I will not support any Dem who votes for this bill

The Volokh conspiracy has had a solid debate on the constitutionality of the individual mandate. The more one looks at this, the more seemingly unconstitutional it is. Health care has been the most important Democratic issue for a very long time- if  dems screw this issue we deserve to lose. The regressive effect on a corporalist approach simply is antiethical for dem values (see Digby & Glenwald)- in fact I don't care as much on other issues. Yes, no bill may be hurtful but a bad bill would be self destructive. Kos is correct, we are falling for a GOP trap; GOP will change the bill and we will have nothing to show except minority status forever, (Congress has rescinded healthcare changes before-recall the Medicare reforms.  For the good of the party and the country, progressives should vote against this disaster.

Tags: Healthcare (all tags)



Re: I will not support any Dem

" The Volokh conspiracy has had a solid debate on the constitutionality of the individual mandate "

OMG, what is with it with these RW sites...The individual mandate has a already been in place in MA for 4 years. There is no conspiracy...

by vecky 2009-12-17 10:42AM | 0 recs
Re: I will not support any Dem

And school segregation was in place for 64 years before Brown v Board Of Education.  Also doesn't Mass. offer something akin to a PO? (that makes a difference). I spoke to a well regarded state level appellate judge and he said that the unconstitutionality of the individual mandate is not even close. It is as if you were ordered to write a check to Boeing for defense.  

by RAULC 2009-12-17 11:21AM | 0 recs
Re: I will not support any Dem

No, Mass has no PO. They have an insurance exchange that provides a choice of private-plans. And no, these plans aren't non-profit either.

Now some states do have a PO - I think Maine has one and so does Washington. But those are subsidized programs with extremely limited enrollment.

I think you many you need to read the bill before you start spouting off on the mandate. It's really well crafted and not draconian.

by vecky 2009-12-17 02:59PM | 0 recs
Re: I will not support any Dem
Let me cut to the grain- in Virginia fours years ago- Gov. Kaine passed abuser driver traffic fines for the purpose of revenue enhancement. The net effect was a tax increase on those least able to afford it(you can imagine the demographics). It was horribly regressive and very unpopular. The fines were rescinded but not the feeling that dems are willing to stick it to the little guy to achieve most important policy goals (in this case: money for roads). What does that have to with health care reform? We are doing the same thing- welfaring the least fortunate and sticking with mandatory fees those a little more fortunate. Sorry, this is not my idea of progressivity.  Essentially we are raising "private taxes" (which are probably unconstituonal) on those least fortunate... and many of us who work for corporations, government or similar institutions with full subsidized insurance seem surprise they don't like it?
Do you think a family of four with a salary of 60K can afford private insurance? And since they can't, we are going to remove another 3K from their income? I can see the pontificators saying maybe those people should not have a family- perhaps we should outlaw sex? No, this bill is essentially sticking to hard working Americans that cannot get affordable insurance and represents everything I don't believe in on what I though was the most important democratic party issue. Obama will not lose my vote over this (he could have if he had selected Kaine) but my congressman will and I will give hundreds of dollars to his opponent (thought I probably would abstain in the election).        
by RAULC 2009-12-17 04:32PM | 0 recs
Re: I will not support any Dem

"Do you think a family of four with a salary of 60K can afford private insurance?"

A family of 4 making $60K cannot afford health insurance, but they will be under this bill.

I know because I know a family of 4 who make 70K and they pay 17K for health insurance. Under this bill their premiums will be capped at $6800. They'll save 10K a year. Their premiums will never go higher than 10% of income unless they make it rich. That's real help. That's real security.

by vecky 2009-12-17 09:29PM | 0 recs
Re: I will not support any Dem

Where does it say that?

by RAULC 2009-12-18 02:16AM | 0 recs
Re: I will not support any Dem

It's in the subsidies and affordability sections of the bill... has been online since Nov 19th now....

by vecky 2009-12-18 09:51AM | 0 recs
Re: I will not support any Dem

Is that the House bill? I did not find that section in the Senate Bill- I did see that the subsidy threshold allowed is $11,900 but reduced proportionally up to those making 400% of poverty whatever that may be. I did not see a hard cap.

by RAULC 2009-12-18 11:20AM | 0 recs
Re: I will not support any Dem

No, it's the senate bill. The House bill is similar, slightly more generous for those on the lower end of the spectrum, slightly less for those on the upper end. So I am hopefully the subsidies can be made better in conference.

Here is a nice chart showing the subsidies and caps, and the differences between the House & Senate (and SFC) bills:


by vecky 2009-12-18 02:14PM | 0 recs
Re: I will not support any Dem

Thanks for the link-I will something later.

by RAULC 2009-12-18 09:15PM | 0 recs
Re: I will not support any Dem

I'm really surprised by that judge's comments.  Even at the Volokh Conspiracy they admit that it's very, very unlikely the federal courts would strike down this mandate.  And frankly, when the people arguing that it's unconstitutional are the same people who think every Commerce Clause decision since Wickard v. Filburn has been wrong, it's kinda hard to see them as representing the mainstream of constitutional thought.

