The Nation's Pulse
The Individual Mandate Slope
Next the Feds will fine you for failing to put in a rainwater harvesting system.
Americans are used to the state forcing us to buy things. More than likely your state government forces you to purchase automobile insurance in order to operate your motorcar, just as you must buy a helmet to peddle your bicycle, mud flaps if you drive a tractor-trailer, and trigger locks for your blunderbuss. We have become used to such government mandates. Small wonder the Democrats think they can get away with forcing every American to purchase health insurance.
But until now, the federal government has been largely in the business of telling us things we cannot do. As one constitutional lawyer recently told the New York Times, besides the draft and taxes: “it’s hard to think of anything else that the federal government requires you to do.”
Doubtless, the federal government has a long list of things it would like to force Americans to do: get more exercise, recycle, stop smoking, turn off the Rush Limbaugh show. After all, why let state governments have all the fun? True, the role and scope of the federal government was somewhat limited by the Founding Fathers, but there are ways to get around that. In particular, there is the Commerce Clause.
The federal government has sought to regulate all kinds of wacky things using the Commerce Clause, from marijuana grown for personal medicinal use to the Gun-Free School Zones Act. The feds’ right to trump state medicinal marijuana laws survived a Supreme Court challenge (Antonin Scalia explained his “let’s expand federal power” vote this way: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce”), but the gun zones act did not. Now Democrats are saying the Commerce Clause gives Congress the right to tax or fine Americans for not buying health care insurance, the so-called individual mandate. It is anybody’s guess where the current Supreme Court will come down on this one.
But make no mistake, if the law is passed, it will be challenged, and hopefully on the grounds that it violates the Takings Clause of the 5th Amendment, which prohibits the government from taking private property for public use without just compensation. The government is indirectly taking your money and mandating a private purchase, or face a fine.
But the Democrats’ perversion of the Commerce Clause pales to the language tricks they’re using to mislead citizens. “Democrats in the House and Senate have framed the mandate as a tax provision, which might have the effect of helping the bill dodge some of the constitutional showdowns,” notes the website Factcheck.org. Indeed, by calling a fine something it is not — a tax — Democrats are purposely misleading the American people. By simply changing the name of something, they think they can change its essential character. Democrats say a goat is a mule, therefore it is now a mule, even though it still headbutts you in the butt like a goat.
Congress, of course, has the constitutional right to tax to its heart’s content. So how much will those of us who refuse to comply be fined…I mean taxed? Under a recent Senate plan, Americans who do not buy health insurance would be forced to pay a tax of up to $1,500 per year.
WRITING IN THE Wall Street Journal, David Rivkin Jr. and Lee Casey note that a “tax that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by ‘taxing’ anyone who doesn’t follow an order of any kind.”
Democrats, however, seem more interested in cutting a deal with insurance companies than in upholding the Constitution. Democrats will require insurance companies to accept persons with pre-existing conditions. Without the mandate there is no incentive to buy insurance until you get sick. The only way the insurance companies will sign on to the Democrat’s plan is if young, healthy Americans are forced to buy insurance.
Democrats justify the individual mandate on the basis that uninsured persons use health care services, emergency rooms in particular, and do not pay for the services, thus the cost goes to the insured or the hospitals. But another way to look is this is by contrasting health care policy with our education policy. Doubtless some Americans could not afford schooling for their children if they had to pay for it out of their own pockets, therefore everyone — or almost everyone — pays through taxation. There is, obviously, no mandate that requires every individual American to pay for his child’s education or face a fine. Democrats are betting that Americans would prefer the individual mandate over a tax increase, because, as noted earlier, Americans have become used to state and local government forcing us to buy things we don’t necessarily want to buy.
Feel like you are standing on a slippery slope? Will Democrats first fine citizens who refuse or cannot afford to buy health insurance, and later fine citizens for failing to purchase a rainwater harvesting systems or hybrid vehicles? I would prefer not to find out.
About the Author
Christopher Orlet writes from St. Louis.
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Appleby| 10.28.09 @ 6:41AM
Very soon now the Obamanauts are going to find out that you cannot force Americans to do what they do not want to do.
We are the only country in the western world that does not have a viable dollar coin or use the metric system, despite 40 years of strenuous effort to force them both upon us.
