The American Spectator

Pete| 12.21.09 @ 4:11PM

So what? Anyone arrogant enough to decree that the earth's climate must obey him certainly cares nothing for a silly antiquated document.

Ken (Old Texican)| 12.21.09 @ 4:14PM

Quin, I'm not so sure.....about that strategy. Perhaps too many eggs in one basket.

Just maybe...just maybe...our Republican critters are just trying to get the whole dirty old whore of a bill out of the dark smoky bar and into the sunlight.

Perhaps to then disrobe her in the parking lot and look at All the sores?
Just a thought.

JohnD| 12.21.09 @ 4:20PM

The "unconstitutional" argument for the individual mandate is an interesting argument. There is a principle that fundamental rights cannot be burdened by statute.

My question is this: Under this bill, and its individual mandate provision, If you earn no income, do you have to pay out of pocket for health insurance or be fined?

If the answer is no, then the argument fails. Earning income is not a fundamental right. The U.S. Government cannot take anything from you without due process, except, if your earn income. Then they can take a portion of it, whatever portion Congress see fit, as determined by statute. This is permitted under the 16th Amendment to the Constitution, which reads "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

If the penalties for the individual mandate are taken out of income, it is permitted under the 16th Amendment. How and under what conditions they take that income can be determined by statute under the 16th Amendment (see the IRS Tax Code).

Jeff Perren| 12.21.09 @ 4:37PM

Randy Barnett, Prof. of Legal Theory at Georgetown, demonstrates from the perspective of both law and history (based on previous SCOTUS decisions) several ways in which this bill is, in fact, unconstitutional.

JohnD| 12.21.09 @ 6:32PM

The article (Thanks for the link btw) discusses this as a commerce clause case. Regulation of the earning of income IS with federal power under the 16th Amendment. They can frame this as a mandate that is a condition on earning income, the same way states impose mandates on auto insurance as a coindition or driving, also not a fundamental right. Earning income is not a fundamental right, and further under the 16th Amendment, the government may make individuals pay or buy insurance as a condition of earning income.

If you refuse to earn income, then they cannot make you buy health insurance or fine you. If they do, then it might be unconstitutional.

Jeff Perren| 12.21.09 @ 6:51PM

"They can frame this as a mandate that is a condition on earning income"

That would violate the 5th amendment, and probably the 4th, not to mention the 14th, but I'll give your point some more thought before I argue that at length.

Jeff Perren| 12.21.09 @ 6:56PM

By the way, earning income is not a right, true. There is no right to a specific outcome. But the freedom to attempt to earn income is most definitely a fundamental right.

More later, if I and when I have time.

Thank you for the challenge.

Jeff Perren| 12.21.09 @ 6:56PM

By the way, earning income is not a right, true. There is no right to a specific outcome. But the freedom to attempt to earn income is most definitely a fundamental right.

More later, if and when I have time.

Thank you for the challenge.

Jeff Perren| 12.21.09 @ 7:11PM

(Sorry for the duplicate post, by the way.)

One quick question before I disappear for a while. Is it your view that if the legislation is legitimate under one section of the Constitution, it gets a pass even though if violates other areas? If not, what does it matter how they "frame" it?

Not being snarky; genuinely curious about your logic.

JP| 12.21.09 @ 7:22PM

Traditionally, if a law violates ANY article of the contistution it is invalid. Our freedom is not some calculus in which we can add and subtract "rights".

JohnD| 12.21.09 @ 7:45PM

Jeff:

These are all good thoughts, but the right to earn income, or be free to earn cash income, is not free from the burden of imposing conditions (like filing income tax forms and reporting incomes.

As for one clause in the Constitution violating another, that's an interesting question. I would argue that the States that ratified the 16th Amendment were aware of the 4th, 5th and 14th Amendments, and ratified the 16th anyway, carving out the power of the Legislative to place conditions on earning cash income, other amendments notwitstanding.

Note also, the regulation of CASH income, i.e. cash dollars US printed by the Treasury. In-kind income (i.e. getting paid in corn) or like-kind exchanges (buying a company by exchanging stock) are outside the purview of the IRS.