But set aside the people who think Lochner was a great day for the judiciary.  I honestly don't know where we found so many self-proclaimed liberals who think that it's an un-American outrage for the government to force people to do something.  It's a new strain of liberalism, that's for sure.

by Steve M 2009-12-18 07:51AM | 0 recs
Re: I will not support any Dem

The key reason is because it represents a new power not stated in the Constitution and goes against any classical model of governance (see decision on line item veto). I think the more commentators saw the issue in Volokh the more they saw the problem.  To be sure this has nothing to do with the commerce clause and everything to do with taxation. Sadly, the commerce clause has been viewed as a catch-all constitutional provision but recent Supreme Courts have dramatically trimmed its sails (see gun/school regulation).  

by RAULC 2009-12-18 08:12AM | 0 recs
Re: I will not support any Dem

What represents a new power?  The power to tax people who don't have insurance?

I think, and I say this respectfully, that if you believe the Supreme Court has "drastically trimmed" the scope of Commerce Clause jurisprudence then I don't think you follow constitutional law issues very closely.  Yes, there were people who thought the decisions in Lopez and Morrison heralded the start of a "federalism revolution," but after Raich no one believes that any more.

I certainly wouldn't judge anything by the reaction of Volokh commenters, some of whom are extreme libertarians who would just as soon take us back to 1791.

by Steve M 2009-12-18 08:21AM | 0 recs
Re: I will not support any Dem

I cannot agree with all of your constitutional analysis.  The line item veto was ruled unconstitutional on separation of powers grounds, not because of the reasons you state.  The court found that congress had abdicated its constitutional responsibility.  You are correct that the commerce clause has been broadly construed (see Wickard) until the Lopez decision.  I would expect the conservative members of the court are hostile to the commerce clause, but I think they would accept that health insurance does have an impact on interstate commerce.

by orestes 2009-12-18 08:24AM | 0 recs
Re: I will not support any Dem

Ok "drastically" was hyperbolic- but while Lopez represented a separation of powers it did also represent something unseen in the Constitution.  Frankly, whether I buy insurance, that is the decision to buy insurance or not, does not affect commerce. If I don't buy insurance I am not engaging in interstate commerce. The "penalty" provision is flawed because it is discriminatory: treating people with the same income differently. I am not a constitutional scholar and I know that one can argue different results under the law and all these arguments can be further refined. Yes, Volokoh is loaded with know nothing libertarians but that has nothing to do with the arguments advanced. Since I do not think insurance reform (that should be the name of the bill) will survive in its current form we will not see what the Supremes have to say about this; in the end one really does not know. One thing is for sure, it behooves those involved to place a severability clause in the legislation.  

by RAULC 2009-12-18 08:43AM | 0 recs
Re: I will not support any Dem

Under the commerce clause, the analysis is whether the activity being regulated affects interstate commerce.  It does not have to involve engaging in interstate commerce.  One of the seminal case is Wickard v. Filburn in which a farmer grew wheat on his farm for personal use in contravention of a federal law which proscribed the production of wheat.  Clearly Filburn was not engaged in interstate commerce.  However, the court ruled that his activity had an effect on interstate commerce because, of course, he would have had to have purchased the wheat he used.  

by orestes 2009-12-18 08:55AM | 0 recs
Re: I will not support any Dem

It still required an overt activity, not inert.

by RAULC 2009-12-18 08:57AM | 0 recs
Re: I will not support any Dem

There's a lot of arguments in there that are just made up out of nothing.  It's discriminatory to treat people with the same income differently?  Really?  So the mortgage deduction is unconstitutional because it privileges owners over renters?

by Steve M 2009-12-18 09:08AM | 0 recs
Re: I will not support any Dem

I am not going to delve how each is situation is different- but they are (nobody is making anyone buy a house)- enough said that this is what the court would look at and I might add, where the folks at Volokh have presented a persuasive case.

by RAULC 2009-12-18 09:38AM | 0 recs
Re: I will not support any Dem

No one is making anyone buy a house, but you're taxed differently depending on whether you buy one or not.  Exact same thing with health insurance.

by Steve M 2009-12-19 12:46PM | 0 recs
Re: I will not support any Dem

There is a constitutional difference between state action and federal action under the constitution.  Thus, what is okay for MA may not be okay for the federal govt.

by orestes 2009-12-18 07:38AM | 0 recs
Re: Which Amendment

Edcucate me, RAUL. Where in the Constitution does it require that a hospital treat a voluntarily uninsured deadbet freeloading unhelmeted biker who, while drunk and high (and fleeing the scene of the crime where he raped the adopted baby of a disabled lesbian couple from Massachusetts)  crashs into a group of elderly volunteers crossing the street at a legal crosswalk (with the light in their favor) who were on their way to a Hillary Clinton rally in Florida?

