I believe that the phrase "regulate inactivity" comes from a comic book somewhere.
"Those laws are regulations directed at businesses and employers, not individuals."
On the other hand, if you are referring to my examples of COBRA and HIPAA, I will concede that these laws only impose requirements on businesses, not individuals.
However, I was not using these laws to demonstrate that the "regulate inactivity" claim is spurious. I demonstrate that with the pivotal "Heart of Atlanta" case.
What the citation of COBRA and HIPPA does is to demonstrate that the regulation of health insurance as interstate commerce is already done in over laws.
As is common in the law, demonstrate one claim on the part of the Republican appellants spurious by looking to one set of facts, and another of their claims spurious by looking at another.
Kata and JoeK
As a person who practices medicine, I can say that you are both cluless, obviously. The involvement of the government in 1986 by mandating all persons who appear at an ER be treated, regardless of ability to pay, degree of "illness or injury" or even citizenship. THAT is the core/root of the problem.
You think one random person is going to make any dent on the deficit?
So what do you suggest be done about the problem, truebluepatriot?
Good points all. Here's some additional comment from my perspective.
With regard to the "mandate" included in the Affordable Care Act ("ACA"), I find it interesting that some of the questioning by some Justices (e.g., what does broccoli have to do with anything?) failed to grasp what I believe to be the most important dimension of the mandate provision. Specifically, because of the social contract we have embraced from our founding as a nation to support the general welfare of our country's population, we now fail in our societal contract with each other if we allow a minority of our citizens (i.e., those choosing to forego maintaining health insurance for themselves and their families) to impose their economic burden upon all other U.S. citizens when they need health care and can't afford it.
And yes, in the process, this same minority affects interstate commerce — for which the U.S Congress has ample powers to regulate such commerce through legislation such as the ACA, such powers being granted to it under the Constitution and confirmed to it by prior Supreme Court decisions.
Truth be told, from the very outset of the ACA being drafted, I was slightly bothered with the concept of the mandate and the imposition of a contractual obligation being imposed upon U.S. citizens. But my thinking has evolved to the point where I can now accept that concept as the greater good for the general welfare of the U.S. population. I hope the Justices come to see it that way too, but I'm concerned political partisanship has infected the Court of Chief Justice Roberts — or has it just metastasized so we find ourselves where we are today?
See more @ http://theviewfromthemiddleoftheroad.blogspot.com/.
That's the good thing about reading the comments. Just when someone comes along and says things that seem reasonable, and you start to secon-guess yourself, you read a comment that makes a helluva lot more sense. What I don't understand, besides the fact this piece of legislation is un-Constitutional, if it were passed, does that mean everyone has to buy insurance? What about the people who can't afford it now, do they somehow have the means to pay for it, because it's the law?
James, the part about the hotel owners is different, because they were refusing to rent rooms to people they didn't like, which is racism. The Reagan part, I don't know.
"James, the part about the hotel owners is different, because they were refusing to rent rooms to people they didn't like, which is racism."
I am aware of the motivations of the hotel owner in the Heart of Atlanta case. That doesn't matter. What does matter is what *legal* claims were made by the gentleman, how the Supreme Court responded to those legal claims, and what he was required to *do*.
You should use the case to see what you can learn that might be relevant to the present case, and frankly, there is a lot. The opponents in this case have this made up theory that dostinguishes 'regulating activity' and 'regulating inactivity'. I think that this can be restated as follows:
"Anyone who is, by choice, not participating in commerce cannot be subject to commerce clause regulation."
Well, that is wrong. The hotel owner in the Heart of Atlanta case was forced to enter into commercial transactions agains his will.
The fact that he was taking a negative action (refusal to rent a room) did not mean that he was not subject to Congressional commerce clause regulations. Just as, the fact that the opponents to the ACA law cannot claim that their negative action (refusal to buy health insurance) does not make themimmune to Congressional commerce clause regulation either.
The hotel owner claimed that being forced to enter into a commercial transaction with a "negro" against his will was involuntary servitude (slavery) and a violation of the 13th amendment. Surely it doesn't escape your attention that the opponents of the individual mandate are making basically the same claim.
The fact is that the opponents to the ACA law cannot claim that their negative action (refusal to buy health insurance) makes them immune to Congressional commerce clause regulation either.
you buy car insurance which you are forced to buy if you drive a car. you do drive right? and that car is a necessity right? there you go…. hypocrisy.
the law does not require you to buy a car nor do you have the right to drive.
and james your are lost.
Hello James,
There is a mighty big difference between race issues in commerce and a blanket demand on individuals to forgo their rights and enter into a contract that none may desire.
As the operator of a commercial establishment, one must provide a certain level of service to every paying customer who walks through the door. One may not turn away anyone he wishes because he does not like some overt or concealed feature. Is it right that a hotel owner turns away wheel chair occupants because he feels like it? This is not a question of servitude. Its a question of eradicating an abhorrent practice that hearkens back to Slavery itself.
For the courts to abet such absurd activity is a detriment to us all.
The issue here is one of choice in commerce. Should I be forced to take a room at a hotel that I do not wish to stay in? I may wish to stay with friends. I may wish to sleep in my car. The Feds have said one must take accommodations. Whether I stay there or not, it is mandated that I must pay for it.
There is no question of basic human rights. There is no question of humanity. This is about legislating commerce, not about legislating against an odious vestige of a society long dead.
There is only a Federal mandate imposed against one's wishes without any justifiable purpose.
You are guilty of sloppy thinking. First off, the Congress has no power to regulate racial descrimination. The Civil Rights act of 1964 was based on commerce clause authority, just as the Affordable Care Act is.
Further, the owner of the Heart of Atlanta Hotel suited as an individual, claiming that being forced to enter into a commercial transaction (or equivalently a contract) against his will was slavery.
Only human beings can be enslaved, not businesses, hence he was suing as an individual.
Your "level of service" argument has no relationship with the actual legal plans in the Heart if Atlanta case, nor the actual words of the Civil Rights Act, nor the Commerce clause powers upon which the Civil Rights Actif 1964 is based.
Now that we have disposed with your "level of service" argument as having nothing to do with the case or the law, we can look at the actual similarities and differences with the challenge against the ACA.
In both cases, the appellants basically are liming that being required to enter into a commercial transaction against your will, even if it has "substantial economic effect on interstate commerce", constitutes slavery.
Of course the Heart if Atlanta case established that claim was false.
The difference between the two cases was that the appellant in the Heart of Atlanta case appellant made actual reference to the 13th amendment of the Constitution. The appellant the ACA case did not.
Hello James,
The hotel is a business, not an individual. It may be sole proprietorship, but its a business. And the business has to abide by certain standards. Otherwise the business will not be allowed to continue to operate.
The hotel has to abide by a number of fire and health codes. If the owner does not wish to become a slave to those standards, then he is free to unburden himself and close it down. The order does not compel a person, it compels a business to operate under certain conditions and rules. That is why this case was argued under interstate commerce powers. That is why the case in named the Heart of Atlanta Motel vs the United States, not Rolleston, aka the slave, vs the USA. That should take care of the 13th Amendment argument by Rolleston.
Congress has passed a number of laws on civil rights, the most recent being the Civil Rights Act of 1991, which George Bush vetoed.
Now it is true that the individual states regulated such matters of discrimination, etc. The Civil Rights Act seemed to impinge upon state powers, there being no clearly enumerated power held by Congress to regulate discrimination. So it was a problem whether the 'public accommodations' clause could be enforced. Well, the courts found a way to enforce it through Congressional powers to regulate interstate commerce. It was an argument that held up to the scrutiny of the courts; That uneven enforcement of racial discrimination would greatly harm interstate commerce, the movement of goods and people, if certain people were greatly hindered in finding accommodations or goods in travel. And one can certainly see the need for national standards in this matter.
The case here involves forcing individuals to purchase insurance that they may or may not wish to buy. It does not compel a business. It compels people.
I have no idea how the government forcing the people of the US to purchase a product that a large portion may not wish to buy constitutes a Congressional power allowed under Interstate Commerce. Now of course all those armchair lawyers will argue that it may be imposed with facility given previous cases and rulings.
But this is a very different case. This is not a wheat case or discrimination case, which succeeded, nor a gun law, which failed. Can the Federal Government force people to buy a product that they may not wish to buy?
What is the harm in people not choosing to purchase insurance for themselves? Does it undermine interstate commerce? Does it restrict it? The US Government's argument was that the order is necessary because healthy people will not buy insurance and sick people will. Therefore, all must buy insurance to prevent the costs of the claims of sick people from overwhelming the insurance companies and forcing them into bankruptcy. That is a very dubious basis for enjoining submission to a Federal law.
If the Federal Government can force people to buy this insurance, the Government can then force any person to buy whatever they deem necessary. There will be no limit on Federal powers, though one can argue that right now. Its tyranny, for interstate commerce, for commerce, for the individual and his right to enter and leave the market place as he pleases.
We shall see how it turns out, but looking upon the reception the argument received from the Supreme Court members, and upon Obama's subsequent lies and his remarks insinuating conspiracy, it isn't going anywhere.
You speak without any knowledge of the actual Heart of Atlanta Hotel case.
For one thing, the owner of the hotel challenged the Civil Rights law of 1964, which I remind you was based on commerce clause authority just like the ACA, as an individual. His claim was that being forced to rent a room to African-Americans violated his constitutional rights, as an individual.
In fact, the gentleman made the specific *legal claim* that such a coerced act on his part would violate his right to be free from involuntary servitude (slavery), in violation of the 13th amendment. Only an INDIVIDUAL could make the claim of having been enslaved, and the court responded to the case entirely based upon whether his rights as an INDIVIDUAL were violated.
The rest of your argument is specious. Congress has the power to regulate behavior which has subtantial economic impact on interstate commerce. Hello healthcare! The Constitution does not say that there is ANY difference between so called "regulating activity" and "regulating inactivity".
It says: IF YOUR BEHAVIOR HAS SUBSTANTIAL ECONOMIC IMPACT ON INTERSTATE COMMERCE* CONGRESS CAN REGULATE IT.
Even if Teabaggers don't like it. They must have not existed when the states were busy ratifying the constitution.
Sometimes regulations can be onerous. The Congress could probably ban the interstate commerce in cheese. Or cars. Or oil. But it was never the job of the Constitution to separate the good ideas from the bad. That, in theory, is what the Congress is supposed to do.
*And one more thing. You don't even have to be DOING interstate commerce in order to have "substantial economic impact" on the same. In one case a person was just growing pot for her own use. The federal law banning the same was upheld.
Hello James,
Well, you didn't read the first line in the matter before the courts.
Its, "The Heart of Atlanta vs the United States of America." The owner of the hotel was a lawyer by the name of Rolleston. If the matter were between Rolleston and the USA, the case would have been called, "Rolleston vs the USA." But it wasn't, was it!
So my argument is entirely specious. Well here is the summary and outcome of the case presented by actual legal authorities.
Prior to passage of the Civil Rights Act of 1964 (the Act), the Appellant, Heart Atlanta Motel, Inc. (Appellant) operated a motel which refused accommodations to blacks. Appellant intended to continue this behavior to challenge Congress' authority to pass the Act.
Synopsis of Rule of Law. Congress may regulate the ability of commercial institutions to deny service on the basis of race under its power to regulate interstate commerce.
Facts. Heart of Atlanta Motel had 216 rooms available to transient guests and had historically rented rooms only to white guests. Appellant solicits business from outside the State of Georgia through advertising in national travel magazines and other media. Approximately 70% of its guests are from outside the state. Appellant contends that Congress has overreached its authority under the Commerce Clause in enacting the Act.
Issue. May Congress prohibit racial discrimination in hotel lodging under the Commerce Clause?
Held. Yes. Appeals court ruling affirmed.
Congress heard testimony from many sources describing the hardships blacks face in securing transient accommodations throughout the United States. With an increasingly mobile populace, this brought increasing difficulties to many United States citizens.
It does not matter that Congress was addressing a moral issue (see the dissent in Hammer v. Dagenhart, 247 U.S. 251 (1918) and the Supreme Court of the United States' (Supreme Court) opinion in Darby, 312 U.S. 100 (1941). What the Supreme Court is examining is Congress' power to enact the legislation, not the impetus behind the Act.
Concurrence. Justice William Douglas (J. Douglas) concurs in the judgment, but he is uneasy resting the decision on the Commerce Clause, rather than Section: 5 of the Fourteenth Amendment of the United States Constitution (Constitution). He feels that it is more appropriate to rest civil rights legislation on the constitutional status of the individual, than the impact on commerce.
Discussion. The first of the modern civil rights cases before the Supreme Court, Heart of Atlanta Motel, illustrates the plenary nature with which the Supreme Court had vested the commerce power. The view expressed by J. Douglas was eschewed by the majority, largely because in The Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court had ruled that Section: 5 of the Fourteenth Amendment of the Constitution could not regulate private behavior.
What an erroneous or hollow argument!
So get your facts right in the beginning and perhaps you won't reason so badly.
Congress could attempt to ban the interstate commerce in cheese, but it would have that order reviewed by lower courts of appeal and ultimately the Supreme Court. Just because an Act of Congress becomes law does not mean it will survive. The President has the power of the veto, and the courts have the right to determine whether the Act blends well with the Constitution. If so, then it survives. If not, then the errant sections or even the entire law can be nullified. This not only in theory, but also in practice, is what the Federal Courts of the land are supposed to do.
So why should the Obamacare law survive? The Supreme Court members gave the Government's representative a real tough time during the judicial examination. And why do you think they did so?
Well, perhaps for the same reasons that Mr. Ferrara believes they did.
If the Government can force individuals to buy a product that they do not wish to buy, then where does tyranny end?
What argument in the Congressional power to regulate interstate commerce could be made to defend this absurdity, this imposition on the rights of the individual?
Answer that one, would you James. Go and take a look at the Government's reasoning and let us know what the defense is.
Hello James,
And don't forget to discuss the Severability clause, or rather the lack of one.
Hello James,
By the way, here is the Federal Court's decision rendered by Judge Hudson on the matter of the PPACA.
On December 13, 2010, Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia held that a key portion of the Patient Protection and Affordable Care Act ("PPACA"), passed by Congress in late 2009 and signed into law by President Obama on March 23, 2010, was unconstitutional. The challenge to the law was made on behalf of Virginia by its Attorney General and claimed that the minimum essential coverage provision contained in the law was unconstitutional…
In a 42-page opinion, Judge Hudson agreed with Virginia, holding: "Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market." Attorneys for the Department of Health and Human Services argued that the decision of an individual not to obtain health insurance would undoubtedly affect interstate commerce at some point in the future when the individual needed medical care and was thus within the powers of Congress to regulate under the Commerce Clause. Judge Hudson disagreed, however, finding that individuals who do not to purchase health insurance were actually abstaining from economic activity, rather than voluntarily participating in the stream of interstate commerce, and thus "an individual's personal decision to purchase – or decline to purchase – health insurance from a private provider is beyond the historical reach of the Commerce Clause."
Off to the Supreme Court.
I am glad to see you actually start, FOR THE FIRST TIME, to address the *legal issues* at hand.
For example, you now appear to recognize that the majority opinion upholds the Civil Rights Act of 1964 on the basis of the COMMERCE CLAUSE, not some specious "discrimination" clause.
However, you totally FAIL TO ADDRESS the *legal claims* at issue in this case. Stated quite succinctly in the ruling:
"The appellant contends that Congress in passing this Act exceeded its power to regulate commerce under Art. I, 8, cl. 3, of the Constitution of the United States; that the Act violates the Fifth Amendment because appellant is deprived of the right to choose its customers and operate its business as it wishes, resulting in a taking of its liberty and property without due process of law and a taking of its property without just compensation; and, finally, that by requiring appellant to rent available rooms to Negroes against its will, Congress is subjecting it to involuntary servitude in contravention of the Thirteenth Amendment.
