Erwin Chemerinsky: The Constitutionality of Healthcare (LA Times 10-6-09)

[Davis_X_Machina]

There's nothing illegal about requiring Americans to buy medical insurance.

By Erwin Chemerinsky

October 6, 2009

Are the healthcare bills pending in the House and Senate unconstitutional?

That's what some of the bills' critics have alleged. Their argument focuses on the fact that most of the major proposals would require all Americans to obtain healthcare coverage or pay a tax if they don't. Those too poor to afford insurance would have their health coverage provided by the state.

Although the desirability of this approach can be debated, it unquestionably would be constitutional.

Those who claim otherwise make two arguments. First, they say the requirement is beyond the scope of Congress' powers. And second, they say that people have a right to be uninsured and that requiring them to buy health insurance violates individual liberty. Neither argument has the slightest merit from a constitutional perspective....

[TomCADem]

1. If The RW Makes Those Arguments, Doesn't That Mean Medicare Is Unconstitutional?

I don't see how the GOP would finesse an argument attacking health care reform, which is less comprehensive than Medicare, without bringing down Medicare in the process.

[Igel]

3. No.

Medicare is funded by taxes on income, and that's okay (by Constitutional amendment).

Medicare is provided to citizens by Congressional mandate through the executive branch. Medicaid is similarly funded in part, and provided through the states.

You're required to sign up for nothing. The tax money is collected by the IRS. Note that the designation of income tax for Medicare is pointless; excess money is taken by Congress, leaving pointless IOUs, and if there's a shortfall then Congress supplements it with general fund revenues.

Here, the insurance mandate would be the Congress ordering you to pay some insurance company in order not to be subject to some tax. In other words, a tax is imposed on a rather strange set of people, even as a tax credit is extended. How it all shakes out would be interesting to see. I'd also be curious to see how quickly the CBO's budget projections are trashed by reality.

The Interstate Commerce clause is the basis of a lot of Congress' power. Probably too much, but given that legal thinking lends itself to slippery slope arguments that common sense would say could never happen it's pretty inevitable. (I still find SCOTUS' wetlands ruling, and some of the drug law rulings, to be utterly psychotic. By those kinds of arguments, it's pretty hard to find anything that is not subject to Congress, which makes the entire understanding of the Constitution as displayed by the founding fathers and SCOTUS for the first 100 years incomprehensible.)

[JDPriestly]

2. Cherminsky's argument is thin as applied to requiring individuals to l

buy private health care insurance at rates set by private insurers or pay a tax. The government could give a tax deduction or credit for the cost of health care insurance, but that is not the same as requiring people to buy health care insurance. We get tax credits and deductions for lots of things. The tax deduction for mortgage interest motivates people to buy their own homes. The tax credits for child care and student loan interest help relive tax burden for certain eligible taxpayers, but no one is required to pay for child care or take out a student loan.

I think any bill that truly mandates the purchase of health care insurance from private companies will be challenged. \

[Democrats_win]

4. Because you exist, you MUST pay so that insurance company CEOs have golden parachutes.

We've heard a lot of legal BS over the years such as when the supreme joke decided that determining the actual winner of the 2000 election would harm bush so bush should just be declared the winner.

The legal issue is whether the government can seize your property because you exist. Yes, it is easy to find rulings that would seem to support this awful mandate. That's because many legal rulings are pure BS. Nothing changes the fact that this mandate is wrong.

Why can we fine poor people and not tax rich people during this economic recession? Democrats surely know by now that our congress is a disgusting group of cowards. 2010 can't come soon enough.