The outlawing of prostitution, gambling and illegal drug use -- even with limited government takeover of all of the above that was touted as a solution to the problem has been a failure.
I can hear the chanting now. NO WAY! WE WONT PAY!
JohnD| 10.28.09 @ 9:33AM
I disagree that States can force you to buy auto insurance. If you refuse to drive, they cannot make you buy auto coverage. Rather, it is a precondition imposed by the State for being licensed by them to drive an automobile.
Likewise taxes; if you refuse to accept income, the State and Federal government cannot take anything from you. Same with property taxes, if you refuse to own property. Taxes are, therefore, voluntary.
This is where the distinction exists with this Individual mandate, which makes it, in my learned opinion (I am a lawyer) Unconstitutional. Driving and earning income are priviledges, not fundamental rights, like living (or owning a gun). There is no way to avoid the Individual mandate (like there is the auto insurance or income/property taxes). This is where comparisons of the Individual mandate to taxes or auto insurance mandates fail. This what distinguishes it from other State mandates, and what, in my opinion, make it unconstitutional.
Appleby| 10.28.09 @ 10:39AM
If you live in rental property, you pay property taxes -- you just don't see them.
JohnD| 10.28.09 @ 11:10AM
And if you choose not to rent, you can avoid the costs of the property tax. The point is, you cannot be forced to pay it. It is a voluntary tax, as all taxes are. The individual mandate is not. It is a mandatory taking, that no behavior can avoid paying.
shoey| 10.28.09 @ 1:29PM
who in their right mind would choose not to drive, maybe wealthy Elites who can pay for someone else to do it, maybe inner city dwellers who have access to public transport, so the rich can afford not to drive and the poor sometimes can't afford to drive, but the middle class MUST drive, if the middle class "chooses" to stop driving, it all falls apart.
ridiculous, Big Gov. , Power Elite, freedom-robbing, bull crap!
so if i don't drive, don't work, and never own anything, then i'm free to be free, otherwise arrogant, moronic East/West Coast Elites get to tell me how what they think i should buy.
it's an evil arguement , made by evil ppl.
shoey| 10.28.09 @ 1:43PM
the Founders warned us against this attitude.
i don't know the exact quote butthe meaning goes something like this:
ppl who are willing to scarifice their freedom for safety or security, will get neither freedom, safety or security.
JohnD| 10.28.09 @ 1:55PM
shoey:
I agree, driving is virtually necessary to earn a living, or even get groceries to survive. But driving is still a "privilege" in the eyes of the law, one that can be revoked by the State for any reason or no reason at all. That is why their is no due process in traffic court, because no fundamental rights are implicated.
Same thing with earning income; you need to earn income to survive, yet it is not a "right."
My argument is that other mandates can be deemed voluntary because they are imposed as a condition of being able to do something else. Want a license to drive from the State, then you have to buy auto insurance; want to earn cash income (cash currency issued by the Federal Traesury Department), then you have to share that cash with the Federal, State, and U.S. Government; want to own real estate, registered in the county recorder of deeds office, then you have to pay the property tax. To avoid these taxes, you can refrain from these behaviors the tax is conditioned on. This makes it constitutional.
The individual health insurance mandate is unlike these. There is no behavior to refrain from to avoid the tax. It is a completely involuntary tax, and that is why it violates the takings clause. This is my point.
shoey| 10.28.09 @ 2:09PM
i agree, that there is a difference, but it's only a difference in degree not concept.
the concept is wrong and needs to be abandoned.
JohnD| 10.28.09 @ 4:06PM
I agree, the concept that things like driving or earning income or owning property are not fundamental rights is problematic. But the alternative may be worse. . .
It would seem, in the example of driving, making it a fundamental right means the right cannot be burdened, let alone restrcited. Free driver's licenses, even for people who cannot drive, and free car registrations, or have the State get out of the licensing business altogether. It also means full-blown jury trials for drunk drivers before taking or suspending their licenses. And, it would mean auto insurance would be voluntary and optional.
Likewise making property ownership or earning income a right is also a problem. If earning income is a fundamental right, if no one hires me because I am a lousy worker, do I have a cause of action? Against whom? Similarly, if there is a right to own property, and I cannot afford a house, what happens then?