The appellees counter that the unavailability to Negroes of adequate accommodations interferes significantly with interstate travel, and that Congress, under the Commerce Clause, has power to remove such obstructions and restraints; that the Fifth Amendment does not forbid reasonable regulation and that consequential damage does not constitute a "taking" within the meaning of that amendment; that the Thirteenth Amendment claim fails because it is entirely frivolous to say that an amendment directed to the abolition of human bondage and the removal of widespread disabilities associated with slavery places discrimination in public accommodations beyond the reach of both federal and state law….
Slavery applies to PEOPLE.
It is beyond doubt that if the civil rights act violates the constitution IN ANY WAY, that it should have been struck down by the court.
If you claim that it is CONSTITUTIONAL for the Congress to force a business to enter into commercial transaction against his will, there remains the question of HOW WOULD IT BE CONSTITUTIONAL to force the individual who owns the business to enter into a commercial transaction against his will.
Clearly, the owner of the Heart of Atlanta wins his case if the act violates the rights of the OWNER to be forced to enter into a commercial transaction against HIS WILL.
The owner LOST his case. The Supreme Court, in upholding the act affirmed that the Congress can "REGULATE INACTIVITY".
You lose.
The Supreme Court, in upholding the act affirmed that the Congress can regulate BUSINESS TRANSACTIONS. There is NOTHING specific or implied in Heart of Atlanta about regulating inactivity.
Congratulations on your ability to quote a ruling that happens to agree with you.
But you should be made aware of the fact every court except for two, below the Supreme Court, have ruled along party lines and thereby strongly suggesting that the findings were based on strong feelings what the judges wanted the law to say rather than what the law actually calls for.
The opinions, therefore of the two judges who did not rule along the predictable lines are especially compelling. Both are über respected, conservative judges. BOTH UPHELD THE ACA LAW.
Here is what Judge Lawrence Silberman wrote:
"Appellants say that Congress cannot regulate based on such sweeping generalizations. Only individuals who are voluntarily engaging in an "activity" related to interstate commerce–not the uninsured, who are "inactive"–are within the scope of the Commerce Clause. The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants' argument.
No Supreme Court case has ever held or implied that Congress's Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce. We look first to the text of the Constitution. Article I, § 8, cl. 3, states: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (emphasis added). At the time the Constitution was fashioned, to "regulate" meant, as it does now, "[t]o adjust by rule or method," as well as "[t]o direct."27 To "direct," in turn, included "[t]o prescribe certain measure[s]; to mark out a certain course," and "[t]o order; to command."28 In other words, to "regulate" can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term "commerce" limited to only existing commerce. There is therefore no textual support for appellants' argument. So we turn to Supreme Court decisions.
The Framers, in using the term "commerce among the states," obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction. See Lopez, 514 U.S. at 553-61; id. at 568-75 (Kennedy, J., concurring). Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. See United States v. Morrison, 529 U.S. 598, 610, 615-19 (2000); Lopez, 514 U.S. at 558-61, 566-67. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce.
To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority.29 But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether "inactivity" can also be regulated. See Florida, 648 F.3d at 1286. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.
We think the closest Supreme Court precedent to our case is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Id. at 114-15, 118- 19. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within Congress's commerce power. Id. at 127-28. This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even "if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon." Wickard, 317 U.S. at 128 (emphasis added). Justice Jackson thus recognized that the Act "force[d] some farmers into the market to buy what they could provide for themselves." Id. at 129. Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. See Raich, 545 U.S. at 20. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer's "activity" could be as incidental to the regulation as simply owning a farm.
Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity." For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future.30 And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between "indirect" and "direct" effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71 (Kennedy, J., concurring).
Appellants have sought to avoid this logic by asserting that even if one could be obliged to buy insurance when one sought medical care, one cannot be obliged to keep it. Although that argument, as we have noted, avoids the facial challenge objection, it strikes us as rather unpersuasive on the merits. Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services–as rather useless as that would be–is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.
Appellants have not argued that health care and health insurance are uniquely state concerns, and decades of established federal legislation in these areas suggest the contrary.
Moreover, if Congress can regulate even instances of purely local conduct that were never intended for, or entered, an interstate market, we think Congress can also regulate instances of ostensible inactivity inside a state. The aggregate effect of that behavior, after all, is just as injurious to interstate commerce.
Appellants' view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause. The shift to the "substantial effects" doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants' argument; its very premise is that the magnitude of any one individual's actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants' argument–that Congress's power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. See United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 (1942) (surveying cases). Whether any "particular person . . . is, or is not, also engaged in interstate commerce," the Supreme Court expressly held, is a mere "fortuitous circumstance" that has no bearing on Congress's power to regulate an injury to interstate commerce. Id."
So… opponents of the ACA law's theory is novel (made up), contradicts the basis of all modern commerce clause law ("substantial effect doctrine") and contradicts specific precedents (Wrightwood Dairy).
Silberman, being the uber conservative that he is, acknowledges unease with the lack of a limiting principle. He might very well have pronounced skeptical questions much like those voiced by Kennedy during oral arguments. In fact, Silberman was very tough on the government lawyers when they went before the DC Court of Appeals.
This is the very judge that ruled the DC handgun ban unconstitutional, to rule in favor or the government.
Business transactions are carried out by human beings. Violate their constitutional rights and the law is unconstitutional. So compelling a business to do transactions against its will is to compell the human being who is its owner to do transactions against his will.
And, as you will learn from Silberman ruling, the "regulate inactivity" argument is at odds with the substantial effect doctrine. Game over.
Here is the best part of the Silberman ruling. If Congress is limited to regulating activity the federal laws banning the possession of CHILD PORN must be struck down. And yet, that is a step that morally rudderless Republicans are willing to take!
"Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity." For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future."
This is a conservative judge, writing like a conservative judge. Conservative in the sense that he has no time for your novel and dangerous arguments.
Hello James,
No. You lose. The Supreme Court addressed a case brought forward by a firm, not an individual. There is no individual mentioned in the entire case. How does one enslave a firm? Try again.
Here is the Supreme Court's reasoning on the matter. Do note that the court rejects the claims of the Hotel's owner. Its a business, you fool.
@@@@@In the past this Court has consistently held that regulation of the use of property by the Federal Government or by the States does not violate either the Fifth or the Fourteenth Amendment.@@@@@
The restaurant and motel proprietors argue also, however, that Congress violated the Due Process Clause of the Fifth Amendment by requiring that they serve Negroes if they serve others. This argument comes down to this: that the broad power of Congress to enact laws deemed necessary and proper to regulate and protect interstate commerce is practically nullified by the negative constitutional commands that no person shall be deprived of "life, liberty, or property, without due process of law" and that private property shall not be "taken" for public use without just compensation. In the past this Court has consistently held that regulation of the use of property by the Federal Government or by the States does not violate either the Fifth or the Fourteenth Amendment. See, e. g., Ferguson v. Skrupa, 372 U.S. 726 ; District of Columbia v. John R. Thompson Co., 346 U.S. 100 ; Village of Euclid v. Ambler Realty Co., 272 U.S. 365 ; Nebbia v. New York, 291 U.S. 502 . A regulation such as that found in Title II does not even come close to being a "taking" in the constitutional sense. Cf. United States v. Central Eureka Mining Co., 357 U.S. 155 . And a more or less vague clause like the requirement for due process, originally meaning "according to [379 U.S. 241, 278] the law of the land" would be a highly inappropriate provision on which to rely to invalidate a "law of the land" enacted by Congress under a clearly granted power like that to regulate interstate commerce. Moreover, it would be highly ironical to use the guarantee of due process – a guarantee which plays so important a part in the Fourteenth Amendment, an amendment adopted with the predominant aim of protecting Negroes from discrimination – in order to strip Congress of power to protect Negroes from discrimination.
This is a matter of regulating a business, not an individual. There are very good reasons for compelling a business to bend to the laws of the land. The owners of the Hotel rather than serve those it did not wish to could always have just ceased to operate. Case closed.
An individual is free to make choices. One may participate and one may not participate. Obamacare is compelling people to participate in a market. For what reason? What is the harm to interstate commerce should one choose not to operate a vehicle, choose not to own a home, choose not fly in an airplane, or choose to stay at home on a long weekend? Similarly in healthcare. Who should compel an individual to purchase insurance if he does not wish to? This is what Obamacare does. Why should such an act force people to act against their wishes without justification, without reason?
Thank you for congratulating me. But you, the great lawyer that you obviously are, had called my argument specious. Well Hudson, A Federal Court judge, didn't think so. He ruled against Obamacare.
Clearly you don't know much about the law and are only interested in learning about it after the fact. So now my specious argument has substance.
And what is your response? Well, he ruled that way because Conservatives always do. How sensible a response.
No dear James. Hudson ruled that way because he reasoned that the Act is despotism.
Now without the Severability clause Hudson was well within his rights to strike down the entire law, but he hesitated. All this is going to play out in the Supreme Court. Yes, the lower courts have 2 to 1 in favor of Obamacare. But this Act is quite different from compelling businesses to follow regulations in operation. This Act compels individuals to purchase a product that they may not wish to buy. If the Government is within its power to force individuals to act against their interests, then tyranny will abound.
And the Supreme Court appears to be catching on.
And Obama is getting cold feet. Why on earth would he attack the acknowledged arbiter in the matter as he did, and with lies. Because he knows and everyone else knows what's coming.
So you can dismiss the argument against tyranny all you wish, it does not change Hudson's decision. And it does not allay the fears of the Administration of an complete defeat.
This law is going down.
You say,
Business transactions are carried out by human beings. Violate their constitutional rights and the law is unconstitutional. So compelling a business to do transactions against its will is to compell the human being who is its owner to do transactions against his will.
So only human beings carry on business transactions. If its a business, then everything is done in the name of that business.
Just look at this gem, "So compelling a business to act against its will".
I'm sorry James, but a business does not have a will. Case closed.
If the owner of a business does not wish to rent rooms to every paying customer as the law demands, then he may withdraw from the marketplace. Now where in Obamacare does the individual retain the right to withdraw from the marketplace?
I note again that you totally ignore the legal claims brought before the court. You are too stupid for words. You ignore the fundamentals of legal interpretation, ignore the fundamentals of all modern commerce clause law, and ignore the cases which are against you.
You win. Remain forever stupid.
Hello James,
Yes, I am too stupid. Mr. Ferrara is too stupid. Judge Hudson is too stupid. And soon the Supreme Court will be too stupid.
And you are the forensic genius.
Thank you. A very well written analysis.
If the supreme court upholds the law, which I think they will, because mandating the purchase of Health Insurance is not different at all than mandating the purchase of Social Security Insurance (through a dedicated tax).
If I am right and you are wrong, you officially will look like a Big Fool, with your bald head and spectacles.
The US healthcare system is already extremely "Pro Market" more so than any other healthcare system in the world. It is, as a result, the most expensive, disproportionalty so, yet we are very very far from 1st place on measure of public health, like Infant Mortality or Lifespan.
What is true is our Pharmaceutical companies, Insurance companies, hospitals, and ambulance chasing attorneys are also the most profitable.
Instead of an individual mandate, if Congress had created a Health Insurance Tax for every taxpayer, (maybe with exemptions for those who participate in the health insurance market), this may have been deemed constitutional. However, my suspicion is that presenting it this way would have rendered the bill D.O.A.
Social Security is not insurance. It's a tax. Furthermore, social security is only taken from someone who performs work and receives pay. This healthcare law affects everyone, working or not. Even worse it requires everyone to do business with a private insurance company on a secondary market. Yes, it's exactly like requiring people to buy brocoli from a local supermarket. Finally, it's the most stupendous overreach of power by the fed against the states in the entire history of the country. The Supreme Court will have no choice but to overturn this monstrocity.
Social Security is not insurance. It's a tax. Furthermore, social security is only taken from someone who performs work and receives pay. This healthcare law affects everyone, working or not. Even worse it requires everyone to do business with a private insurance company on a secondary market. Yes, it's exactly like requiring people to buy brocoli from a local supermarket. Finally, it's the most stupendous overreach of power by the fed against the states in the entire history of the country. The Supreme Court will have no choice but to overturn this monstrosity.
"The US healthcare system is already extremely "Pro Market"" That must mean the government sanctioned AMA monopoly over the licensing of doctors and accrediting of medical schools is laissez -faire
Your argument is flawed.
Social Security isn't a product from a private corporation.
Car insurance is mandated at the state level, but there is still a choice to opt out of car insurance by not driving.
There is no opt out of Obamacare as it is forced upon you for merely being alive in the United States.
No matter which way you slice it, it is Tyranny.
"Social Security isn't a product from a private corporation."
It really doesn't matter if Social Security is from a corporation. Congress has basically unlimited ability to regulate, or write rules for, interstate commerce. Legal opponents didn't even try to argue that health care isn't interstate commerce, because supplies cross state lines, hospital financing cross state line, and besides there are lots of federal health care regulations.
Yes, but the issue at hand is not about health care; it's about health care insurance. Insurance is regulated at the state level and is not part of interstate commerce. What PPACA does is create commerce and then mandate that people participate in that commerce. Congress may have a long history of regulating the heck out of interstate commerce but at no time has it created a product and then made people buy it.
Look up the necessary and proper clause.
So long as Congress is regulating health care, under commerce clause authority, then they may also regulate health insurance if such regulation is necessary for the regulation of health care to work.
Besides, on a common sense level, insurance is the defacto way that health care is financed. You can't separate one from the other. Justice Kennedy made that point during oral arguments, by the way.
Social Security is not insurance its a tax??? Try this. Upon retirement you receive a benefit for which you paid a premium for. So you got it backwards. Social Security is retirement INSURANCE and not a tax. If you were to purchase this type of retirement INSURANCE in the private sector you can be sure that your PREMIUMS would be much higher than the 6.5% your now paying.
So is that why they call it a PAYROLL TAX? BTW, by reducing the amount of payroll taxes that individuals pay as a way of stimulating the economy, it is underfunding the amount needed to pay social security benefits. In any event, social security payments have been coming out of the general fund for years, not an exclusive set aside of social security "premiums".
it is NOT A TAX; THAT. AND THE OMISSION OF THE SEVERABILITY CLAUSE WILL DOOM THIS BOGUS BOONDOGGLE.
Obama cares about his legacy, nothing more, which is why there is a media blackout investigating his true identity: Bari Malik Shabbazz, son of Malcolm X.
would you have voted for Malcom X's illegitimate stuttering son who cannot utter a complete sentence without a teleprompter or earpiece?
who cannot enunciate "to" and says "ta"?
who relinquished his Illinois Bar License?
how obama got this far was merely on "pull". that will be documented in the annals of history.
it is NOT A TAX; THAt, AND THE OMISSION OF THE SEVERABILITY CLAUSE WILL DOOM THIS BOGUS BOONDOGGLE.
Obama cares about his legacy, nothing more, which is why there is a media blackout investigating his true identity: Bari Malik Shabbazz, son of Malcolm X.
would you have voted for Malcom X's illegitimate stuttering son who cannot utter a complete sentence without a teleprompter or earpiece?
who cannot enunciate "to" and says "ta"?
who relinquished his Illinois Bar License?
how obama got this far was merely on "pull". that will be documented in the annals of history.
Then how is the government able to keep it, under all the right conditions? Seems like if it's an insutance, I should be able to will that upon my deat th whomever I want, but that's not the case
social security is different, you are paying into a government system. Affordable healthcare requires you to buy a private service. very very different.
We are talking about the individual not the industry. I dont have to conduct interstate commerce by not buying health coverage. If I decide not to buy anything am I conducting any sort of commerce at all? If I am not conducting commerce how can it be regulated under "interstate commerce"?
