Challenging the Health Care Bill's Constitutionality

[I_luv_saber]

(Another Health Care Bill thread, but since the subject was a little different I decided on a new thread.)

What do you think about the attempt at challenging the constitutionality of the bill? What, if any, merits are there to the challenges being made? Do you think the attempts will be at all successful? Will people see the Republicans as obstructionist because of this? Thoughts?

http://abcnews.go.com/GMA/HealthCare...ry?id=10176898

[fencerchica]

Well, as I understand it, the constitutionality challenge to hr3590 is based on a reading of the 10th amendment. Challengers claim that healthcare regulation is a state right rather than a federal right.

Now, I know that most movement conservatives would like to see the FDA abolished, in their worship of a totally deregulated free market (i.e. a plutocratic anarchy). But seriously, if the FDA has the right to regulate drugs and medical devices on a federal basis (and it has to, because to do it state-by-state is clearly unworkable) why is it a stretch to say health insurance should be regulated from the federal level?

Furthermore, from a practical viewpoint, if one state were to enact healthcare coverage reforms while its neighbors didn't, insurance would be cheaper out of state, so healthy people would have an incentive to migrate across state lines (or buy coverage across state lines, if legal to do so), which in turn would make insurance more expensive in-state because you would have a smaller pool of subscribers with a higher proportion of sicker subscribers.

The fact that insurance works by pooling risk and distributing expense is the reason why a piecemeal solution such as doing it state by state is a difficult approach.

[dcmdale]

Just my initial reaction without thinking too much about it....

As I understand the suit, the claim is that the healthcare bill exceeds the enumerated powers granted to Congress under the Constitution particularly around the state-based insurance auctions. Were I the Solicitor General defending this legislation, my first thought would be that it falls under the Commerce clause--both because that is the clause of last resort for anything that Congress wants to do and because it actually is defensible on its face in this case.

Obviously, I would want to hear arguments, but I suspect that at the District Court/Court of Appeals level, it will be upheld to the degree that they are bound by existing precedent. I think that there are Justices at the Supreme Court level that might be interested in reducing the scope of the Commerce Clause, but this doesn't appear to me to be the ideal case for that. My 30-second take is that the legislation is upheld by about 7-2, but that some of the concurring opinions suggest new tests for determining whether something is covered by the Commerce Clause.

[Gav]

(Another Health Care Bill thread, but since the subject was a little different I decided on a new thread.)

What do you think about the attempt at challenging the constitutionality of the bill? What, if any, merits are there to the challenges being made? Do you think the attempts will be at all successful? Will people see the Republicans as obstructionist because of this? Thoughts?

Didn't the republicans use the same method to push through some of their bills?

Really, this is quite ridiculous.

[MyrddinsPrecint]

Does Congress have the authority to mandate we buy healthcare? Well, they're not eeeeexactly mandating it, they're just taxing us if we don't. Which is a meaningful difference, but how meaningful is up for grabs.

A useful read is this bit about the Commerce Clause-- http://en.wikipedia.org/wiki/Commerce_Clause -- Which is to say that Interstate Commerce is almost anything that Congress/the Supreme Court wants it to be, including someone growing something for their own use (wheat, pot). Only we've semi-recently learned that carrying a concealed weapon in school is not Interstate Commerce, so it's possible that there are OTHER things that aren't Interstate Commerce as well, but we'll have to wait to find out, because the reasoning is beyond me. (I mean, I kind of understand the reasoning behind individual cases, and one can even bundle cases so they make sense, but all of them together leave me lost.)

How obstructionist Republican AGs look will depend on the merit of their arguments, whether the Supreme Court decides to hear the case, how the case sounds when argued, and what the outcome is. For the Republican's sake, I hope they don't let the VA AG make the argument. After hearing his argument on why Public Colleges and Universities should take "sexual orientation" out of their non-descrimination policies discussed..... I don't think he can stand up to the Supreme Court, and I think this could be an interesting case.

[MyrddinsPrecint]

Didn't the republicans use the same method to push through some of their bills?

Really, this is quite ridiculous.

How it was passed isn't possibly a valid argument. Some people have made it, but it's not something that will go to court.

What will go to court is whether Congress has the authority to do various bits of it, which is vague, because exactly what Congress has the authority to do is vague. If you like the bill you say "of course they have the authority to do it!" and if you don't you say "well.... it's vague". And... it is vague. But there's precedent that Congress gets to do whatever the hell they want.... unless they don't.

In my non-legal educated heart of hearts, I don't think that it will be overturned. But it might get heard.

[I_luv_saber]

How it was passed isn't possibly a valid argument. Some people have made it, but it's not something that will go to court.

I'll edit my post with a link to a story. I'd been thinking about it all morning and hadn't thought to put my entire friggin' post in context.

What will go to court is whether Congress has the authority to do various bits of it, which is vague, because exactly what Congress has the authority to do is vague. If you like the bill you say "of course they have the authority to do it!" and if you don't you say "well.... it's vague". And... it is vague. But there's precedent that Congress gets to do whatever the hell they want.... unless they don't.

Sort of my take on it as well.

In my non-legal educated heart of hearts, I don't think that it will be overturned. But it might get heard.

I'm not sure, but my SWAG would be no, it won't be overturned.

[I_luv_saber]

Well, as I understand it, the constitutionality challenge to hr3590 is based on a reading of the 10th amendment. Challengers claim that healthcare regulation is a state right rather than a federal right.

I think it's challenging the constitutionality of mandating purchase of health insurance. They may be using the more broad "states rights" angle, but I think they'll be careful of doing it that way since precedent is mostly against them.