For the record, I am just being Devil's Advocate here; I think the Individual mandate is an abomination; of course, I think the same about the 16th Amendment, for reasons being exposed in this debate.

And Jeff, I am rooting for you to shoot down my argument. If you can, I will steal your logic and make it my own to oppose the Individual mandate on Constitutional grounds.

Michael Moeller| 12.22.09 @ 1:06AM

JohnD,

Allow me to correct a few things. First, the right to travel IS still a fundamental right (even in modern legal analysis) under equal protection. Secondly, the government also cannot take your income without due process, as you state above. "Economic rights" just receive lower substantive due process scrutiny (i.e. rational basis test) under modern doctrine. Whether it should be a fundamental right (i.e. the right to earn a living in the profession of one's choosing as was earlier held to be a fundamental right) as opposed to modern doctrine is a separate question. Modern doctrine gives it lower scrutiny, but it still receives due process scrutiny. Modern doctrine on economic rights is inconsistent with the fundamental principles of the 5th and 14th, but that is a separate issue.

Be that as it may, traditional understanding of the Consitution imposes *no affirmative duties to act*. The 5th and 14th say you have the right to pursue life, liberty and property, it does not say you *must* act in a certain manner. Just as there is no duty on you to act when a person is imperiled (in criminal law and torts), it is within your rights not to act. It does not say in the Constitution that IF you drive, you must buy insurance--this affirmative duty to act is not imposed by the 5th and 14th.

Now, as to the 16th, the same thing applies. Let's put aside any argument as to whether the 16th is inconsistent with the 5th and 14th (it is). The 16th Amendment gives Congress the power to levy taxes on earned income, *IF* you earn it. It does not say *BECAUSE* you earn income, you must do X--like buy car insurance or health insurance.

You can imagine the havoc this would wreak. If the income tax imposed affirmative duties to act, the power would be limitless as to would you would be required to do, like buy a Chevy Impala in Barnett's example. They could use the income tax to impose burdens on you to buy anything.

Michael

Jeff Perren| 12.22.09 @ 4:53PM

JohnD,

I have little to add to what Michael said. However, that may be because I'm not sure I understand your argument, really. It strikes me as one big non sequitur. I don't see how the constitutional authority to take some of my income translates into any legitimizing of the Congressional power to require me to spend it on a particular product or service.

So, the 16th simply doesn't apply. That puts the argument right back at the Commerce Clause, which Barnett shows won't support the case.

Dell| 12.21.09 @ 5:37PM

I highly recommend the link supplied by JeffPerren, above. Randy Barnett's paper is a long and arduous read, but well worth your time. If you click on the underscored word "demonstrates" in his post it will take you directly to the piece written by Professor Barnett. Thanks Jeff!

Chris| 12.21.09 @ 5:51PM

About time. they should have been arguing this all along. What's important is the constitution not tax increases, more spending, etc. So what happens if I refuse to pay the penalty, because I have no intention of buying federal government-mandated insurance? Do the Feds come and bust down my door and haul me away to Levenworth?

Paul| 12.21.09 @ 6:04PM

Dear Chris,

Brave words.

Have you ever tried to defy the federal government when they are determined to bend you to their will?

In answer to your question, the IRS will impose the penalty on you, just as they do with income tax, and they will hound you relentlessly with their unlimited resources until you surrender. Do you think you can fight and win against the IRS? Just try it.

Without a court finding the individual mandate unconstitutional, you'll pay the fine, believe me.

JohnD| 12.21.09 @ 6:36PM

I have taken on the IRS several times, and won every time. Once they came after me for $2000 and when I was done with them they owed and paid me $3500 and made me sign a release saying I would not revise that year's taxes again.

I beat them every time because I understand their rules, regulations, and revenue procedures better than they do. They may have power, but they are not very smart.

Ken (Old Texican)| 12.21.09 @ 6:17PM

Paul,
Good thought.

Chris,
You gotta' be sneakier than that. Get on the dole and make the gubment pay for your insurance.
heh!

Sean| 12.21.09 @ 6:27PM

Of course it is unconstitutional, but the Supreme Court has given the federal government power to do unconstitutional things. The Constitution no longer binds the government.