We are talking about the individual not the industry. I dont have to conduct interstate commerce by not buying health coverage. If I decide not to buy anything am I conducting any sort of commerce at all? If I am not conducting commerce how can it be regulated under "interstate commerce"?
There is a very important case called Wickard which proved you are wrong. The farmer in this case was not buying anything across state lines and claimed this meant that a "grain price support" law could not be applied in his case.
The court ruled, not just in this case but in every subsequent case, that so long as the farmer's behavior had 'substantial economic impact on interstate commerce' he was in fact subject to regulation under the commerce clause.
So he lost his case. And you were proven completely wrong.
If this headline proves to be true, it will make my day and the day of millions of Americans. This out=of=touch president is wearying this old Italian nearly to death!
Nothing is more important to conservatives than to make sure insurance premiums go to weathly shareholders of insurance companies and executives of drug and insurance companies. The rates going up correspond to wealthy shareholders and excecutives raking in the profits at the expense of people's lives. The damage they do is every bit as bad as the meanest gang members in LA.
Sounds like a conspiracy.
Those waskily wepublicans are scheming again in their bid to take over the world! You'd better quick kill off capitalism while you have the chance and create the progressive utopia you've always dreamed of!
Problem is, Obamacare was a big give away to insurance companies and drug companies.
Obama sold us ALL down the river to two of the most hated industries of liberals: The private insurance market and the drug companies.
Obamacare forces EVERYONE to purchase a product from private insurance companies. Whats next? Mandating everyone buy a chevy volt?
What's important is preventing the government from controlling us like drones. Not all of us want to give up the personal liberties you want to give up. If you're so worried about premiums going to republicans why don't you fight this bill? Obviously it'll just enrich the people you so despise… You can't have it both ways.
"Problem is, Obamacare was a big give away to insurance companies and drug companies."
Oh come on. It is a trade. Insurance companies get a guarantee that everyone will buy insurance. On the other hand, citizens get the guarantee that they won't be treated like they have bubonic plague by insurance companies simply, if they get cancer, even after they are cured!
Suppose you had a kid born with a heart defect. How much would it be worth it to you to know your newborn daughter won't be treated as uninsurable all of her life?
The only way the insurance companies win is if the mandate is deemed constitutional (and even then it's no slam-dunk). Without all the young and healthy people in the pool, the mandates that no one can be denied coverage and that premiums can't be based on pre-existing conditions or age or general health or any of the other actuarial data insurance companies use will sink them (which, really, is the progressive hope in the first place). Now Big Pharma, that's another story. All insurance policies will have to cover pharmaceuticals, so Big Pharma can do a happy dance. At least until government comes in with its price controls which eventually will happen.
"The only way the insurance companies win is if the mandate is deemed constitutional."
One could debate the policy issues, but the point I made here was that like insurance itself, the transaction benefits both the company selling it and the person buying it.
Only if the person wants to buy it! Why should I be forced to buy something I dont want?
There are four answers.
1. The first is that those who do not buy health insurance are knowingly taking advantange of the fact that they will still get health care, on an emergency basis, which will be paid for by those who actually pay for their health care.
2. The second answer is that there are all sorts of laws that limit your freedoms in some way, whether it is the Federal law requiring states to adopt a 0.08% standard of blood alcohol for DUI, or the law requiring you to sign up for selective service to make drafting you into the army that much easier.
3. The commerce clause in the Constitution grants the Congress broad authority to regulate any behavior which has "substantial economic effect on interstate commerce".
4. Because the theory that the Congress cannot compell you to enter into a commercial transaction against your will has been tested, and failed, in the Heart of Atlanta Hotel case.
If you don't like the fact that the Congress can pass laws consistent with the Constitution, I suggest you leave.
@James: And you know that #4 is false. The Heart of Atlanta case upheld congressional authority to regulate business transactions in violation of the Civil Rights Act of 1964. Regulate businesses not individuals. Heart of Atlanta was not about compelling individuals.
@Ardent Guy
I know you like to pretend that you can compel the business to conduct a transaction without compelling the OWNER to do that same thing.
Like, for example if a new federal law required businesses to display a crucifix, of s specified size, in their front window. Requiring the business to do this is also a violation of the rights of the business owner.
Eat a dick Peter Ferrara you selfish, America loathing bastard!
Great counterpoint Phil Laugher!! Typical lefty response when you have no factual argument to put forward, which is most of the time!!
"President Obama is not stupid." That part you have correct.
Did anyone expect Peter Ferrara to say anything differently? If the market were going to fix the problem it should have done so by now. What is going to happen is that due to our inability to compromise, each side's method of reforming the system will be tossed out or overridden by some means so that no change or little change takes place. Meanwhile, the poor and especially uninsured will keep seeking treatment at hospital emergency rooms where the rest of the American public will be forced to help cover those costs one way or another, as they are today. The market has been the cause of many of the problems we see in healthcare today. I wonder why it is Mr Ferrara thinks it will somehow now be its savior?
The Market is not the problem. Insurers are the problem. A three-party transaction is NOT capitalism.
Return health insurance to bonded insurance. You take a loss, you get paid. No more of this Payer garbage.
The market WILL be the savior and here's how. Either the cost of insurance will be unsustainable and the health insurance industry will fold
They will stop being crooks and contribute to the well-being of the entire system. Pay doctors more and on time. Ask them to reduce rates by increasing approvals, for example. (You know your doctor only charges $50 for a syringe because your insurance will only pay 10% on a syringe, right?)
Obamacare SAVES the insurance industry. It SAVES the crooks. They see the end of Trillion dollar profits on the horizon. The ONLY way to keep that much dough is to get more customers. Oh, I know, make EVERYONE participate. Federal. Mandate. Solved. The bastards.
"The Market is not the problem. Insurers are the problem. "
I don't know why you hate insurance companies so much. They help us when our car is in an accident, or when our houses are damaged by the weather, and they provide the means by which people can get $200,000 in treatment when they have a heart attack.
There is exactly one injurious thing that insurance companies do. And that is the so called "
cherry picking". This creates all sorts of problems, for example when you or your employer have been paying premiums for 25 years and you get laid off and can't get insurance because of a "preexisting" condition.
The solution is: Don't allow insurance companies to pick only the "best" clients. Make them insure everyone. Of course we don't want people cheating by waiting until they are in the ambulance before buying insurance. Hence the requirement that individuals buy health insurance before they are in the ambulance!
What about those who choose to be in bad health? Do you want to pay for fat people and smokers costly bad habbits? They drain the system;
Hello James,
Then the insurance rates will go through the roof for most of us. None will be able to afford the premiums.
Great planning.
"Then the insurance rates will go through the roof for most of us. None will be able to afford the premiums."
You appear to reacting to only one half of the equation, that insurance carriers will stop picking only the best clients to insure.
The other half of the equation is that all Americans must get health insurance.
In the situation where we have BOTH, the requirement that health insurers must provide insurance to everyone who asks, AND every American, whether sick or not-yet-sick must buy insurance… The average cost per premium will be determined by the total amount of Cancer, Heart Disease, Diebetes, etc in the entire country.
Since getting health insurance is not known to cause people to get heart disease or any of the other illnesses I have listed, it is not logical to assume that the total amount of disease in the Country will go up, or health insurance premiums.
Indeed, the people who model rising health care costs say all say that getting everyone covered by health insurance is an essential first step in bringing health care costs under control. Certainly, it is an essential step to END THE PRACTICE of the insured paying for the unpaid care costs of the uninsured.
I can give you another reason why having ALL Americans may not lead to higher premiums, but in fact save money: Malpractice lawsuits.
A major reason that the victim in a malpractice lawsuit may seek, an potentially win, million dollar judgements is that a lot of the money will go to take care of the future medical care needs of someone injured by poorly preformed procedures.
If everyone has health insurance, that particular justification goes away. In fact, Britain does not allow malpractice suits except in the most egregious cases.
"The [individual mandate] is essential to CREATING effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold."
Thank you for such a wonderfully written article and for including the statement above. It is undeniable that the intent was to "create" commerce (and I would say ENFORCE commerce) – not just to regulate existing commerce. This is a brazen overreach of Federal power.
"It is undeniable that the intent was to "create" commerce (and I would say ENFORCE commerce) – not just to regulate existing commerce."
You are totally wrong about this, and I can prove it.
A black family goes to a hotel called the "Heart of Atlanta". The racist owner sues the federal government claiming that if he is forced to rent a room to black people, against his will then the Congress is "creating" commerce, creating the commercial transaction which he does not want to be a party to.
Well, the owner of this hotel lost. And he was forced to enter into commercial transactions against his will. And the Congress did "create" commerce.
But the Congress did not overreach.
The commerce clause allows the Congress to regulate interstate commerce, even if it means forcing you to enter into a transaction against your will.
There is no law saying he has to rent rooms though. It is saying that if he does rent rooms he has to be fair about it.
"There is no law saying he has to rent rooms though. It is saying that if he does rent rooms he has to be fair about it."
@aaron Henke
Ah, but that is not the question here. We know that the Congress has sweeping authority to regulate interstate commerce and that this includes the ability to regulate behavior, whether in the case of a hotel owner or the farmer in Wickard, which has substantial economic impact on interstate commerce.
It is not difficult to demonstrate that those who choose not to buy insurance are responsible for the hundreds of billions of dollars being paid by those who do buy insurance, to pick up the cost of uncompensated care.
Therefore, the ACA law is on firm constitutional grounds as far as THE STANDARD for all modern commerce clause cases is concerned.
But, like the Heart of Atlanta case where the hotel owner claimed a violation of the 13th amendment, the opponents (appellants) in this case raise a side issue: Can Congress ever compell anyone to enter into commercial transaction against ones will and thereby create the commerce being regulated.
The Heart of Atlanta certainly answers that in the affirmative: In at least one case someone (actually a class of people, being racist hotel owners) was compelled to enter into a commercial transaction.
These observations PLUS the strong presumption of Constitutionality — the courts being the unelected branch are supposed to assume that the Congress is acting lawfully — make a compelling case that the ACA Is constitutional.
Putting all these fine legal arguments aside for a moment, one fact overshadows all others:
The Supreme Court have ruled in favor of every economic regulation passed by Congress for the last 80 years.
Yes, the court occasionally declares something unconstitutional, but not economic regulations. Read the Commerce Clause again and I think you will see that any other result would violate the spirit of this commerce clause.
James – I really appreciate your thoughtful example. However, can you give me the case name and court docket number if you have it? I would be interested to study this one out. Although this may be overly simplistic, I wonder if the Civil Rights aspect of the case was deciding factor.
@saphirus 1
The ruling can be found here.
But consider, if indeed the civil rights aspect was controlling in deciding the Heart of Atlanta Hotel case, despite the fact that the Congress has no ennumerated 'civil rights power', then would not fairness require that the humanitarian effects of the the health reform law — for example permitting a newborn child to live her life without discrimination despite being born with a heart defect, for example — be the deciding factor in the current debate?
Both the civil rights act and the affordable care act are founded upon the Congress' commerce clause power. One difference between the two is that the constitutional foundation of the ACA can also draw from the 'necessary and proper' clause and the taxation powers. Both of which are considerable powers in their own right.
(I have chosen to purposely neglect the necessary and proper, and the taxation powers, so as to focus my argument here.)
Overtuning the entire law will result in hundreds of thousands if not millions of people dying. Conservative activist judges who just love death panels. The well truly do not want to care of the sick. Conservatives hate the law until they have a sick family member. What a bunch of hypocrites.
I have to disagree. There are other alternatives to the "individual mandate" that should have been explored and hopefully now will be. Once your Federal Government can direct you as a US citizen to purchase something that you do not want, for the greater good of the entire US market, (and punish you if you don't) a dangerous new precedent is set.
Just like the hundreds of thousands if not millions of children who died because President Bill Clinton reformed welfare.
Get serious, don't make these kind of claims, they just make you look uninformed.
There is a pervailing philosophy that it is the Federal Government's responsibility to swoop in and be a saviour to it's citizenry. The Federal Government is to have limited, enumerated powers. If you contend that an individual mandate should be enforced at a state level, I would have a hard time arguing with you. I believe they actually have a right to do this , just as they can make you purchase auto insurance. So if you believe in the separation of powers, and the Constitution as it is written, then I would think the next logical approach would be to argue this at the state level. I listened very carefully to the Supreme Court Oral Arguments. Although I am just an average Joe citizen, I am not wholly uninformed.
You do realize that everyone dies?
Yes, and I certainly don't want the Federal Government determining whether or not it is of cost benefit to give me certain treatments to prolong my life or not. I might be off their actuary chart. I am very concerned about the possibility of market failure which results in rationed care. That would be bad for everyone.
"The Federal Government is to have limited, enumerated powers. "
True, but those powers are almost unlimited. For example the tax power. Congress can make taxes as high or low as they want. They can use this power as a means of influencing family decisions, like whether to buy a house, install a super-efficient AC unit, and even if you choose to have kids.
The commerce clause is just as sweeping, just as powerful, and almost as limitless. That's because we don't live in 13 colonies any more. We live in the age of Amazon.com and FedEx and UPS. America is a million times more economically integrated than they were in 1787. Everything really is interstate commerce now!
This is the way the founding fathers wanted it. They had a system with a weak federal government, when the Articles of Confederation, not the Constitution, was the law of the land. And the people and the states rejected the Articles of Confederation and replaced it with the powerful federal government under the Constitution!
Hi James – again, thanks for your thoughtful arguments. However, I don't agree that we can categorically claim "this is the way the founding fathers wanted it." The statements you made above is actually is the essence of my argument: the Federal Government already has too much power. My opinion is that the founding fathers would have hit the brakes. This ACA puts us on a slippery slope – it risks an overly broad interpretation of the commerce clause which will usher in more opportunities for control of its citizenry. If I must purchase a product for the common good of other US Citizens, what else must I purchase should the market crash and our country has a major debt crisis? I don't like the direction we are going in and I believe it is dangerous. During WWII, the Federal Government used advertising to ask its citizens to purchase War Bonds. They did not penalize them for not doing so. It was just the right and patriotic thing to do. So, does our Federal Government not trust it's citizens to rise to the occasion and collectively and voluntarily do what is in the best interest of the country? Is this why the individual mandate was enacted?
And the real reason it'll overturn the healthcare law is that it's got five republican justices, two democrat justices, and two apolitical ones.
So the law will be found to be unconstitutional with a 5-to-4 ruling.
Another CATO institute Goldwater drone from Arizona who was one of Jack Abramoff's mouth pieces (for a fee, of course) and defended the financial scam run on the Choctaw Indian tribe and the atrocities Abramoff and the Tom Delay crew run in Saipan.
You, sir, have the credibility of a tick.
Why is it when lefties like you can't argue a point with facts such as the one that Mr. Ferrara puts forward that you have to resort to attacking that person?
And by the way, a tick is an ectoparasite that lives by hematophogy or sucking the blood out of its host. Sound familiar?? Can you say democrat??!!
If you what you say is true, then Obama is forcing natural selection, and we'll probably be better off for it. It sounds like the current scenario isn't working (healthy people getting insurance, sick people not.) If this does make insurance company rate's skyrocket, then something's going to have to give, probably that $156 towel they used in your last operation will finally go down in price to the Walmart rate.
Obama's attack on the Supreme Court is yet another article of objective evidence that our President governs in contempt of the Constitution, which is a euphemistic way of describing his purposes as manifestly Treasonous.
Mr. Obama is a master of "lying en-passante" as a way of creating a false premise, in support of an outrageous assertion. We heard it just a few days ago when he casually referred to the 'fact' that "we tried capitalism, and it didn't work", with the follow-on that someone would have to be "insane to keep trying the same thing over and over, even though it wasn't working".