But, as MP points out, if they've been careful in that it's a "tax" and not exactly a mandate, they're probably in the clear.

[fencerchica]

For the Republican's sake, I hope they don't let the VA AG make the argument. After hearing his argument on why Public Colleges and Universities should take "sexual orientation" out of their non-descrimination policies discussed..... I don't think he can stand up to the Supreme Court, and I think this could be an interesting case.

Well, they did also pick David "hookers n' diapers" Vitter as their point man for amendments to the reconciliation bill. (I love how the 2nd proposed amendment is to cut funding to an organization that no longer exists.)

[MyrddinsPrecint]

If you wish to be very amused.... Orly Taitz, fined $20K for her earlier filing that wasted the court's time, is in the news again, only this time it's funnier- her complaint is titled

"VIOLATION OF COMMERCE CLAUSE AND OF PLAINTIFF'S RIGHTS TO GAINFUL EMPLOYMENT AS A DOCTOR OF DENTAL SURGERY UPON DEFENDANT'S IMMINENT SIGHNING OF THE HEALTH BILL".

I'm honestly not sure if she's read the Commerce Clause at all, if she understands that when standards of care go down it's HARDER to get sued for malpractice, or how on earth she passed the bar.



Oh, here's a good article on the original issue. A point I hadn't heard made yet is that the Supreme Court, if it decides the argument is worth having, may not want to discuss it until the law goes into effect-- and the controvercial bit doesn't go into effect until 2014, at which point the politics and the people involved may be very different.

[Philistine]

FWIW-- here is the Complaint filed by 13 States.

There are essentially 3 bases:

1. It exceeds the powers of the Government, and encroaches on the 10th Amendment--AIUI, they will be arguing that it imposes an unfunded mandate on the States, and so, like the requirement for background checks that the Supreme Court shot down in 1997, the "mandate" part of the law should be struck down. (They seem to ignore the fact that they could always withdraw from Medicaid--unpalatable as that might otherwise be).

2. It in an unconstitutional direct tax (a capitation). (Taxes are only allowed on income--per the 16th Amendment, or Article I, Sec. 9 ("No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken"). No idea whether there is any merit in this one.

3. It exceeds the power of the commerce clause as what is being regulated is not the active entry of economic activity, but rather economic inactivity. I don't see this one going anywhere.

--Philistine

[Purple Fencer]

Really, this is quite ridiculous.

Welcome to the GOP.....

[fatfencer]

Obamacare is now the law of the land. It's going to take up to 18 months to fight this. As it becomes more and more successful, it will be harder and harder to build up the requisite steam to keep this fight going.

Oh I'm afraid the battlestation will be fully operational before your friends arrive....

[Purple Fencer]

Obamacare is now the law of the land. It's going to take up to 18 months to fight this. As it becomes more and more successful, it will be harder and harder to build up the requisite steam to keep this fight going.

Oh I'm afraid the battlestation will be fully operational before your friends arrive....

And the Force is weak with the GOP...

[Inquartata]

Now, I know that most movement conservatives would like to see the FDA abolished, in their worship of a totally deregulated free market (i.e. a plutocratic anarchy). But seriously, if the FDA has the right to regulate drugs and medical devices on a federal basis (and it has to, because to do it state-by-state is clearly unworkable) why is it a stretch to say health insurance should be regulated from the federal level?

As others have noted, it's not regulating insurance companies that is controversial. It's regulating their customers, by mandating that they must buy a private product.

It's tantamount to telling people who don't own cars and don't ever want or intend to drive that they have to get driver's licenses anyway or be fined...except that instead of getting them from the state, they'd have to get them from some corporation.

...it's possible that there are OTHER things that aren't Interstate Commerce as well, but we'll have to wait to find out, because the reasoning is beyond me.

There is a logic to the law, but it's not the same as the regular logic.

I have a poor record of predicting SCOTUS decisions, so I'm going to say that it will not rule against this law. Hopefully my streak will continue...

But, as MP points out, if they've been careful in that it's a "tax" and not exactly a mandate, they're probably in the clear.

I think it's actually a fine, isn't it? ( He asks, not having read the bill any more than most of our legislators probably have. )

...they will be arguing that it imposes an unfunded mandate on the States

Well, THAT has worked so often in the past...

Anyway, maybe it wasn't such a great idea for Mr. Obama to criticize the Court during the State of the Union address, after all.

[Hauptman]

And the Force is weak with the GOP...

Unfortunately, the Supreme Court is still leaning towards the dark side.

The only time they pass on a case these days is when they can't get a conservative majority for the decision. And I'm not sure that "conservative" is such a good description anymore; the idea of a radical conservative seems oxymoronic at best.

[Purple Fencer]

Unfortunately, the Supreme Court is still leaning towards the dark side.

Aren't there some possible SCOTUS retirements coming up?

[Philistine]

Aren't there some possible SCOTUS retirements coming up?

Stevens (who turns 90 next month) has made some noise about it (and only hired one clerk, which is often a sign of impending resignation).

Ginsberg (77) has had health issues, and is the other one about whom there is usually speculation.

I doubt an Obama replacement of either would result in a significant shift.

I'm not aware of any suggestion of other impending retirelments. The next oldest is Scalia (just turned 75), who, AFAIK is in good health and quite happy to remain on the Court.

--Philistine

[migopod]

Crossing fingers and hoping for the release of an Antonin Scalia v. Goat sex tape....

[I_luv_saber]

Oh I'm afraid the battlestation will be fully operational before your friends arrive....

*GOP reaction upon seeing the Health Care Bill*

"That's no moon.... it's a space station."