Rights coexist. If a "right" doesn't coexist with others' rights, it becomes prvilege or license. My right to free speech doesn't burden your right to free speech. My right to my property doesnt infringe on your right to your property.
But a "right" to have health care means I have to infringe on your property rights if I cannot afford health care. A "right" to a "living wage" infringes on my employers right to his property, and his right to contract. A "right" to housing, same thing; it infringes on a landlord's property rights, or the property rights of my neighbors who have to pay my rent if I cannot afford housing.
Therefore, health care, housing, a living wage, cannot be rights. They would be privileges.
If a right to drive a car were a right, then I have the right to drive my car drunk, and crash into your car without insurance.
shoey| 10.30.09 @ 2:43PM
if i accept your logic all "rights" are problematic, because any right that i have "infringes" on anothers access to that "right".
your logic is that of the "static" pie
and it's a favorite of marxists and globalists
shoey| 10.30.09 @ 2:56PM
first you say,
"if there is a right to own property, and I cannot afford a house, what happens then? "
(making the point that owning property is not a right)
then you say:
"My right to my property doesnt infringe on your right to your property. "
(claiming your "right" to own property)
which is it?
shoey| 10.28.09 @ 2:21PM
ah, but there is behavior to refrain from.
channeling my inner-enviro-social justice-marxist:
the science is unquestioned that ppl should not eat meat, not eating meat is therefor the "neutral" behavior, if everyone conformed to the correct thinking nationalized healthcare would not be nesscessary, because we know that not eating meat will "fix" everything.
forgive my fuzziness here, i'm not a rhetorican, but i hope you get my point.
Appleby| 10.29.09 @ 7:17AM
Sometimes not driving is chosen for you as it is for me. But even before I lost enough eyesight so even in a city where people drive with their eyes glued to that Two Inch Screen between their thumbs will not permit me behind the wheel, I rarely needed to drive. Its all in what you get used to.
And considering the large number of binkie-twiddling fools there are out there aiming their SUVs unseeingly at people, places and things outside that Two Inch Square, its a good thing yez are required to be insured against your own refusal to put the binkie down.
shoey| 10.31.09 @ 3:02PM
"its a good thing yez are required to be insured against your own refusal to put the binkie down. "
i'm so glad that you have my best interest at heart.
the problem you are lying, you demand that I be insured so that you are safer, so that you have less risk, so that you have more security.
that's ok, it's good to watch after your own best interest, but the the Constitution does not allow for your self-interest to override my freedom.
that's what Levin would describe as Statism.
shoey| 10.31.09 @ 3:21PM
no matter what any of you throw at me on this issue I can defeat it with the principles of the Founding.
it is not I who am defeating it, it's the idea's and principles of the Founders that defeat this logic.
KyMouse| 10.28.09 @ 10:56AM
"Gun free" zone, the sign pictured on the TAS table of contents says. I joined the NRA during the Clinton presidency, and have been receiving its "1st Freedom" magazine. Every issue has a page called "Armed Citizen," with newspaper accounts about people who have defended themselves. I photocopy those pages, and when I take used magazines to waiting rooms (and other places), I insert an "Armed Citizen" page into at least one of them. That single page says so much about the rights and responsibilities of Americans to defend themselves against criminals.
MikeN| 10.28.09 @ 12:31PM
No state in the country, nor the federal government, requires one to wear a helmet while selling bicycles.
tj| 10.28.09 @ 12:41PM
Want to do something constructive... VOTE EM ALL OUT 2010/2012. I just donated to Marko Rubio of Florida, Doug Hoffman of NY, and David Harmer of California. "We the People" can win this if we all take up the mantle against corruption and take back our country. I will never send the GOP any money evuh again until or when they return to conservative values....they just don't get it!!! Duh! What part of you lost the last 2 elections does the GOP NOT UNDERSTAND???
Pete| 10.28.09 @ 12:46PM
To borrow from Monty Python's Life of Brian: "I don't think he meant to say just while selling bicycles, rather he was referring to general safety for anyone dealing in commerce related to wheeled transportation devices."
Louis Jenkins| 10.28.09 @ 12:46PM
Democrats are purposely misleading the American people.