To sum up, it seems Mr. Obama is in the process of rolling out the follow-on narrative to "Hope and Change", which seems to be "Crime and Punishment". Those of us who were the instruments of his failed initiatives during his first term, will be punished during his second, up to and including the Supreme Court.
That we find ourselves facing such a threat from the Oval Office is incredible enough…that so many Americans are oblivious and/or indifferent to it, an incipient tragedy for a nation once considered the last best hope for humankind.
The Courts have not overturned an economic regulation of interstate commerce in 80 years. And here is a relevant example of Congress using that power:
If you are in a group (employer provided) insurance plan, that plan MAY NOT discriminate against people with "preexisting" conditions. By Federal law.
You don't see anyone challenging that law –which goes back to the 1970′s.
I don't know where you get that. There most certainly are pre-existing condition exclusions in employer-provided group insurance plans. They generally exclude conditions that have been diagnosed or treated within the six months prior to enrollment. There are conditions that are exempt, like pregnancy.
"I don't know where you get that. There most certainly are pre-existing condition exclusions in employer-provided group insurance plans."
"One of the most important protections under HIPAA is that it helps those with preexisting conditions get health coverage. In the past, some employers' group health plans limited, or even denied, coverage if a new employee had such a condition before enrolling in the plan. Under HIPAA, that is not allowed. If the plan generally provides coverage but denies benefits to you because you had a condition before your coverage began, then HIPAA applies."
Any more questions?
The definition of a "worthy project" is any project done at public expense that occurs in either my district or my state; the definition of a "costly boondoggle" is that very same project that occurs in a district or state other than mine. The definition of "supporting the consititution" is any decision made by the Supreme Court with which I concur; the definition of "judicial activism" is any decision made my the Supreme Court with which I disagree. I've never known this to be otherwise.
Lets face reality. Even those who passed this bill know it is a mess and nobody wants it. Nancy Pelosi has given how many "waivers" to just those in California? I believe it is now close to 400. Health and Human Services first told the States they better do what HHS says or they will pay. Now, HHS has granted over 1500 waivers and let's not forget the brilliant HHS Czar, Sebelius when she came out and said, "37 million Americans will now have health insurance." Well, after all of her bullying, threats and demands, guess how many Americans Sebelius has signed up for her great insurance scam? That's right, less than 14k. Less than 14k nationwide! (More people bought yugos than that). The PPACA is a total and complete failure. Whether or not the SCOTUS strikes it down or leaves it be, the PPACA will still die, because nobody will buy into it. Nobody can afford it and nobody wants the federal government controlling our doctors or our lives. Period.
Those waivers are temporary. They all expire when the law goes into full effect.
wait … this guy some director at the Heartland Institute …
the place that tried to help RJ Reynolds and the cigarette companies prove that smoking really *wasn't bad for you .. is now at the forefront of the GW denier cabal
and we're supposed to value his opinion about **anything???
I don't know that I have read a more infuriating article. Given that the premise of your thesis is correct, that there were ways to "fix" the law then why in the world didn't the repubs propose them when the law was being written. Instead, they just acted as obstructionists so they could b*tch about it after the fact. However, in fact, the premise of your article is not correct. The individual mandate was based on GOP ideas from years earlier – their mantra of "self repsonsibility". Purchasing the mandated insurance from a private company was the "free market" solution. I wish Hillary-care had passed in the 90′s, we would all be better off today. Until we get the blood-sucking insurance companies out of the middle of healthcare and heavily regulate the prices that can be charged for medical services and drugs, the price will continue to spiral upward. Everyone is entitled to healthcare, anyone who does not believe that either has never been sick or never had anyone close to them become seriously ill and/or completely lacks basic human compassion. I beleive the author of this article falls in the latter category.
If everyone is entitled to healthcare then those who provide such services cannot legally or morally charge for these services.
It would be too blatant and unpopular to enslave doctors and force them to practice so you want your beloved federal government to enslave us all to pay for each other instead.
Liberalism really is a sickness.
It may surprise you to know that if people don't have healthcare insurance, can't afford it whatever, they most often seek very expensive emergency care//ED services. If they can't pay, which is often the case, the cost is passed on to you through higher costs. Something you might want to think about
"If everyone is entitled to healthcare then those who provide such services cannot legally or morally charge for these services."
I direct your attention to the case Heart of Atlanta vs United States. In this case, the Court upheld the Civil Rights Act of 1964 and required the gentleman to enter into commercial transactions against his will.
Was he required to provide rooms to African-American families? Yes he was. Was he required to provide rooms to African-American families for free? No he wasn't.
Nice strawman there federal farmer. Everyone is entitled to have the right to pay for healthcare. No one is saying it should be free. We should pay for it. Just like a teacher should be paid for teaching. Your argument is fallacious and laughable.
Thanks for taking the time to explain in depth this issue. It's interesting to see no one coherently arguing the other side of this issue, other than to send inflammatory remarks like "Judicial Activism".
I love the last paragraph. It would be easy to write a better bill that everyone would agree to? It is the president standing in the way? What planet is this guy on?
The individual mandate is necessary for the bill to work. Absolutely, spot on, I think almost everyone agrees. I don't think the mandate can be seen as anything other than an unConstitutional police action by the federal government. The law is going down.
Now the Democrats need to stand firm and ACCEPT NO COMPROMISE. Don't fall in for the half-way measure again. A true Single Payer / MediCare for all system is the only solution to our Health Care crisis. Don't push the problem on to the next generation. Join the rest of the world and nationalize our basic health care system.
Oops….I think I step in a Pyle of something!!! You're kidding me right? Join the rest of the world so when I do get really sick I'll head on over to the US to get treatment at a renowned institution like the Mayo Clinic because I know I'll be seen, treated and cured there.
Oh, I forgot that once we socialize our healthcare it will become a Pyle of something just like the rest of the world and I won't have that option anymore!!
Virtually every medical economist agrees that an individual mandate is necessary. The picking of only the "best" clients by the insurance companies, the problems with insuring people who get laid off, the massive cost shifting from the irresponsible people who don't buy health insurance…
These are the problems with the current system, and none of them can be solved without something like an individual mandate.
What if the individual self insures and receives tax reductions when the personal insurance is used?
There are many solutions to the problem. A forced mandate for the individual is only one of them, and more a solution offered by a socialist regime or what is known as a tyranny.
Dick Cheney's heart transplant likely cost a million dollars. Which makes more sense, buying an insurance policy where everyone pays the per capita cost of health care, or locking $1 million dollars in a bank account, to self-insure for all possible medical risks?
And unlike the medical economists, we have just scratched the surface of all the problems caused by adverse selection when insurers pick and choose their clients. For example, you have the rent-seeking behavior on the part of insurance companies who profit by taking previously insured persons and turning them into "preexisting conditions" when they get laid off.
To solve that, you must at minimum have a rule that allows people who have paid for insurance for some period of time to keep their insurability status when they get laid off or go to another employer who does not offer insurance. Not for a year, and not at unaffordable premium levels greater than that which the individual paid under her previous employer sponsored health care pan.
In fact, no solution is satisfactory that does not make everybody to be treated as insurable — even a baby born with a heart defect.
And the only solution I am aware of that meets that need is where everyone has insurance all their life, and insurance companies are prohibited from discriminating against those with preexisting conditions.
Okay, as an independently minded individual, who loathed Obamacare but wants real socialized medicine, have you taken such a Constitutionally Correct stance regarding the fascist TSA? I'm on the lookout for such a strong condemnation from the mainstream media, such as Forbes. And I have yet to see it.
So now all laws have to be passed by more than a filibuster proof majority?
Lets get down to brass tax: the Constitution does not explicitly grant the Supreme Court the power of Judicial Review. In 1803, the Supreme Court wrote an opinion that the Supreme Court has the power to invalidate statutes because it's job is to protect and uphold the Constitution. Congressman take the same oath, so I wonder why the Supreme Court's oath is more valid than Congress' oath. If we have a system of checks and balances, who checks and balances the judiciary? If I remember correctly, it was the Judicial branch that's supposed to be the least trusted of the three. A good example of why that is exists today. Does the Supreme Court uphold the Constitution or political precepts? Is the Supreme Court capable of being an independent judiciary able to rise above personal politics? No. It's no wonder why a Conservative court is calling out a president for saying that judicial activism is unprecedented. Where are the liberal judges asking for homework from the president? The U.S. judicial/political system just went bonkers.
It's probably time for us to revisit Marbury v. Madison and stop the foxes from guarding the henhouse.
It's time for us to revisit Compact Theory.
I think you took too many liberties with your interpretation of the article.
The Supreme Court can invalidate -anything- that is unconstitutional, including laws from other other branches. Including laws from States. If it's unconstitutional, it's subject to being invalidated by SCOTUS.
Part of your opinion works against you. Indeed, the foxes are hand-picked by other politicians. The fact that they still bicker, fight, and invalid one another is the whole point of checks and balances (dare I say, it's the only part of government that still WORKS). Now… Should ALL the foxes get replaced at the same time… we'd best move to Canada.
Oh, Oh…..that would be "brass tacks" sir!!! Must have been that left leaning drivel in your head that caused a severe "Fruedian Slip"!!
Obama doesn't respect the Constitution or the Citizenss of the United States.
Obama was never a constitutional law professor or any kind of professor. He was, as he has ever been, a token–in this case a "guest lecturer" who taught only the 14th amendment with a racist "crit" slant. You can put as much lipstick as you like on the affirmative action pig, but it remains as dumb as box of rocks…..
"Obama was never a constitutional law professor or any kind of professor."
The University of Chicago says you are a liar. But thanks for the input.
If Mr. Ferrara is correct in his analysis that constitution does not empower the government to mandate individuals purchasing commercial products like heath care insurance, and court rules as he predicts; do the same principles apply to Federal Reserve currency, a product of a privately owned banking system?
No, the same principals do not apply. There is a separate power that States are NOT allowed to create their own currency. That is not piggy-backed onto Commerce.
It is true that the Federal Reserve is a privately owned corporation, the twelve regional Reserve banks owning all of its non-tradeable stock, therefore Federal Reserve currency is a private brand of money, a commercial product, one produced in several states, evidenced by the bank of origin being identified on one-dollar notes.
With the exception of coins, Federal Reserve currency is the only U.S. money designated as legal tender that is available in the economy, a defacto mandate forcing American citizens to use the product of a commercial enterprise.
If the government's mandate to buy health care is unconstitutional, then so is its mandate to use Federal Reserve currency.
Fine, strike it down. But when the cost of healthcare reaches terminal velocity (which is sooner than you think) don't say we didn't warn you. So all you old conservatives moaning about government overreach and rationed care, when you can't afford your life saving medicine or you are widowed with a large medical bill you can't possibly pay… that's just the free market working, you get to suffer as the stock holders polish their Jet Skis. No big loss though, if you can't generate capital then your life isn't worth much anyway.
When that bubble hits and the pharma companies stop making a profit, they will lower their prices and start doing business outside of the insurance silo. Or they will fold. This is the beauty of capitalism. It's been breaking because of the third party system of Insurance Payers. Car insurance does it right. It's a Bond. In the event of a loss, you get a payout, calculated by an Actuary.
Medical insurance needs to fold. Doctors can charge a regular rate, get 100% of their payment and the insurance companies (and the lawyers!) can get their hands out of it.
What you say is absolutely try. It's going to bubble. Obamacare SAVES the Health Insurer Industry. It's a freaking joke.
*What you say is absolutely TRUE*. Sorry, typo.
Medical economists warn that employer based insurance is trending downwards. This law would immediately and permanently result in almost all Americans having the security for their families of having health insurance.
Hello James,
So would a tax deduction for those who self-insure.
That last answer really is bizarre. Where is your team of medical economists to back up this claim?
Sorry I don't really see what the fuss is all about for healthcare, a very similar mandate is working quite well in my native Zimbabwe. In fact we are now down to a 5 year wait to get a physical in many large areas.
LOL. Love it.
And France, recognized by the world as having the best health care system in the world. (The USA is number 15, I believe.) and Germany. And Britian, home of Reagan's buddy Margarett Thatcher and famous physicist Steven Hawkings. And Canada, a country which a heck of a lot of Americans are willing to move to, just to get health care from a civilized country.
Zimbabwe is poor. The US and Europe are rich. See the difference?
Canadians, we are told, have a better system because they live longer than Americans. Are there other demographic factors involved—didn't they also live longer before they nationalized their heath care system? Is it a better system because, although some prescription drugs are sold at a lower price, many more are not available in Canada at all? Is it better because Canadians wait an average of 17 weeks for referral to a specialist? Is the fact that Canadians come to the United States to spend more than $1 billion a year on health care an indication that Canada has better health care? One wonders why this superior system resulted in the Canadian Supreme Court striking down the law forbidding private insurance "because access to a waiting list does not constitute access to health care."
Hello Aaron,
You are correct. Canada has coverage for a set level of services. Just don't get sick because the waiting lists are very long for the crucial services.
I had a sudden pain in my leg such that I had trouble walking. Called my doctor's office and they said they could see me in two weeks. I suppose the alternative to waiting is to have many more doctors, some of whom would be idle, waiting for you to call.
Partisans tend to lie about Canadian health care. I know this much, the person credited as the "father of the Canadian health care system", To my Douglas, was voted by Canadians to be the greatest Canadian of all time.
Even conservative governments in Canada (also England) would rather lose their right arm than being accused of introducing an "American style" health care system.
The father of the Candian Healthcare system was named Tommy Douglas.
It is my hope that the court will deem it unconstitutional. Obama has done more damage to this nation that I hope people will realize in November and hand him and his hypocrite party losses than last time. What is it with liberals hating 'the rich' as if none of us 'poor' had any opportunity to cross the line. This greatest nation on earth gives us all equal opportunity to achieve greatness. If it wasn't for the rich, we would still be stuck living in caves and chasing our food every day. Liberals make my blood boil every time I try to understand their logic>There's very few things I agree with them on.. very very few. Federal government: please get out of the way.. let us heal our nation back.
Speaking of damage done to the country, can you produce your birth papers? Right now. Or go to jail.
Those Republicans have "helped" America sooo much. Especially when they collapsed the economy!
Despite the Constitution and laws cited, the Federal government requires every wage earner to buy Medicare insurance and it mandates all workers pay into a retirement fund known as Social Security. So there is precedence. I am opposed to Obamacare because it is a bonanza for hospitals, doctors and drug companies while rubbing our private health insurance. It parades greater efficiency (electronic medical records, better hospital discharge planning) but expands coverage that will further bankrupt the Medicare system. It simply merges a pool of private insurance money that younger healthier workers contribute to with a pool of money that older retirees have already contributed to. Regardless of whether it passes into law or not, fee-for-service, on-demand health care must be abandoned. Doctors must be placed on salary and waiting lists for care must be implemented. There is simply no money. To try to insist the current system must be maintained is complete folly.
Those are taxes that get paid directly to the Federal Government. While I agree they are *almost* illegal, they are in fact Taxes, and the FedGov is legally empowered to enact taxes.
Forcing one person to do business with another Private Person is illegal. Period.
Neff said, "Nice job."
Nuff said.
Easily the best article I've read on why Obamacare should be overturned.
What is the limiting principle of Congress's Commerce Power? This is the same question as the broccoli question.
The broccoli question presupposes that the federal government, that is, the Congress and the President, are independent from the electorate whom they represent. They're not. Our elected officials represent our interests and as long as they exercise one of their enumerated powers in a reasonable manner when enacting laws, and do not violate guaranteed individual constitutional rights or freedoms, the substance of their laws is not for the Supreme court to criticize or override. That is within the prerogative of the electorate. The electorate is the limiting principle of Congress's Commerce Power. This is how our constitutional democracy was designed to work. Why are so you so afraid to let our democratic republic work?