Thom| 12.21.09 @ 6:41PM

For anything to be unconstitutional we would have to first be a constitutional republic and second have an enforcement mechanism in place. Neither exists in practical terms and practical terms are what matters to the man on the street.
If you think we are still indeed a constitutional republic please tell me how it took 32 years for a simple case to make it to the Supreme Court regarding the Second of the original 10 amendments to the Constitution where as only 5 justices declared there was an individual right after over 232 years of that being common knowledge and practice for most but still to this day no one outside of residences of that Federal reservation of Washington DC has said right there and only those willing to buy the privilege and jump through the hoops required have even the right to keep a working firearm in their home let alone “bare” it as enumerated in the Bill of Rights. Try being caught with just one unregistered round of ammo there too

Please gentlemen, do no put your faith in a document that the Democrats sh_t on every day and the Republicans pick the paper to wipe with. If the Federal Government can’t tell you that you have to buy Health Insurance, what options you need and from who and when you can get medical care, ¾ of the Federal government would be ruled unconstitutional on similar grounds.
Any takers on that point? The Constitution is just words without enforcement and that is all that relic is today.

Ken (Old Texican)| 12.21.09 @ 6:59PM

OK, Thom.
I will bite. What in the hell is your point?

Angel| 12.21.09 @ 8:25PM

I believe Thom is mostly right; government corruption is systemic, the ruling class is rotten to the core. Generally, the courts are part of the problem, but perhaps we can use them to tie up this legislation. It's probably a long-shot, but it's worth a try.

I think this one is on us, folks; we're going to have to decide, once and for all, if we Americans are free men and women--or not. Power to the people!

Merry Christmas to all my fellow Conservative bloggers!

Thom| 12.21.09 @ 9:17PM

Ken the point is in my 58 years on this planet the Supreme Court has not once found the government in violation of the enumerated Constitution and forced it to pay for the consequences and locked anyone up for said violations which naturally leads to the view by those in government that this is all a game, one in which getting caught brings no more than an embarrassment. What happens when you or I break the law, even a traffic law?
It took years to just get the Supreme Court to hear just one of the cases filed against the Campaign Finance Reform laws and every conservative was saying it was blazing unconstitutional; same for eminent domain laws both of which the Court ruled in favor of the government. Even after some of the CFR being ruled unconstitutional (relative to who sits on the bench this week but maybe not next week) it still is a blazing unconstitutional set of laws and do you see anyone in jail for violations Ken?
Simple point Ken, if there is no enforcement there is no constitution and I submit that years and millions to just possibly get a case heard by the Court is not in any shape or form the intended charge of the Federal Court system. One more Marxist judge on that Court will seal our fate as a former republic. A Court that can define the meaning of words and change their context beyond what was their original intent is not going to find anything unconstitutional by the government that put them in unelected, unaccountable life time positions of power.
Get it now?

Ken (Old Texican)| 12.22.09 @ 11:01AM

Thank you Thom.
For some reason, I could not compute on your earlier comment. Now I get it, and it makes me very sad that you are correct. I'm afraid the 2nd amendment may very well have to be the arm of enforcement before we are all through here.

Chris| 12.21.09 @ 7:40PM

A very knowledgeable sources writes: In the House bill, penalties can range up to $25,000 in fines or 5 years in jail. In the Senate bill, it doesn't specify what happens if you not only refuse the insurance but also refuse to pay the fine....

Too bad I am the only one willing to fight this...

Black Ash| 12.21.09 @ 7:42PM

We need to fight this with all available tools: legal challenges, electoral politics, legislative tactics, and public education.

Here is another interesting essay on the Constitutionality of the current US Senate Bill.

Impermissible Ratemaking in Health-Insurance Reform: Why the Reid Bill is Unconstitutional
By Richard A. Epstein

http://www.pointoflaw.com/colu.....-in-he.php

Andrew| 12.21.09 @ 10:22PM

Everyone knows this old saying: "You can lead a horse to water but you can't make him drink."

Apparently, this provision of the legislation is an effort to make the horse drink. If this provision is struck down as unconstituional, I very much hope that the legislation has a non-severability clause, so that Congress will have to start again from scratch.