HUH? Can you answer that one?

by QTG 2009-12-17 12:07PM | 0 recs
Re: Which Amendment

In fact, hospitals are not required to provide emergency health care. However, by law, if hospitals accept federal funds then they do have to offer the mentioned services. It is a voluntary acquiescence. I do like your hypothetical- you should be a law school professor.

by RAULC 2009-12-17 12:19PM | 0 recs
Re: Which Amendment

Good. People call it a mandate, but it's really voluntary. Just like the Federal Income Tax.

Problem solved.

by QTG 2009-12-17 12:25PM | 0 recs
Re: Which Amendment

Income tax is voluntarily. Only if you make X amount of money do you happen to pay it. ;)

by vecky 2009-12-17 03:01PM | 0 recs
Re: Which Amendment

 It used to be X amount of money, but the regulations have changed. Try to keep up, vecky. You're getting lazier every day.

by QTG 2009-12-18 12:36AM | 0 recs

Just what, precisely, would not meet your level of "class?"

by TexasDarling 2009-12-17 04:48PM | 0 recs
Re: I will not support any Dem

The mandate is very constitutional.  It is nothing more than a tax.  If one says that this tax is unconstitutional, there are thousands more that would be also.

by LordMike 2009-12-17 05:15PM | 0 recs
Re: I will not support any Dem

Actually it is not definitionally a tax (visit dailyhowler.com) which is precisely the problem.  

by RAULC 2009-12-17 05:19PM | 0 recs
Re: I will not support any Dem

It is a tax... or rather it's a tax deduction. Which you don't get if you can afford Health insurance but choose not to have it.

by vecky 2009-12-17 09:31PM | 0 recs
Re: I will not support any Dem

 See, when you try you can really stick it. That response gets 10's across the board!

by QTG 2009-12-18 12:38AM | 0 recs
Re: I will not support any Dem

The constitutional issue is whether compelling people to buy health insurance falls within the enumerated powers of congress.  Surely, they can impose the penalty, that is taxation.  But one could argue the health insurance component cannot be enacted through the taxation clause.  I assume the commerce clause would be the basis.

by orestes 2009-12-18 07:43AM | 0 recs
Re: I will not support any Dem

Then half the revenue code would be unconstitutional... There are tons of tax penalties/credits that apply to personal or business actions.

Heck, you get a tax penalty for being self-employed (self employment tax)...

The argument against constitutionality is weak, at best.  

by LordMike 2009-12-18 09:41AM | 0 recs
Re: the Constitution

The mandate is absolutely Constitutional.

I don't support it, but that's certainly not the reason. The government can tax behavior or the absence of acting some way, which is what this is doing. There is not a serious question about it.

I'm getting sick of people declaring anything they don't like "unconstitutional". We've been seeing a lot of that lately, it seems.

by jeopardy 2009-12-18 07:14AM | 0 recs
Re: the Constitution

I will step into this discussion gingerly.  I think the constitutionality of the mandate would hinge on whether it is in fact a tax.  if the funds do not go to the government (which will be the case), an argument can be made that this is not a tax.  Frankly, I just assumed the power would derive from the commerce clause.  I think that is a more convincing argument (given the jurisprudence in this area) than using the taxation clause.

by orestes 2009-12-18 07:37AM | 0 recs
Re: the Constitution

But the funds do go to the government.  If you don't have insurance, you have to pay extra money to the government.  I don't think this is in dispute.

by Steve M 2009-12-18 07:53AM | 0 recs
Re: the Constitution

 Has any Senator argued that the "mandate" is unconstitutional? I think that the subject usually comes up in debate if there's an obvious question.

by QTG 2009-12-18 08:02AM | 0 recs
Re: the Constitution

Sure, I believe Orrin Hatch has gone on about it at great length, and probably others.

by Steve M 2009-12-18 08:09AM | 0 recs
Re: the Constitution

Boy, I haven't dealt with the taxation clause since the bar exam, so I'm in no position to opine.  I was drawing a distinction between the funds mandated to go to the insurance companies and those paid as a fine (tax) to the government.  I seem to recall there are arguments that can be made (bill of attainder?).  Regardless, I think the bill passes muster under commerce clause analysis, unless this court would pull back on the scope of the commerce clause.  We know the federalists [sic] hate the commerce clause cases.  As an aside, I've always thought Wickard v. Filburn went too far.  But then again it did lead to the civil rights cases.

by orestes 2009-12-18 08:13AM | 0 recs
Re: the Constitution

the can regulate, penalize, tax, or whatever you want to call it.

And yes, of course this falls under the Commerce Clause big time (as well as other area, like taxing if they make it a tax)

by jeopardy 2009-12-18 07:56AM | 0 recs


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