It is better for us as a nation to let the legislative process undo what it has done than ask the the judiciary to overstep its bounds and undo it for them This approach will preserve the integrity of the constitution, the founding ideal of representative democracy, and the separation yet balanced division of governmental power.
Well thought but you ignored the part about having the judicial branch protect us, too. This is… updated with the 11th Amendment:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.)
So unless you're proposing a repeal of Amendment 11, your own argument is that you let the government do its job – in this case, let SCOTUS do its job.
You misread what I said. I did not say the Supreme Court does not have the authority to hear the case. I posited that the Court's authority is limited too and then explained how so in Commerce Clause cases. Neither the Constitution nor the Court's seminal interpretation of Its authority, in Marbury v. Madison, does NOT give the Court the power to act as a supernumerary branch of government.
CORRECTION: The last sentence in my previous post should've read –
Neither the Constitution nor the Court's seminal interpretation of Its authority, in Marbury v. Madison, gives the Court the power to act as a supernumerary branch of government.
There are limiting principles here. In the Lopez case, overturned the Gun-Free School Zone Act, saying that Congress could only use the Commerce Clause power where there was substantial economic impact on interstate commerce.
Note that, like the President said, the court has not overturned a major economic regulation by Congress in 80 years. Lopez proves the rule by virtue of the fact that it was overturned specifically because the court found there was basically no economic effect on interstate commerce.
Thank you, Mr. Ferrara, for a well-reasoned argument why the individual mandate is unconstitutional.
There are other arguments–moral, political, economic–against the individual mandate.
As a matter of morality, no one has the moral authority to use force to compel anyone to buy health care insurance — whether they want it or not — and then to dictate what type of coverage they must "choose" — and then, by implication, to dictate what they will have to pay for insurance, month after month, for the rest of their lives (until on Medicare) — and then, by implication, to dictate what health care goods and services they are allowed to receive from physicians, hospitals, and other health care providers.
The individual mandate is immoral as well as unconstitutional.
Every year, uncompensated health care costs result hundreds of billions of dollars burden being placed on the shoulders of those responsible enough to buy health insurance BEFORE they are in the ambulance.
So, you have everything exactly backward. All of us bear the risk, today, that we will need medical care. Those who choose not to buy insurance are making a choice that someone else can pick up the tab on their behalf.
That is called "moral hazard", and you just DEFENDED it.
I don't like the idea of forcing people to buy things, but looking at the big picture, it helps people much more than the the previous system, so yes, it is moral.
I'm glad this article and author states very clearly WHY the "Obamacare" health law will be ruled unconstitutional, and struck down. I agree that Obama must believe most Americans are stupid (must be true–that's why Obama won the election. I voted for him–I'm well educated; I just fell for a smooth sales trick when he was running for office!)
Mr. Shook,
The author did you a disservice, by totally failing to discuss those cases, like Heart of Atlanta Hotel v United States, where a person was forced, against his will, to enter into commercial transactions against his will.
Indeed, a careful analysis of foundational Wickard case will show that the farmer in this case was subject to commerce clause authority because of the economic effect of his negative actions (not buying grain from the market), not the positive actions (growing the grain and feeding his cattle).
The court decided that his actions could be regulated because of its effect on the price of wheat in the wheat market. But growing grain cannot directly affect the price of a commodity in the market. And feeding grain to one's own cattle cannot affect the price of grain in the market either. It was only the negative action, that of not buying grain from market that can have such effect.
By the logic of those who claim that Congress cannot "create commerce", the farmer in Wickard should have won. But, he lost.
Great read. Thanks for the article.
Lets see if I understand. The Democrats focus on lives, (Damn their misguided bleeding hearts) and the Republicans focus on money, while quoting scripture.
I see many comments about Capitalism, in these posts. They are correct. But its not Free Market Capitalism. Let me know if I spelled O_L_I_G_O_P_O_L_Y
correctly. The health insurance industry has become the equivalent of a utility, and should be regulated as such.They fix prices with a wink and a nod. Capitalism is the enemy of a free market. Thats the nature of the system.
I fully agree with the legal argument here. Assuming the writer is correct and the whole law is struck down, I am going to be extremely interested in reading every word of every dissent the liberals must be writing now. They will be in a position whereby every single word they write will be analyzed by sharp Constitutional experts in addition to nobodies like me. I would not be jealous of them because the women on the Court and Breyer are going to have to come up with a bunch of junk to help the left's messiah, won't they?
I tend to think those dissents will embarrass the writers for the rest of their careers–and all because their messiah demanded it.
No need to wait. The Liberal view is that the EXACT SAME rules that applied in other Commerce clause cases should apply here. The Conservative view is that a novel new theory, that you cannot regulate inactivity, applies.
Which woud have resulted in the exact opposite finding in Heart of Atlanta vs United States. And black families could be forced to pee in a jar while travelling, because no hotels would give them a room.
Bravo. The Constitution limits the power of the federal government to protect the individual. Let this law slide and say goodbye to that. If I wanted to live in a liberal utopia, I would move to Greece, or Italy, or…. wait a minute, there IS no liberal utopia, never has been, never will be. Maybe come back with a 30 page bill that has torte reform and does not require every plan to be an all inclusive Cadillac plan. Better yet, fix Medicare, fix Social Security, then we can talk about adding another behemoth entitlement.
Crunchy Cajun
No. Better you should move to the Grand Duchy of Michigan. Carl Rove- Dictator. No one here was talking about a liberal utopia except you. Who can we trust to fix Medicare/ Social Security? You?
You are confused by right wing propaganda. A liberal utopia would be universal healthcare through single payer. Obamacare is still dealing with soley private insurance companies. The mandate was created by conservatives; they pushed for it in the 90′s and Romney implemented it in 2005 and even wrote an op ed about it in 2009. Its not a liberal idea. I'm still baffled at why it suddenly became "socialist" after Obama passed it. Have Republicans been socialist this entire time?
Cadillac? Have you been sucked in by Reagans fictional anecdotes?
But yeah, we do need reform, though we don't need the huge tax cuts the Republicans are pushing.
I'm not sure how this is an entitlement; you're paying for your own healthcare. Do I need to go over the definition of entitlement?
Question: When was the last time the Supreme Court overturned a major act of economic regulation?
Answer: Not in the last 80 years!
This is because the court has long recognized that the Congress is supposed to have the power to perform regulation of interstate commerce. The interstate commerce nature of health care is not in doubt, and was not argued in the oral arguments.
The question is whether the court should impose a novel theory one which has literally NEVER been used in any previous ruling, that says that the Congress can only regulate 'activity', but not 'inactivity'.
Turn now to the Heart of Atlanta case, where the owner of said hotel claimed that to Civil Rights Act of 1964, which required him to rent rooms to "negroes" literally violated the 13th amendment and enslave him.
In this case, as well as the one the court is considering with regard to the ACA, there was ample evidence that interstate commerce was involved. The REAL issue went beyond that to whether it someone violated one's rights to be forced to make some commercial transaction against your will.
As you may have heard, the gentleman lost his case. And he was forced to make commercial transactions (renting a room) against his will.
Justice Kennedy asked "will this not change the relationship between the government and the people." The answer is NO.
The court has already said that Congress may force one to enter into commercial transactions, as part of the Commerce Clause power.
Barrack Hussien Obama was NEVER a LAW PROFESSOR. He was a lectorer in law and its not even certian if it was constitutional law. A couple of tests show his shallow reading in that respect as well. Stop promoting the ingnorence and get the facts straight.
You spelled ignorance wrong.
Hello Joe,
That is, 'You spelled ignorance wrongly.'
Is it just me, or did nobody argue that since health insurance is NOT sold across state lines, the interstate commerce clause does not apply?
Since that is the case, even inaction cannot affect interstate commerce. The whole thing is a thinly veiled entree into socialism and we all know it.
You may be ignorant of the fact, but there are already many Congressional regulations of both health care and health insurance already. You might want to fold that into your understanding.
Health care is recognized as interstate in nature both because medical supplies and prescriptions cross state lines and because patients do too. Remember, a lot of hospitals are located near state lines, especially in the smaller states on the east coast, and their service area covers more than one state.
Health insurance is also recognized as interstate commerce, but more importantly in this case, Congress has a power called the 'necessary and proper' power, which basically says if Congress is regulating health care under its commerce clause power, then it can regulate health insurance, if such regulation is necessary to make the regulation of health care work.
As for 'regulating inaction' I bring this fact to your attention:
In the pivotal case Heart of Atlanta hotel v United States, the Congress and the Supreme Court required the racist owner of the Heart of Atlanta hotel to rent a room, that is to say, enter into a commercial transaction, against his will.
You don't know what socialism is. This is not it. This was based on a conservative plan from the 90′s (and even in the 2000′s) and it helps the insurance companies.
Doesn't the President nominate the Justices? Doesn't the Senate vote on them? I think that's a pretty decent way of check and balancing the Supreme Court. Had the Senate not "Borked" Bork, this would have been a no brainer, this would certainly be getting overturned.
This is a very informative and interesting article. The last part that indicates that there is some other method to provide "affordable care" or insurance to every citizen is unfortunate. Nothing will make care affordable, some things could make it use less resources.
Given your extraordinary certainty as to the outcome of this matter (which, frankly, makes the entire piece more than a bit suspect), I wonder how you would explain away Judge Silberman's majority opinion in the D.C. Circuit Court of Appeals? Does he too believe that we are all stupid as you allege the President believes? Has he suddenly forgotten the role of federalism per the Constitution? For you to make the arguments you make, you are essentially calling one of the most respected conservative judges in America -and very likely the next Supreme Court Justice should a Republican sit in the White House when the next vacancy occurs- an incompetent boob. While I would not pretend to know how this is going to shake out, I am certain of one thing – there is no certainty. Clearly, scholars of all political stripes have come to the conclusion the the law can and should withstand judicial scrutiny-while some certainly have seen it otherwise. But certainty? A dangerous game.
Frankly, I don't know how you can make this federalist argument in the face of Justice Scalia's opinion in Gonzales v. Raich. Now, I am not saying that Scalia will not distinguish away that case, but, again, your certainty is highly suspect given that case. Let's compare notes at the end of June and see how this turns out. Should the Court see this differently than you anticipate , I know I will be anxiously be awaiting your piece at that time.
Hello Rich,
Well, the President also seems to share in Mr. Ferrara's assertions of the outcome on this issue before the Supreme Court. That is why he made those absurd comments and criticisms about the Supreme Court and its powers. If it were all so uncertain, Obama would have shut his mouth. So I would think Mr. Ferrara has a pretty good reading of the situation.
Who is to say which comments are "absurd"? I find your ignorant comments here very clown like.
My last comment was directed to economart.
Inaction as regulated activity would be a profound change in regulatory scope for the central government. The court would be right to strike it down as improper and unconstitutional. Though that will indict Romney on the Mass. State plan which had an individual mandate too. Odd that it is ok for a state to initiate force for inaction but not ok for the central government to do so. Guess we should take note of our freedoms wherever we can.
There are plenty of examples in existing precident. Try Heart of Atlantic hotel v. United States.
@ Peter Ferrara – You put forth a solid argument about the problems that Obamacare faces. I had thought that this was one of the best policy articles I've seen so far and I learned a few things. I was starting to think that you were someone I might trust to give me unbiased information. I was impressed with how you started your final paragraph. Very Impressed. Then you closed with, "But that would still require a different President, because Obama's anti-market, left wing, ideology would not allow him to accept that desirable result."
I looked at your background and once I saw the Heartland connection I lost all faith in your analysis. For someone to put the effort into the research and thinking you did just to guarantee a lack of problem solving, to appease a narrow demographic, is not smart.
Aristotle taught us to use the 3 Methods of Persuasion (Ethos, Logos and Pathos) in balance with each other so as to provide the strongest rhetoric. Your logic and credibility are undermined by your overly emotional ending.
Your last paragraph started out as someone interested in our nation becoming a better place. Your final sentence is from someone trying to prevent solutions.
Mr. Easierpc,
The author did you a disservice, by totally failing to discuss those cases, like Heart of Atlanta Hotel v United States, where a person was forced, against his will, to enter into commercial transactions against his will.
Indeed, a careful analysis of foundational Wickard case will show that the farmer in this case was subject to commerce clause authority because of the economic effect of his negative actions (not buying grain from the market), not the positive actions (growing the grain and feeding his cattle).
The court decided that his actions could be regulated because of its effect on the price of wheat in the wheat market. But growing grain cannot directly affect the price of a commodity in the market. And feeding grain to one's own cattle cannot affect the price of grain in the market either. It was only the negative action, that of not buying grain from market that can have such effect.
By the logic of those who claim that Congress cannot "create commerce", the farmer in Wickard should have won. But, he lost.
The lawyers are not Obama's and it not Obamacare. You knew this but you still think that we are to believe you and what you call things. You need you butt whipped for talking about the President and then you do what you have done. This great country can at least make sure that all of its people gets preventive care otherwise we all end of paying for emergency high costs and you, you mr. should know this….
Dear Vice President Dick Cheney,
I hope you are well and recovering from your recent heart transplant. I personally know many organ recipients and they tell me the exhilaration and excitement of getting a second chance at life.
With your new life, I have to ask. Do you agree with this author and the Republican argument to strike down Universal Health Care in the United States? Your recent health care leading up to and including the heart transplant is easily $1Million. Although you are rich and could afford to pay that outright, I will bet your insurance covered all the costs. Though being rich and retired will help your future prognosis.
I use organ donation as an example, because I'm not partisan or arguing federal vs. states right, but examples are a way of testing the devils in the details.
Would you deny a heart, or other organs and tissue transplants to the poor, disabled, and uninsured? Most people on the organ waiting list are in dire need, and cannot live much longer without a gift from a donor. Recently a family member of mine died. I was faced with the decision to donate my beloved one's organs. And I did it.
I know several of my loved one's five organ recipients were on various state-subsidized insurance and disability programs, because they were unemployed. Only one was like you – older, well-to-do, and retired. I love my beloved one's organ recipients who are of all races, ages, and gender.
Most likely statistically is your heart donor is 40-50 years younger and not wealthy.
Consider your heart gift an act of mercy, so that you may live again. It's not an entitlement, and there's no ready organ supply except from tragedy. I know personally how recipients recognize this, as they move on to new jobs and find ways to benefit society. Consider it an investment by the state so these younger recipients can become productive members of our society.
As I watch the bitter debate, the side against Health Care sounds so greedy. Back to my example of organ and tissue donation, the whole system unravels. Although I tried to be an optimistic donor in the face of tragedy, I will never advocate for organ donation again, if organ recipients will be an elite group of rich people. If we intentionally deprive insurance from a significant segment of Americans, the ethics and insurance of an insured elite is a slippery slope. Crassly put, why should I agree to join a supply chain in a multi-billion dollar industry to deliver hearts to rich old men? Please don't let the future be owned by the greedy.
Vice President Cheney, if the conservative Supreme Court votes down the Health Care law, how will you use your position of leadership to advocate for equal opportunity for health, liberty, and the pursuit of happiness? With your gift, don't settle for organ transplants being a privilege of the rich. I call on you to lead the country to a fair and balanced solution.
Organ transplants are virtually impossible for those without health insurance.
The reason is that no transplant team in the nation would even think of using one of the precious few organs available on ANYONE who does not have a demonstrated long term ability to access anti-rejection drugs. AND THAT MEANS HEALTH INSURANCE!
Which means more organs for the deserving souls, like Dick Cheney! Did you ever doubt this is what drives Republican health care policy?
Why is health insurance for the individual not tax deductible? Would self-insurance with proper tax treatment not take care of the problem of access to 'anti-rejection drugs?'