Gosh, NO!! Really?
Actually, its both parties that are trying to mislead the American people. Admittedly the conservatives less so than liberals, but both are trying to lead like the Piped Piper in some form. And if we don't pay the taxes- er uh-privilege fees they're going to take our property or kids away from us? Well, they've already done that to some extent through public education, tv commercials, public health care, DSS, eminent domain, and an entitlement society. The commerce clause is so misused it should be removed from the Constitution.
Nootcheez| 10.28.09 @ 2:34PM
Using the argument in favor of mandating health insurance that government already mandates automobile insurance is not a valid argument. The difference between health insurance and automobile insurance is that health insurance covers you. The automobile insurance minimum required by most states covers damage or injuries you do to others.
shoey| 10.28.09 @ 3:46PM
"The automobile insurance minimum required by most states covers damage or injuries you do to others."
isn't that what Civil Courts were invented for?
Nootcheez| 10.28.09 @ 4:01PM
I'm sure civil courts were invented to settle disputes between private parties. But the "personal liability and property damage" minumums you carry are required so the victims of your driving are not left without some sort of compensation.
If you run over your neighbor's mailbox, your insurance pays to replace it (after the deductable, of course) assuming you hang around to admit it.
shoey| 10.28.09 @ 4:09PM
the purpose of the Civil Courts is to determined compensation for wrongful behavior.
shoey| 10.28.09 @ 4:35PM
the Courts are charged with determining liablity and compensation.
since when does the Constitution allow for anyhting else.
right now, the insurance company is determining liablity and compensation.
UNCONSTITUTIONAL!
Eldon54| 10.29.09 @ 10:38AM
Actually most states allow you to self-insure. If you can show that you can financially pay out of your own pocket the minimum liability coverage required then you can opt out of buying auto insurance.
shoey| 10.31.09 @ 2:53PM
very convient for the wealthy, the rest of us are still slaves of the system.
shoey| 10.28.09 @ 3:52PM
i'm not agruing for the Helathcare Mandate, i'm attacking the underlying principle of the whole concept.
Nootcheez| 10.28.09 @ 4:05PM
I agree with you. I'm only questioning the use of the auto insurance mandate by many politicians to justify the health insurance mandate.
shoey| 10.28.09 @ 4:11PM
if we knock the "foot" out of the door, the door is closed.
shoey| 10.28.09 @ 3:59PM
and that principle as i see it is:
Government is now allowed to pro-actively make us do things for our own good.
they do not have that right.
they do have the right to punish you for wrongful behavior and that's it.
you do wrong, they punish you, end of story.
Appleby| 10.29.09 @ 7:22AM
But they consider that you are doing wrong when you eat more than they mandate, of food they do not like, and when you take the elevator instead of walking up the stairs, and when you produce more babies than they think you need, and when your kids sit in a tree reading a book instead of playing football, because reading, eating, riding and junk food make you fat, and they believe that being fat is evil.
So they propose to punish you for it.
Simple when you think like they do.
shoey| 10.28.09 @ 4:48PM
what it comes down to is this:
we can't have our cake and eat it too.
if you want to ensure the Government cannot "Mandate" you, then you must prevent them from taking the first steps down that road.
we have to walk back a couple of steps to a little scarier, but freer world.
or we can all be slaves of the Ruling Class.
your "choice"
Dave | 10.28.09 @ 6:11PM
The current forced "mandate" to pay-up or be taxed, fined or taken to socialist nirvana jail (even if you can't afford it) reminds me of that old Monkees hit from the '60s. Remember?
Here we come ...
Walkin' down the street ...
We get the funniest looks from ...
Everyone we meet ..
HEY, HEY, WE'RE THE ... "NAZIS" ...
OK, not exactly vintage Neil Diamond, but it works for me. Just remember the old rule of parody writing -- "In order for a bit to work, there needs to be a grain of truth running through the premise."
The one above has it ... IN SPADES. Spades? Is that too racist?