SoCon| 12.21.09 @ 10:44PM

Better yet, Andrew; how about the damned government stay OUT of health care altogether?

Andrew| 12.21.09 @ 11:24PM

SoCon, I think that goes a bit too far. The "government" includes state governments, and state governments have been regulating the insurance business for centuries. Interstate agremeents regarding the insurance business can be useful too, and the Constitution requires congressional consent for interstate agreements. I sure don't want the federal government to stop health care for wounded veterans, and I don't think the GOP would help itself by advocating abolition of Medicare and Medicaid.

SoCon| 12.21.09 @ 11:43PM

I meant what I said; I'm sick to death of the morons. Everything they touch, they ruin.

Medicare and Medicare are bankrupt, and VA medical care is a nightmare from what I've heard. Surely, we can do better.

Yosemeti Sam| 12.22.09 @ 12:06AM

Must one stand atop the Grand Canyon
and shout - for its' reverberative echoes -
SCOTUS, scotus, scotus, scotus ...; Petition,
petition, petition,petition ....

The 3rd CO-EQUAL branch of - government!

Entreating, to protect against an essentially CONSTITUTIONAL override putsch by Persian Democrats; make no mistake, behind closed
doors is the MO of budding authoritarianism.

Right before our eyes, yet.

Use it - SCOTUS - or lose it via a legacy of languishing CONSTITUTIONAL relevancy.

Geez.

martin j smith| 12.22.09 @ 8:06AM

From a political campaign point of view it would be a good idea to single out three issues ( not that they would be the only ones in debate ) but for advertisements and signs etc that would resonate with the voters: Poor service, higher costs, and the individual mandate would be good candidates.
Most voters voter their pocket books and in the case of health care--the service they will not get..Remember: " Its the economy stupid ! "

Tim| 12.22.09 @ 10:30AM

What other things should we be forced to buy?

Bob Miller| 12.22.09 @ 10:31AM

Does the Supreme Court know it's unconstitutional? This is the court that empowered the EPA to regulate carbon dioxide!

Wylie| 12.22.09 @ 2:12PM

“But movement leaders are right: It is unconstitutional. And it is the ground on which our senators should have been fighting all along, because it is incredibly unpopular as well.”

This is what this Crazy ranter has been saying for months – also emailing, calling the RNC, and every elected R who cared to listen….

It may be a bit late to pivot on to this – but hey THIS IS THE FOCAL POINT TO ATTACK NOW THAT THE GOVERNMENT OPTION IS DEAD!

THE FAR LEFT HAS ATTACKED IT SO THE D ARE PINNNED DOWN HERE FOLKS!

THEY CANT GO BACK AND ADD IN THE GOVERMENT OPTION OR THEY LOSE!

IF THEY TAKE OUT THE INDIVIDUAL MANDATE, THE PLAN IS UNWORKABLE AND THE INSURANCE LOBBY BAILS ON THE DEMOCRATS TOO!

ATTACK ATTACK ATTACK ATTACK – FIGHT THIS I SAY!

Great work here on this post putting all this together!

Wylie| 12.22.09 @ 2:15PM

More to the point – how can you plausibly call it “commerece” at all if a person wants to DO NOTHING!

Congress is attempting to regulate INACTIVITY!

Clearly, that is UnConstitutional….

And if by some scary scary reason this is allowed to stand – they will have the power to literal force you to engage in any activity they deem “good for you”

Left or right – do you want Congress to have this power?

If given this power, we dont have the rule of law anymore we have the rule of men and we must hope to have “the right people” in Congress – we would be in effect back to the days of Kings when people hope for “an enlighteded ruler” since they had absolute power….

Think about this if you are a leftist or D, right now you are OK with ceding this vast power to Congrees because “your people” are now in charge?

What happens when the Karma changes and “the wrong people” are up there?

Thats why we have a Constitution to protect our rights from such arbitrarty abuse of power!

Is trashing our individual rights worth it for a “HC reform” that bankrupts us and STILL leaves 30 million uninsured?

I wont even mention the explosion in costs, premium hikes, and taxes - uh, I guess I just did lol

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