Somehow, I think we need more than a 15% solution! And how in hell would self-insurance provide guaranteed access to anti-rejection drugs? Maybe you have $75,000 a year lying around to pay for such drugs, but that has got to describe a tiny minority of American.
What DOES make sense is that every American have health insurance, and pay the per-capita cost of health care in this country in premiums.
Judicial activism is when the courts create legislation instead of ruling on matters of law or on the validity of law (aka, the constitutionality of law).
Interestingly, Mr Ferrera fails to point out that the Constitution does NOT delegate the power of "ultimate arbiter" of what is or is not Constitutional to the Supreme Court. Chief Justice Marshall usurped that power in Marbury v. Madison. Although, it did so within the limited context of striking down legislation that gave power to the courts that the Constitution did not delegate. Therefore, it was only exercising the power of determining constitutionality of powers as exercised by the judiciary. A Jefferson quote on how it is the responsibility of all 3 branches and the States (as founders of the national government) to determine constitutionality would be very appropriate here!
Mr. Bailey,
There are both Republicans and Democrats who would agree with you. However the counter argument goes something like this:
Article 3, Section 2, Clause 2 says the following:
"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Appellate jurisdiction simply means that the Supreme Court has authority to handle all appeals to cases decided in lower courts. That is not controversial.
But when the constitution says that the Court has jurisdiction, both as to "law and fact" I take that as meaning that it is the job of the Supreme Court to decide what the law is, and instruct the lower courts how to interpret the law.
So, when the high court determines that a law is "unconstitutional", that is an instruction, to the lower courts, what the "correct" interpretation of the law, both acts of Congress and the Constitution are. The instruction is:
"The correct way to interpret this law is that it is unenforceable, in that it is in conflict with the highest law of the land, the Constitution."
Even in cases where a law is not being interpretted as unconstitutional, the Court will always have the job of reconciling one law with another when they appear to be in conflict, and sometimes saying that one law takes precedence and the other shall not have effect.
Nothing you've said here has anything to do with the issues before the court. If the court did, in fact, take up your very political issues, it would be guilty of the sort of judicial activism that our president incorrectly accused it of.
If you want to make a salient point against the writer, you should stick to his legal points. This case is about the power of the federal government under the constitution, which is a contract between the people and the federal government and the states.
All power not expressly given to the federal government through powers enumerated in the constitution are reserved to the states. The writer makes a case that requiring the purchase of insurance is actually a police power, which most recognize has being reserved to the states. If you cannot argue this point, don't argue at all. Your policy statements mean nothing to those justices actually concerned with the constitution.
Mr. Gladrocks,
It's hard to know who your comment is aimed at, but the author utterly failed to cover the relevant law.
The standard used in all modern commerce clause cases is whether one's behavior, when added to that of others, has substantial economic impact on interstate commerce.
In the important Wickard case, as well as the medical marijuana case, it was held that even persons who are not directly involved in interstate commerce are subject to commerce clause regulation.
Also of note, in the Heart of Atlanta case, the owner of this hotel claimed that being forced to enter into a commercial transaction, specifically renting a room to an African-American family, constituted involventary servitude, ie slavery, against himself as an individual.
The only difference between the claim that the hotel owner was subject to involuntary servitude and the current claim that the Congress is 'regulating inactivity' is that the words involuntary servitude actually appear in the Constitution. But the two concepts actually mean the same thing.
It is crystal clear that applying the standard of 'substantial impact on interstate commerce' is satisfied by the ACA. It is crystal clear that both health care and health insurance constitute interstate commerce. (There are several federal statutes regulating health insurance already.)
And it is crystal clear that the Congress CAN use its commerce clause regulatory authority to force someone to enter into a commercial transaction against their will. That is exactly what happened in the Heart of Atlanta case!
Given the fact that proponents of the law are asking the same 'substantial economic impact on interstate commerce' standard be applied to this law; and given that opponents are trying to push a refried version of the 'involuntary servitude' claim, overturning the ACA would indeed be a clear act if judicial activism.
The hotel owner can offer the standard of service one expects in a modern society, or he can close down his hotel and avoid having to enter into servitude.
I am afraid you totally missed the point. The hotel owner was required, by a law with commerce clause foundation, to enter into a commercial transaction against his will.
The claim that the baseless theory that Congress may not use its commerce clause authority to "regulate inactivity" is disproved by this precedent.
James, sorry but I wholeheartedly agree with economart. The hotel owner has the option of exiting the market. However, under ACA, we won't be able to "exit the market" without being slapped with a penalty. And I still feel that the racial discrimination aspect was the prevailing consideration (and rightly so) in this case.
Would you prefer that we send sick people to the knackers' yard?
Unlike you resentful leftists, "we" don't feel the need to interfere in others' business. The sick can go whereever they wish. It's a free country. But they do have to keep their hands out of the rest of our pockets. If they need help from others, they must ask, realizing that others may or may not be willing or able to help. In extreme cases, they may have to declare bankruptcy. It's not the end of the world.
Wendy- Given your strong feelings, might I suggest an act of Civil Disobedience? You should simply, as a matter of conscience, refuse to pay your taxes. Tell them that you are unwilling to pay at this time. I know Gandhi was a liberal, but if he felt as you do, he would have just sat down, and refused to pay.
Then so many of us across the country would so admire your courage, that we would follow your lead.
You leftists are despicable subhumans. No person of integrity would make excuses for a government law that enslaves people to others – and forcing people to pay so that others can be covered is enslavement, no matter how you try to evade that fact and rationalize it. If you were truly concerned about the welfare of others, you wouldn't treat them like sacrificial animals. The truth is that you do not care about your fellow human beings. You are vicious, envy-ridden little turds who desire to punish, harm, coerce, and level anyone who didn't let themselves go like you did. Your wrath is saved solely for those who become financially successful, not for the rotter who drinks himself into a stupor on the streets or the self-indulgent pig who practically eats himself into a diabetic coma on government checks.
But then reality and truth have never been your friend. Your worldview is nothing but lies. You can be described in two words: Moral rot. And the consequence of that is self-hatred. Maybe if you spent a little more time improving yourselves and less time indulging your seedy envy, you would become a better person, you would have more rational beliefs, and then you wouldn't hate yourself so. You also wouldn't have these suicidal ideological conflicts with 60% of the population.
Wendy– Just wondering. Are you a member of the religious right, or just the plain old right? You must really hate yourself, to be so hateful to others. You give the perfect example why folks like yourself will never be in charge for long.
And I would love to hear how you intend to deal with those "despicable subhumans" , that you, in you're Hitler-like way, have chosen to label? Prevent "THEM" from voting, or just kill them off?
You keep your hands in your own pockets. With a little luck, you may be the first one to figure out how to take it with you.
Or, you could move to Wisconsin. But better hurry,before the bleeding hearts take back the state.
Happy Holidays
Are you aware that another federal law which has been in force, and benefited workers since, the 1970′s ALREADY requires one group of persons to cover the cost of healthcare for another?
It is true. The law is called HIPAA, and here is an official description of part of the law:
"One of the most important protections under HIPAA is that it helps those with preexisting conditions get health coverage. In the past, some employers' group health plans limited, or even denied, coverage if a new employee had such a condition before enrolling in the plan. Under HIPAA, that is not allowed. If the plan generally provides coverage but denies benefits to you because you had a condition before your coverage began, then HIPAA applies."
In other words, no group insurance plan (the kind employers offer their employees) can descriminated against those with so called preexisting conditions.
So, you have healthy people and people who have gotten sick with cancer or heart disease, and they pay the same amount in premiums!
And thank the Lord that it is so. Someday, you may be the person who gets sick. Should we leave you to die without health insurance or the health care that health insurance buys? I should hope not. We are not barbarians.
Or suppose you should have a daughter and she is born with a heart defect. Should she be barred from getting insurance the rest if her life because of her 'preexisting condition'?
The solution to this is that we tell insurance companies that they must insure everyone, not just the 'best' clients. But, we don't want people cheating and waiting until they are in the ambulance before buying health insurance. And that is where the individual mandate comes in.
You see, I detect that you are very young and may not have thought about the implications of what you have said. The is still time to prove you have a heart and change your position.
Wendy, I hope you got a warrenty on both your anger managment classes and your psychiatric sessions. Neither of those seem to have done you any good.
Where is the moral purity when an insurance company takes your money and then denies to cover you when you get sick? Where is the moral purity in the USA, supposedly a Christian nation except when it has the chance to act like a Christian nation, when it allows 45,000 of its citizens to die for lack of health coverage? Your phoney and bogus outrage may make you feel better, but you're only fooling the tea heads, which is very easy to do.
you must be a law professor!
obviously, bari shabbazz obama II chose to opt out or your class.
the comments below by the NABOBS OF NEGATIVITY think the definition of FREEDOM means EVERYTHING FOR ME IS FREE; LET THE POSTERITY PAY FOR IT.
lots of illogical angry citizens in the good 'ol USA, the salt of the earth!
let's hope your interpretation is the scotus' prevailing one.
Federalism pros and cons are the same in a time with no auto's, planes, Internet, multinational companies and even insurance co's? Huh? Healthcare is a social concept, as one can catch a sickness from someone else. You can't catch broccoli from someone else! What the people that created this country said to me, in their writings, is how to think not what to think.
Peter- Well said. John Adams said: "Ideology is the science of idiots".
Goes directly to your point.
Peter Ferrara could have made his article shorter and more accurate by writing, "The Supreme Court will overturn Obamacare because Roberts, Scalia, Thomas, Alito and Kennedy are rubber stamps for the Republican Party. It pains them to vote against the party interests even if it means they take on the role of a jucicial activist."
Mr Ferrara: thanks so much for this thoughtful article. As a Layman i have 1 question that i have still not understood:
Under Section 8,although the powers are clearly defined the preamble seems to indicate that the Fed Govt has rights to create all laws/taxes that satify "common welfare of the nation". I am paraphrasing, but apparently in Helvering v Davis (1936) the justices held that under that reading, social security act was constitutional, including the soc sec tax imposed on non-recipients and employers. Surely the point there was that one was paying into a pool IN ANTICIPATION of accessing it in years to come (as a retiree). So why, isnt the health care bill constitutional both in concept and in individual mandate for the same reasons? Was that judgement over-turned?
Thanks Chitra
Social security tax is only imposed on people who are working/an activity. It's not imposed on someone who is just sitting there. Different.
Congresss does have authority to levy taxes.
Social Security is a tax.
Medicare in a tax.
Obamacare was not marketed as a tax. that was the debate day 1 of the hearing.
the 26 states, the plaintiffs presented the case that it is not a tax. if it was a tax, day 2 and day3 could not have happenned until a tax was levied on the taxpayers.
since day 2 and 3 hearings on the mandate and medicaid obligations by each state were heard, this decision will go forward as if it is NOT A TAX.
"Social security tax is only imposed on people who are working/an activity. It's not imposed on someone who is just sitting there. Different."
Ms Bradley,
On the other hand, the finding of Wickard meant that a Farmer who was not buying or selling wheat in interstate transactions still had to obey Congressionally created laws.
And the hotel owner in Heart of Atlanta was "just sitting there" and refusing to enter into a commercial transaction (a negative action) when he refused to rent rooms to African-American families. And the court said that Congress was properly using its commerce clause powers when they said he did have to rent rooms to African-American families.
The words "regulating inactivity" are not even in the Constitution. The owner of the Heart of Atlanta hotel at least cited a REAL AMENDMENT TO THE CONSTITUTION. Namely, the 13th amendment, banning slavery.
Good question. The argument of what is meant by the phrase general welfare is a famous one that goes back to when it was first written. There are good resources that explain the phrase from the Madisonian and the Hamiltonian perspective. Historically, the Supreme Court has held that the phrase refers to the taxing authority enumerated to Congress.
" The [individual mandate] is essential to creating effective health insurance markets"
A market is where buyers and sellers come together for transactions. If someone is forced or mandated, they're not a buyer or seller. What Obamacare is describing is not a market and certainly not an effective market. You have to have WILLING participant.
If someone is mandated to buy insurance, is that an enforceable contract? If either side doesn't live up to the contract, what's the remedy for enforcement or resolution?
"A market is where buyers and sellers come together for transactions."
Ms. Bradley,
Again, please review the Heart of Atlanta case. The hotel owner WAS forced to enter into commercial transactions against their will.
And no one should doubt, it is the job of Congress to regulate interstate commerce. To understand that health insurance and health insurance constitute interstate conmerce, you just ave to review the fact that there are already many Congresdional laws regulating both.
So tell me something, if so many people die in this country because of a lack of insurance, how many lives will be saved by passing this socialist piece of ligislation? Are the poor people going to be able to magically buy insurance all of a sudden? Or do we keep on footing the bill for them like we already are? If you need emergency care in this country, you get it. This is not a bill that put out there because obama cares so much about people, it's about money and control.
I could spend my time answering these questions, but the column was on the legal justification (or lack of one) and I find that the more interesting question right now.
And if you need emergency care for something non emergent and you lack health care coverage, you clog the ER. David Smith may not get the care he needs with a clogged ER. Good luck with that Dave. And good luck when your claims are denied just because you were sick.
It is frequently recognized that the ER is the most expensive possible way to deliver care. The doctors have no knowledge of their patient's history and so have a tendency to run every conceivable test. At the same time, that lack of knowledge means they may be operating in the dark, missing key information like drug allergies and diebetes.
Besides, by the patient shows up, sans routine physicals, with symptoms from cancer or diebetes, the disease has had been eating away at the person's organs for an extended time. It is perhaps the worst possible deal for the doctors, the patients and society.
preventative care does not save money.
@aaron henke
Perhaps some preventative care saves money and some does not. Few could deny that controlling blood pressure and diebetes saves cost, not to mention the human toll of people losing their sight and/or lobs to amputation.
Further, your statement is unresponsive to what I actually said: "It is frequently recognized that the ER is the most expensive possible way to deliver care."
It is my observation that right wingers are blind to the human toll of their policies, and sloppy thinkers at that. For example confusing a statement about the expense of emergency room care with a statement bout preventative care.
@James: The Heart of Atlanta case is a discrimination case: NOT A COMMERCE CLAUSE CASE. Let it go. The transaction of the renting the room is not germane to the legal argument. Additionally, the hotel operator had a choice: rent the room as legally required…or close up shop and enter another business. Obamacare offers no such choice.
@ardent guy
Sorry you have so little knowledge of the law. Congress has no authority to impose regulations on racial discrimination. Try to find the constitutional article and section, or amendment, because there is none.
No, the constitutional justification of the Civil Rights law of 1964 was entirely premised on the Commerce clause of the Constitution.
The hotel owner never even bothered to claim he wasn't engaged in interstate commerce, as he had ads running in other states trying to drum up business.
What he did claim was, despite the clear commerce clause jurisdiction, that a law requiring him to engage in commercial transactions with "negros" against his will would be slavery, in violation of the 13th amendment.
Well, he was forced to enter into commercial transactions against his will. The Supreme Court did rule that Congress could force someone to enter into a commercial transaction against his will.
And the opponents of the health reform law who claim that they cannot be forced into a commercial transaction against their will ALREADY HAVE THEIR ANSWER FROM THIS CASE FROM DECADES AGO.
"Well, he was forced to enter into commercial transactions against his will. The Supreme Court did rule that Congress could force someone to enter into a commercial transaction against his will."
@James: No sir! The hotel owner had the choice to close up the hotel and open a different business. The AHA offers no such choice.
"The hotel owner had the choice to close up the hotel and open a different business."
@ardent guy
You know that sort of argument gets you exactly zero credibility in the law. It is as if I said, "the individual mandate doesn't force anyone to get health insurance, since you could always avoid it by renouncing your citizenship and moving to Antarctica."
The theory of choice does come into this dispute, but not in the way you realize. Some choices are considered legitimate choices and some do not.