Only if your Eric Holder and company
Pingback| 10.28.09 @ 10:59PM
Twitter Trackbacks for The American Spectator : The Individual Mandate Slope [specta links to this page. Here’s an excerpt:
Fred Thompson| 10.29.09 @ 4:53AM
Well, it WOULD be WONDERFUL if Obama dictates citizens must invest in rainwater collection systems. In many states, rainwater is PROHIBITED from being collected by citizens, be they landowners or not. That rain rightfully belongs in the reservoirs, don't you know. So...Let's all hope the Obama Nation wants to control water by stealing it from the States.
shoey| 10.31.09 @ 6:43PM
NO!
dictating that they must is just as bad as dictating that they can't
shoey| 10.31.09 @ 6:49PM
it's not the States "rain"
it's "our" rain, but not the collective's rain, each individuals rain, the rain that falls on you or your property becomes "your" rain.
shoey | 10.31.09 @ 6:51PM
to do with as you choose.
whether that be letting it run off, or collecting it
Pingback| 10.29.09 @ 9:25AM
The real cost of Obamacare | Worth Reading links to this page. Here’s an excerpt:
Dr. Gregory Garamoni | 10.29.09 @ 9:46AM
Eric Holder will argue before the Supreme Court that, because the Constitution is now officially a living, breathing document, the Eminent Domain clause can be injected with a breath of fresh fascist air and thereby stretched to include not just property, but the human body as well.
He will quote Obama's 1996 keynote address at the Democratic National Convention: "It's that fundamental belief -- I am my brother's keeper, I am my sister's keeper -- that makes this country work. It's what allows us to pursue our individual dreams, yet still come together as a single American family. 'E pluribus unum.' Out of many, one."
The Court will rule government has an inherent interest in people being healthy, because they serve the public purpose of yielding tax revenues: Healthy people are better at being their brother's keeper. Under the "Takings Clause," the government will claim ownership of people and their health.
We will be literally and figuratively taken.
Dr. Gregory Garamoni
Doctors on Strike for Freedom in Medicine
http://www.doctorsonstrike.com
Ron| 10.30.09 @ 1:56PM
In one short year the man who was going to be a president for ALL the people has divided us like no other before him. We are treading on dangerous ground. If something isn't done soon we will see another revolution.
Blackwatch| 10.31.09 @ 8:28PM
OK the problem with mandates is that they always gore someone not intended to hit. so with medical care the hospitals and doctors are mandated by the Govt. to provide life saving health care to anyone who walks in the door, regardless if they pay or not. They have to raise the cost of care for everyone else when people dont pay. THIS ENCOURAGES FREELOADERS!! Duh!! We need to get the freeloader 20 yr old healthy adults pay into the system by requiring health insurance for medical care. Millions of healthy young people count on the system to "be there" for them if they are injured or sick. Make them sign up now OR__wait for it____tell them no MRI, NO Chemo, NO free stitches NO free arm/leg cast when you need it. The other thing to ensure compliance with a mandate for insurance is too exclude medical expenses from bankruptcy proceedings. People without insurance get hurt, rack up a $50K+++ in med bills and then the BK. That hurts all the other consumers which makes everyones rates higher. Any young adult can get a high deductible HSA account for less than $100 month. If you have a preexisting condition then we set up an assigned risk pool just like we do with car insurance. The GOVT has created this mess not the insurance companies, the doctors, big pharma, the nurses union, etc. GOVT INTERVENTION INTO THIS INDUSTRY IS NOT THE SOLUTION IT IS THE CAUSE OF THE PROBLEMS.
Long live the Republic. (556 voter)
shoey| 11.1.09 @ 10:49AM
first you say:
"OK the problem with mandates is that they always gore someone not intended to hit."
mandates bad.
then you say:
"We need to get the freeloader 20 yr old healthy adults pay into the system by requiring health insurance for medical care."
mandates good
then finally:
"GOVT INTERVENTION INTO THIS INDUSTRY IS NOT THE SOLUTION IT IS THE CAUSE OF THE PROBLEMS. "
mandates bad again?
dude, you are all over the place.
are you just confused or do you have some kind of demented purpose?
Pingback| 11.1.09 @ 7:31AM
The American Spectator : The Individual Mandate Slope links to this page. Here’s an excerpt:
www.us-bapeoutlet.com | 4.3.10 @ 10:39PM
www.us-bapeoutlet.com
poptropica | 4.9.10 @ 8:38PM
thanks you very much for your information
Poptropica
Poptropica