If Tony Soprano puts a gun to your head and says "You have a choice, pay me or I burn down your house with your children inside", that is not a legitimate choice. On the other hand, if your real estate agent says "You have a choice, both the California Ranch and the Bungalow are in your price race, that is a legitimate choice.
In the case of the health care law, "get insurance or move to Antartica" does not qualify as a legitimate choice, but "get insurance or pay a nominal fine, with the understanding that persons who pay the fine are not in violation of federal law" may very well be judged to be a legitimate choice.
There are other methods of obtaining affordable health care than by forcing people into mandates. The tax treatment for individuals could easily be changed to accommodate individuals paying their own way or self-insuring. That is one solution. The choice of this great scenario or that absurd sequitur exists only in your mind. Mr. Ferrara spoke of other solutions that would easily fall within the limits of the Constitution.
@ardent guy
There may indeed be other ways of probiving affordable health care other than an insurance mandate. (Note however, when it came to car insurance, most states have chooses at least a variation on the insurance mandate concept.)
Noteably, nothing I have said here even disputes this particular assertion. However, I have shown that the Congress can indeed use commerce clause authority to "regulate inactivity", that individuals — the hotel owner claimed he was being subject to slavery, which only applies to persons — can indeed be compelled to enter into commercial transactions against their will.
There is a difference between saying a policy is "unwise" — I happen to think the policy in the ACA is very wise — and saying it is unconstitutional. The later is a very, very, high bar. I have demonstrated that the ACA is indeed constitutional.
Would it be imprudent to suggest that the opponents are motivated by political, not legitimate legal objections?
@James: Who defines "legitimate choices"? For example, you equate starting another business with house burning, child killing, renouncing your citizenship and moving to Antarctica. Apparently your definition of "legitimate choices" does not include starting another business in this land of opportunity in order to preserve your core beliefs and principles. You define "starting another business" as an "illegitimate choice"…I do not.
Your assertion that the Heart of Atlanta Motel v. United States ruling was enforced on an individual is patently false. "Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), was a landmark United States Supreme Court case holding that the U.S. Congress could use the Constitution's Commerce Clause power to force PRIVATE BUSINESSES to abide by the Civil Rights Act of 1964." [wikipedia...emphasis added]
I am amused that you repeatedly build lengthy arguments on the flimsiest, preposterous notions that continually undermine your efforts. Somehow, you want us to believe that the enforcement of a Civil Rights law on an Atlanta motel is precedent to uphold the constitutionality of a Federal expansion of power that impacts everyone simply by being alive. But then again, you don't see the AHA as an expansion of power, do you.
@ardent guy
I did not do any of the things you just said. You are simply lying.
I gave some good examples of legitimate choices and non-legitimate choices. Are you some kind of freak that would say that the Tony Soprano case presented a legitimate choice?
If you, in your freak stupidity want to say that the hotel owner was not forced by law to enter into a commercial transaction against his will, then I suppose BY YOUR OWN STANDARDS then the health reform law DOES NOT REQUIRE ANYONE TO GET INSURANCE.
Therefore, you have nothing to complain about.
But DO NOT ever lie about what I have or have not said. Ever.
@James: Yes you gave good examples. The point was you seem to believe that starting a new business is a non-legitimate choice. I feel it is a legitimate choice. We will have to agree to disagree.
And finally, you are right that the hotel owner was eventually forced to enter into a commercial transaction against his will. The Heart of Atlanta case was a ruling against a corportation (the hotel) and not an individual (Moreton Rolleston). The Heart of Atlanta case was to enforce the Civil Rights law of 1964 on businesses….not individuals.
I never said that starting a new business is not a legitimate choice. That is the lie.
I said being forced to do so as the only way to escape an otherwise unconstitutional requirement — as you claim but which I dispute — would be not be a legitimate choice.
It is the "or else" that can make "do this or else" an illegitimate choice.
Has anyone seriously questioned the supposition that "everyone will enter the health care market eventually"? Many people die before entering the health care market. Every day people are killed in accidents, from stupid behavior (illegal drugs, riots, wars), by crime, natural causes, etc. Some people are genetically healthy and never need health care. My great grandmother lived to be 103 without health care. The argument that EVERYONE will end up needing health care is fundamentally flawed.
"Has anyone seriously questioned the supposition that 'everyone will enter the health care market eventually' "
@ardent guy
The people who live here fall into two categories, those who buy health insurance and those who do not. Both groups live in a reality where they may become seriously sick, beyond their ability to pay for it out of pocket, tomorrow.
That risk is not something that exists somewhere out there in the future. The risk is here, today, in the present. The insured understand this and they pay premiums to an insurance company, in the here and now, to take that risk. The insurance companies get the premiums, in the now, and the customer gets the coverage, in the now.
The uninsured know they have this risk in the now, the risk that they will have medical bills that they could not possibly pay, but they do not pay an insurance company to take that risk away.
The uninsured are assuming that, should the big medical bills come, that someone else will pay for them. Instead of paying for the risk, the uninsured make a decision, in the present, to let someone else pay.
That choice, multiplied over the 50 million uninsured, accounts for hundreds of billions of dollars going from the fiscally prudent, who buy insurance, cover the medical expenses of the uninsured.
It is in that sense that everyone, insured and uninsured, are involved in the health care market. Those who don't buy insurance are here alright, in that their choices increase the insurance premiums of those responsibile enough to buy insurance.
"Both groups live in a reality where they MAY become seriously sick"
@James: You make my point. People MAY become ill and enter the health care market. The left argues that everyone WILL eventually enter the health care market…a false premise.
"People MAY become ill and enter the health care market."
@Ardent guy
Actually, the point just sailed right over your head. The risk is in the PRESENT, as evidenced that people pay premiums in the PRESENT. And it is the choice that the uninsured make in the PRESENT that is responsible for those who purchase insurance in the PRESENT to pay an additional amount, calculated to be $1000 a year per insured person, to pay this additional amount in the PRESENT.
However males between the ages of 22 and 26 use on average less then 450$ of health related products per year. Where is the rest of my 650 dollars going?
There is always a risk. However, does the premium justify insuring against that risk? This decision is made every day. Many opt to insure against the risk. Others do not.
Healthy people may freely choose not to insure against a given health risk, say lung cancer. It doesn't mean they will not contract it. It just means that the cost of insuring for the small risk of contracting lung cancer is too great in their mind for the benefit.
What you are saying is that one must insure against the risk, because the risk is present.
And what many are saying to you is that many may wish to exercise the right to decide the matter for themselves, without a compulsion by Government. That many may decide to keep the expenditure on insurance to a minimum or to nil because they feel the risks do not justify the premium demanded.
"However males between the ages of 22 and 26 use on average less then 450$ of health related products per year. Where is the rest of my 650 dollars going?"
Mostly, it is covering the contingency that you may have a major heart attack, or multiple rounds of chemo.
Besides that, the ACA creates a system of regulation including a requirement that insurance companies cannot discriminate against you if you draw snake eyes and discover major illness, and you cannot cheat the system by buying health insurance on the way to the hospital.
This guarantee that you will not be treated as uninsurable for the rest of your life if a major, major, step forward in your personal security.
If you feel put out by this system when you are in your 20′s, you may want to take a longer view and realize that 100% of the old were young once. In other words, you are young now, but that will pass.
"Healthy people may freely choose not to insure against a given health risk, say lung cancer."
Those who choose not to insure themselves do so knowing that society has already made a decision that ANY PERSON even one who does not follow the prudent course of buying insurance, will receive medical care, on an emergency basis, when they present themselves at the Emergency Room.
The cost of "uncompensated care" cases add up to hundreds of billions of dollars in this country. This tremendous expense is added the bills of the patients who buy insurance.
And it is the uninsured who are responsible for this uncompensated care, the uninitiated who make the choice to let OTHER PEOPLE pick up the tab for their risk. Such people act as theives. And their is no moral principle that allows one to make a choice, knowing that this choice will reduce your risk-expense at the cost of making others bear the burden.
One person put it like this: Everyone in America already covered by a kind of insurance, the assurance that you will not be turned away from the Emergency Room. The difference is that some people pay for it and others let someone else pay.
And it is the uninsured who are responsible for this uncompensated care, the uninsured who make the choice to let OTHER PEOPLE pick up the tab for their risk. Such people act as thieves. And their is no moral principle that allows one to make a choice, knowing that this choice will reduce your risk-expense at the cost of making others bear the burden.
"Actually, the point just sailed right over your head. The risk is in the PRESENT, … [yadda yadda yadda]"
@James: No sir…the point sailed over YOUR head. The comment was the left's supposition that "everyone will enter the health care market eventually" is flawed. Let me make it clear for you:
1. Everyone needs air. (true)
2. Everyone needs food. (true)
3. Everyone will eventually need health care. (false)
The point was no one is questioning the supposition (#3 above). Your talking points are off topic. I was not discussing risks or premiums.
"However males between the ages of 22 and 26 use on average less then 450$ of health related products per year. Where is the rest of my 650 dollars going?"
"Mostly, it is covering the contingency that you may have a major heart attack, or multiple rounds of chemo."
@James: Wrong again, sir! The excess premiums are not placed in a lock box to cover your contingencies. The excess premiums are used to pay for the current "existing condition" patients. It's the healthy young paying for those who did not take care of themselves. It's a redistribution of funds. It's called Socialism.
There are better solutions than AHA.
Your choice in the not tobuy health insurance NOW is costing me money on my insurance premiums NOW.
You're type of ignorant, clueless stupidity is what I expect from a Republican.
James says "YOU ARE A PARTICIPANT IN HEALTH NOW"
No I am not. Furthermore, my choice to not buy heath care has nothing whatsoever to do with your premiums. Everyone needs to breathe. Everyone needs to eat. But the belief that everyone is or will be a participant in health care is false. Having been proven incorrect on his every point, James desperately resorts to insults.
Your choice in the present to not buy insurance are costing ME MONEY in higher premiums NOW.
And that choice, knowingly taking advantage of the fact that you will get emergency care when you walk into the local ER, has a PROFOUND EFFECT ON THE FINANCING OF THE HEALTH CARE OF ALL AMERICANS.
Ergo, you are a participant in the health care delivery system, as a thief, right now.
@ James: Calm down. Whatever medication you are on….it's not working for you.
No one (especially you) is paying for my risk. I can manage my own risk. I am self-insured. I have no need for health insurance right now in today's market. I may reassess my situation and purchase health insurance (not health care) in the future.
Now answer the question: Everyone needs to breathe. Everyone needs to eat. But the belief that everyone is or will be a participant in the health care system is false. Do you agree?
I am paying for a percentage of that hundred billion dollar "freeloader tax". You are the freeloader, the one who acts in knowledge of, and is depending on, the fact that you can get emergency room care.
The people who pay for all that compensated care, THAT WOULD BE ME, are the ones paying for that guarantee. The one you are banking on.
What a rant, this one really has Peter all riled up. Do voters really have any say these days? Everything has already been bought and paid for. Greed has won.
and you, peter are an evil piece of shit, go fuck yourself
This "story" is just another example of the arrogance, the sense of entitlement, the type of hubris which is typical of the insurance industry and their lackeys. This sentiment that somehow, I owe you something. We don't owe you shit, jackass. We don't owe you a living, we don't owe you a job and we sure as heck don't owe you any special privileges that you apparently enjoy day in and day out while I'm out busting my ass.
Unlike Mr. Ferrara and his pyramid hat wearing pals over at the Roger Ailes created Tea Party, I have become privy to information and insight that is available to anyone with a library card and a laptop. I'm sure I can cobble something together.
It's not that President Obama believes the average tax payer is stupid. It's really that YOU think we are stupid , Peter and in your arrogance, it's really insulting. Honestly, Peter, I think the real idiot is YOU..
Bottom line. For profit health care does not work. It is a fiction that "private enterprise" can do anything cheaper or better than non profit entities. That's because comptetition doesn't do anything but drive lying , cheating and corrupt behavior through the roof. Just look at the patent troll wars going on right now. It's the same behavior under a different name and it's a model that doesn't work. This for profit health care model is about as wise as giving all of your money to the neighborhood Mafioso for safe keeping. While I'm sure it will be very very safe, I am also sure that you will never see it again.
For profit insurance does not work because it's run from call centers, its ineffective and bureaucracy heavy, lugubrious, un responsive and run by workers that make minimum wage or little more thtan that. They may get a month or two of "training" , anything longer would not be "cost effective", throw in a day or two of medical terminology and suddenly the client or the doctor or office nurse is stranded on hold and when the phone is finally answered with someone with about the same training education and training than a telemarketer. This poor individual is now on the phone trying to explain to a physician, nurse or other evidence based practitioner and denying patients life sustaining care. This will start happeing to YOU , Petey my boy. The effect is maddening, I know you and your friends are looking forward to the profit frenzy.
For profit healthcare ensures that HMO's watch out for the bottom line as a priority over the good of the patient. ( which violates the Hippocratic oath).
Accordign to Dr. Donald Barr, writing in his book "Introduction to Health Policy" , he quotes a 1986 study (long before the real horrors of managed care debacles came into full swing). "The Institute of Medicine , which is a branch of the federal National Academy of Sciences (Gray, 1986), this report found that when compared to non profit hospitals, for profit hospitals tended to be less efficient in producing a given service or procedure. They charge somewhat more for comparable services. They provide less uncompensated care for the poor and the elderly." Because of the sovereignty granted to the AMA back in the 1930′s this is an OBLIGATION that has been abdicated, therefore the privilege should be withdrawn from the AMA.
Because for profit hospitals can raise(bilk investors out of) capital easier than non profit thru issuing stock only means that for profit hospitals are more likely to skim the patient populations (the practice of only treating patitents with good insurance and leaving the rest to the wolves) in theory, it has been said that "competition" would "weed out" less efficient systems of care, but in reality, those claimed outcomes by the bantering jackyls of the insurance lobby never seem to materialize.
The U.S is the only western nation without some kind of universal health care. In Canada, health care is considered a basic human right and the money that providers make is still very lucrative. This is a manifestation of their unique place in Canadian society.
In Canada ( and in other countries) everyone gets the same level of care regardless of their position in society and while sometimes the individual may have to wait, it's a much better ethical decision than some joker down at the insurance company telling the parents of a newborn with a congenital heart defect needing surgery " I'm sorry sir, the company won't pay for it, it's just not cost effective. " Well Peter, what if it's you and your kid who dies? You'll be singing a different tune, I promise. In this insanity that we call a health policy in the U.S. doctors are getting bonuses for not giving care. Why is this legal? It's a crime and should be illegal.
The U.S. spends more per capita on health care than any other country in the world, yet the "greatest nation in the world" somehow lamely limps up to the plate and fouls out ninth out of the list of ten western nations. According to Barr, and I am surprised that this would not be self evident that there is little relation between how much a nation spends on health care and the actual health of that society (2012).
Mr Ferrara states that president Obama has made a "laughingstock" of himself due to the president standing up to judicial activism that seems to have reared it's ugly head on the supreme courty. Funny thing though. Turn about is fair play, unless you're a republican, right? Mr. Fererra ,you are wrong. Dead wrong in the simplest way possible. This society and in every single state all drivers are required to have car insurance. They like to pretend it's different. They say "driving is a privilege. That's a lie. In this culture, it is required without a car, it's impossible to get a job, which everyone needs to survive. Why should anyone believe you, Peter Ferrara? In the case of health care, capitalism has been an abject failure. All the sources you quote in your piece are contaminated with bias of the worst kind. You quote the Wall Street Journal which has gone from being an actual newspaper to being yet another outlet of a fake news network, this fake news network sullies our nation with their toilet derived information daily and we are lessened as human beings for it.
You're supposed to be a scholar, yet you pull a kindergarten stunt like quoting those cheap jack hustlers as if they have factual information. We the people see thru you, sir. I just want to know, what makes YOU so important that you get to sit on some kind of kingly throne and engage in exact same demogaugery and hypocrisy that you decry from the loyal opposition.
As an American citizen and a taxpayer, I am sick and fucking tired of the constant corporate driven bullshit tap dance of dishonesty that is stock in trade for the benefit of your insurance lobby masters. Hell, Peter, when was the last time you did an honest days labor for an honest day's wage? Never? Yeah, I thought so. You've been sitting behind that desk for too many years manipulating the American public out of billions of dollars. Why be moral if it's not profitable, right? Just cloak yourself in Jesus and drape yourself in the American flag and sing that hypocrisy to the stars. You are a liar of the worst kind.
I'm here to tell you, the pissed off people are bigger that some paltry 99% There is a virtual Tsumani of people just like me who are getting good and sick of these stupid games being played with our lives perpetuated by the non producers and non workers, and I'm not talking about the fake news channel tea party tv party and I'm not talking about occupy anything. That's all smoke and mirrors cos one side needs the other to play off of.
Once again. Health care is a basic human right and the power of the insurance lobby in this country needs to be severely curtailed because they have a responsibility to produce something of meaningful value besides more broken promises to fix a broken system. This is a moral imperative to check the arrogance of power coming from the video smoke screen you folkslove so much. It's high time the government rescinded the AMA's sovereignty over the provision and financing of health care, they've already abdicated that responsibility so it' not that big of a stretch.
It's time to switch to a single payer system and it's time to end this circus once and for all. In the early 18th century, corporations were made to be dissolved and it's time to dissolve a few and in order to do that, for the good of the whole nation and not just the ten or fifteen that have them most money, it will be necessary for the government to wield monopsony over the financing of healthcare in America. In this way, there won't be "commerce" involved at all to worry about. Noone will be forced to "buy" anything. Whiney rich guy debate over. Period.
It is immoral to a grave degree to deny people care on the basis that they cannot afford it. This is one of the basic tenents of medicine. It is immoral to profit by producing nothing of value. This is called fraud and it is already illegal. All insurance companies engage in this state sanctioned fraud. A single payer system would put a stop to this. It is immoral to give a call center "insurance specialist" more authority than an duly trained , educated physician or practitioner in the decisions on the evidence based course of a patient illness. This system is sick and this system is wrong The for profit care model we are saddled with is obsolete and does not work for the taxpayers and citizens of this country. It's just a shame. Laws get passed and political parties throw hissy fits when it doesn't go their way. America is better than that. The law is the law – and this law as a moral imperative needs to stand – for all that is good and decent about America. It's far from perfect, but it's a step in the right direction. That direction is the future and the future belongs to single payer health care.
messy dick santorum-You are absolutely spot on. i hope that a wave of us that have had enough of the Carl Rove bullshit, will finally stand up for what is moral, decent, and ethical for a change. As i have said before, they would have us believe, and be condemned as Socialists, if we dare to criticise Capitalism. I'm no socialist, but I certainly know the difference between Capitalism, and a Free Market Economy. Hell, Capitalist are the ENEMY of a Free Market Economy. Thats just the way it is. And the Health Insurance Industry, is far from any sort of Free Market Ecomomy. At best, its a classic Oligopoly, and needs to be controlled as such. We do have laws relating to this subject, don't we?
At the least, it should be controlled like any other monopolistic utility. Didn't Blue Cross/Blue Shield used to be non- profit?
And that bull crap about auto insurance. Try and tell me that only drivers are protected by auto insurance? Nonsense. Kids crossing the street in front of their schools don't drive, do they? lord forbid they get hurt, even those without medical insurance get covered, right?
You know, I'm a member of the 1% club. How can I resign? This lack of conscience and morality make me sick. Free Markets mean just that. FREE MARKETS!!!
I dont think it is imperitive that it stands. Why is there a social duty to help those who cant help themselves? The law forces good, hardworking people to pay for the worst of society, those who add nothing. I dont want to pay for the smokers and fat people that choose to have bad habits. I dont want to pay for thse that dont contribute a damn thing to society.
Aaron- This is a circular argument. We are ALREADY paying!. And who gets to decide who is "Contributing to society" You? A panel of noteworthy scholars? The political party that happens to be in charge at the moment? Maybe by devine guidance?
I pay OVER $1800 per month for my retiree family medical plan , not counting co-pays and deductables. AND I'm in MEDICARE MYSELF! And its by no means a "Cadillac"plan.
Hell. I don't want to pay either! Lord know how much of my premium goes to pay for the uninsured, the total inefficiency of the Heath Insurance industry, and the fact that there is no CONCERN about the efficient operation of the industry. There is no COMPETITION HERE,so don't give me some bullshit about Capitalism. I just want the folks that I AM CURRENTLY PAYING FOR TO PONY UP JUST A BIT!!!! And if you think I am some kind of one off case, wait til November! And Peter, if you even bother to read these, you can shove your lying, elitist,double talking, column, right up where the sun doesn't shine. If Forbes stops short, you might end up his behind instead.
The author did you a disservice by failing to include anything about the Heartnof Atlanta case where an individual was forced to enter into a commercial transaction (renting a room to a black famility) against his will.
Also, the author failed to properly analyze the foundational Wickard case, where it was the farmer's negative action (not buying grain from the market), and NOT his positive actions (growing grain and feeding it to his cattle) which made him subject to Congressional commerce clause authority.
In other words, the author's purpose was to make you feel good about a position you may have already had, and lacked any serious analysis of the relevant law or precedents!
"The author did you a disservice by failing to include anything about the Heart of Atlanta case where an individual was forced to enter into a commercial transaction (renting a room to a black family) against his will."
Your assertion that the Heart of Atlanta Motel v. United States ruling was enforced on an individual is patently false. "Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964), was a landmark United States Supreme Court case holding that the U.S. Congress could use the Constitution's Commerce Clause power to force PRIVATE BUSINESSES to abide by the Civil Rights Act of 1964." [wikipedia...emphasis added]
The gentleman's legal claims were as an individual, regardless of the wisdom of Wikipedia. Of course, anything that affects the rights of individuals who happen to own a business necessarily affects the government's ability to regulate businesses.
James: Your last six (6) words are correct: "…the government's ability to regulate businesses."
The gentlemen's legal claim as an individual (i.e. slavery) placed within the suit were summarily dismissed as specious. The Heart of Atlanta case was about the government's ability to regulate businesses and is so stated in case law reviews and, yes, even Wikipedia.
You have it backwards: Anything that affects the regulation of businesses necessarily affects the individuals who happen to own a business.
If your claims are to be take seriously, then the gentleman was being subject to involuntary servitude.
But now you admit that the claims that the gentleman made, that being forced to enter into these commercial transactions against his will constitute slavery are specious. JUST AS THE CLAIMS THAT YOU BEING FORCED INTO A COMMERCIAL TRANSACTION VIOLATE YOUR RIGHTS AS AN INDIVIDUAL ARE SPECIOUS.
@James: You are off point again. Please stick with the questions at hand. There are two (2) questions below.
Concerning the specious claim, I should have been clearer. The specious claim was not concerning hotel transactions. The specious claim was the involuntary servitude claim (13th Amendment). You have pointed out that the case was argued from the perspective of the rights of an individual. This is true but only for the "slavery" part of the case. "I am being forced into servitude in violation of my individual rights under the 13th Amendment." It was a bad argument and was thrown out.
The rest of the Heart of Atlanta case was concerning business transactions and the right of the Congress to regulate businesses under the Commerce Clause.
The case against AHA (in my opinion) is a Constitutional issue about the unprecedented limitless expansion of congressional power. And yes, being forced into a commercial transaction for no other reason than being alive violates individual rights. Question 1: Do you see AHA as an expansion of congressional power?
The facts: The Hearts of Atlanta ruling (ruling….not the case arguments) was to regulate businesses….not individuals. AHA attempts to regulate individuals. Heart of Atlanta is not a precedent to support AHA. Question 2: Do you agree?
It is nonsensical to try to separate the *legal claims* made by an appellant and a ruling made against said appellant, since the court is implicitly rejecting those claims.
You are of course wrong when you say only the 13th amendment claim was made as an individual. There is absolutely no rational for distinguishing between this claim and the other claim made in the case, which was that being forced to rent a room against your will was also violation of the individual's rights under the 5th amendment, or takings, clause.
There was no commerce clause claim before the court, as it was established in trial that not only had the hotel (owner) advertised in other states but also a signficant part of his clientele were out of state travelers.
1. The ACA ("Affordable Care Act") does not extend federal powers, as the "substantial effect" doctrine has been the basis for all modern commerce clause law.
You should understand that you don't even have to be engaged in interstate commerce to have substantial effect in interstate commerce. Certainly the farmer in the Wickard case and the person growing medicinal marijuana in Raich were not, as they weren't buying or selling to anyone.
Now, you have to ask yourself, can I possibly have substantial effect on interstate commerce by choosing to not buy insurance? You bet you bib you can!
The responsible adults, the ones who buy health insurance are paying hundreds of billions of dollars in a sort of freerider tax, as a result of the decision of irresponsible adults who make a decision not to buy insurance knowing that, AND COUNTING ON, the fact that someone else will pick up the bill.
2. I've established, positively, that the Heart of Atlanta case is where the federal government forced an individual — the one who claimed a violation of his 13th amendment and 5th amendment rights — to engage in a commercial transaction against his will.
Any more questions?
Now you don't know me from Adam, but here is some of what conservative uber respected Judge Lawrance Silberman said:
"Appellants' view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause. The shift to the "substantial effects" doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce. See Lopez, 514 U.S. at 555-56. That accepted assumption undermines appellants' argument; its very premise is that the magnitude of any one individual's actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. Indeed, in case after case, a version of appellants' argument–that Congress's power to regulate national economic problems, even those resulting from the aggregated effects of intrastate activity, only extends to particular individuals if they have also affirmatively engaged in interstate commerce–has been rejected on that basis. See United States v. Wrightwood Dairy Co., 315 U.S. 110, 121 (1942) (surveying cases). Whether any "particular person . . . is, or is not, also engaged in interstate commerce," the Supreme Court expressly held, is a mere "fortuitous circumstance" that has no bearing on Congress's power to regulate an injury to interstate commerce. Id."
That sound you hear is that of your case melting. "I'M MEELLTTINGG!" exclaimed the Wicked Witch of the West.
Once and for all America is NOT worse on infant mortality than Cuba or most countries. The mis-information is due to the fact that the US included premature births and the other countries do not.
We have excelled in preemies survival rates. Other countries have not. Just want to clear up that subject.
Just a few facts:
We all know(ad nauseum) that the US spends twice as much on healthcare as any other industrialized nation, but what I didn't know, was that 20% of the population accounts for 80% of the total dollars spent. And further (This one blew me away) 5% of the population spends 49% of all healthcare dollars. The problem literally BEGS for an insurance solution, with maximum, if not total participation.
How many of you realize that in the Obamacare bill in March 2013 every citizen is mandated to have a bio-chip inserted that can track you and your bank account…Farmers use this policy when they tag their livestock…
And if you actually believe that this is true, you should also fashion an aluminum foil cap so that the Government can't read your mind, and plot against you.
Morpheus: Unfortunately, no one can be told what the Matrix is. You have to see it for yourself
I hear that the aluminum hat only works optimally if used in conjunction with a big ball of aluminum foil, held in one's inside the mouth.
Peter, Spectacular article! Thank you! I hope you are correct. The arrogance of this administration is frightening. A couple of other important points that should terrify anyone who can fog a mirror:
1. Our elected representatives did not even bother to read this 2700 page pile of garbage before they crammed it down our throats. At least Hilary Clinton had the dignity in 1994 of bringing in experts (though socialists) to assist her and to vet her ideas before airing them to the public.
This FACT alone should be reason enough to toss out anyone and everyone who voted for this socialist juggernaut – and the disaster President that forced it. Please read and understand legislation before you vote on it!
2. The government created the problem to begin with. When the feds stepped in an crammed DRG pricing (and similar) down the throats of providers, the providers simply shifted the cuts to the private sector (corporate America and private insurers) in the form of higher prices. Roll the clock ahead a few years and the government now says that the private sector can't control costs. Duh!
Get the government out of health care. All of it.
3. The difference between Health Care and Health Insurance is fundamental and obscenely obvious. It is the same difference between house and a mortgage. Yet, for whatever reason our illiterate legislators (and media) completely missed the distinction and used the two terms interchangeably. I was greatly relieved that the Supreme Court zeroed in on the important difference and stopped the nonsense.
We need legislators (President, Senate, Congress) to act like the Supreme Court, and get all the facts before they make a generation changing decision.
I am grateful to live in a Country that believes in separation of powers. Obama may be smart, but he is dead wrong to mess with the American spirit. We can't let him or anyone get away with this assault on our constitution.
Thanks again Peter!
Thanks, Rush. We can always count on you to provide the rest of us ignorant bastards a way to the shining light, with your insightful, and inspiring thoughts. Keep up the labeling and name calling. It's working!!! Folks are starting to finally realize that it might be REALLY possible to deny the vote to those REALLY (Not me) ignorant bastards, that are obviously not capable of thinking for themselves! And those upitty women? Well, nuff said. (Wink, wink)
America better hope that Obamacare gets thrown out by the supreme court. It's the single most hideous piece of legislation ever passed by congress and it will sink America if it's allowed to stand. The legislation had NOTHING to do with providing low cost or high quality healthcare to ANYBODY. It had everything to do with making people dependent on the government. Democrats use dependent people to their full advantage. Democrats LOVE herding people into the cage of dependency. We Republicans keep freeing people and the democrats keep calling us evil for setting people free. After all, the food is INSIDE the cage and the food that's outside is being collected and removed by democrats as fast as they can. Obamacare is a cruel trick and it's time the supreme court did the right thing and strike it ALL down, ASAP.
Same old negative talking point nonsense. Name calling, fingerpointing, when logic fails. Mr Forbes, behold your constituency. You must be bursting with pride. How many Commies in Congress? Lost count.
Obama has no repect for the US Constitution.
And so, he has no respect for the entire premise of America.
He should be impeached, packed in a crate and sent to the next IMF conference…along w/ the Federal Reserve Bank.
On the crate, the label should read "RETURN TO SENDER"!!!
Then attempt to find a real candidate….none of what the GOP offers is an improvement…all puppets. All enemies to the majority of Americans!
OK. Let me know if I got this right. (I mean, correct).
Everybody sucks except you, and the people that agree with you. And as soon as anyone stops agreeing with you, they suck too? Did I get it right? (Damn. I mean CORRECT)
This is awesome. Well written sir!
Peter, I believe you are correct. After listening to the orals, reading some of the transcripts and looking at the act itself it seems that Congress is trying to use improper authority, having no boundaries, to fund ACA.
Theoretically, Congress could have used its constitutionally sound taxing authority. Realistically, the Democrats, as you point out, barely had enough votes for passage as is. The Dems coud not muster the votes in thier own party for Public Option, much less single payer.
The congressional researchers advised them that they were on shaky constitutional grounds, but decided to roll the dice. After all, if ACA was struck down, they could bleat "activist court" steals healthcare from 40m Americans just like they stole the election from Gore.
I am certain this is the most accurate, concise article I have ever read as to why Obamacare is not only un-constitutional…but will surely be struck down in it's entirety. Hats off to Forbes and the obviously brilliant Mr. Peter Ferrara
Prayers are appropriate. Please, please, Supremes, kill that beast before it gets the kids.
Why the Supreme Court WILL Strike Down All of Obamacare"
Oh well cant call them all Correct ? ;-)
"Barack Obama made a national laughingstock out of himself with his recent comments on the Obamacare law now before the Supreme Court. "
He who laughs last.