Under what Constitutional theory can Congress force citizens to buy a product from a private vendor?

[ddeclue]

as in you must have health insurance or we will fine you?

Mind you this is NOT a state legislature and this is NOT auto insurance...

I don't think they can.

[johnaries]

1. They can't collect taxes, either. At least according to some.

Actually, it comes under interstate commerce.

[ddeclue]

4. No there is an amendment regarding income tax

and Congress has the power to levy a tax.

Your argument is that they have the power to FORCE you to engage in commerce?

I find that a weak argument - it stretches the notion of "regulate" quite far.

Does the Congress have the poewr to force you to buy a movie ticket or a cell phone? If not how is health care different than any other privately sold product?

[johnaries]

6. No, that is not my argument. And your analogies are ridiculous.

But then again, every argument I've seen you present tonight has been ridiculous. You misrepresent everything. You spin like a propeller. and you haven't made a single cogent argument. You know what, I'm done talking to you. Talking to you is like talking to a kitchen table.

[ddeclue]

13. First: WHAT analogy?

a cell phone is a product. So is a movie ticket. Apparently so is healthcare insurance.

All are products.

All are sold by private vendors.

The government is going to require you to buy a particular product from a private vendor under threat of tax penalty so why not ANY product. THAT is not an "analogy" that is an analysis.


Secondly you really haven't replied to anything so it's probably better you go anyways.

[ashling]

32. Actually, he has a perfectly valid point

The power to tax was originally based upon the necessary and proper clause, but they covered it by adding an amendment.

What does thecommerce clause have to do with anything?

[Matariki]

83. Furthermore, income is taxed and property is taxed

If you don't have income or property you aren't taxed. But this will require everyone with a body to buy insurance - and higher rates just for living long in that body.

[Gravel Democrat]

24. If the Feds get away with this I hope people know that this won't be the last forced purchase

And when a (R) forces a particular purchase there will be a whole 'nother interpretation
by some that thought this was a good thing

Round and Round it goes

Actually our overlords know well that if we hate each other enough we'll never get around
to real change.

Oh and using the Interstate Commerce Clause to justify a Federally Mandated Purchase
is really quite something. Wickard v. Filburn is unbelievable enough but forcing the purchase
of anything is really quite another step. Precedent setting. I think that's what it's called!

Edit: Corrected spelling of Wickard

[Romulox]

17. Explain how you believe this "comes under interstate commerce", if you don't mind.

What activity in question "affects interstate commerce" in this case?

[grantcart]

2. Good question

[Selatius]

3. It'd make a lot more sense to simply open up Medicare to everyone under 65 and let them buy in.

Once they start paying monthly premiums into the system, it would help Medicare with its finances because younger people aren't as likely to use services until later in life. They already pay Medicare tax. They don't yet pay a premium into it like with a traditional private insurance plan.

[ddeclue]

5. I'd be HAPPY to sign up for THAT...

I don't want to be forced to buy a policy from the corporate insurance thieves by government mandate.

[Selatius]

10. The problem is it makes too much sense. Capitol Hill runs on nonsense.

In a lot of local markets, one or two insurance companies dominate the area. There is no competition. The companies have no incentive to lower prices even if the costs can be spread out over many more people. They will try to keep prices the same or even raise them. With Medicare allowed to cover younger people, these companies would actually have to get off their fat asses and run like they were supposed to.

[truedelphi]

43. The companies don't even have to provide much in the way of product

They can have inferior doctors ignore the actions really needed to diagnose a patient. they can - once forced by the patient to actually consider the patient's condition - suggest a cheap and non effective treatment. And they can stall the entire time - after all, if yo u wither away and die, they won't need to even treat you. Or if they know you are on COBRA and that in fifteen months you'll not be covered any more, they can win that way also.

Whatever.

They have operated as Death Panels. And the patients have little recourse. Now the President and Congress don't want them to go away but to prosper through a mandate on us.

Unless somehow We the People can overcome the clout of the lobbyists and get a strong public option.

[Blasphemer]

28. I'd be happy to sign up for that too.... nt

[lovepg]

8. The health insurance industry is too big to fail....

Thats why we gotta bail them out will 40 million new forced customers.
How is that any different in effect than just taking out tax dollars and giving it too them in a bailout like they did with the banks?
Come to think of it it makes total sense why many companies in the health care industry are getting on board with "reform" now.
Their business model is unsustainable they know it and to stave off the collapse they need reform in the form of this bailout.
Were being had again folks.

[Xicano]

80. +1

n/t

[Zoeisright]

36. Would you make this an OP so I can recommend it?

Please?

[andym]

39. A good idea that I also advocate

The one question I have is how much will it cost those who sign up. They can't afford to give the rates currently given those over 65 (low because they have already "paid in"). Medicare is heavily subsidized. If they go for break even, the rates will be much higher (although hopefully less than private insurance)

[berni_mccoy]

7. They have the authority to collect a tax. And they can define a tax...

for those who don't buy insurance. Plain and simple.

[ddeclue]

9. OK so they can tax anyone who doesn't buy a cell phone from Verizon?

I don't think so.

There are limits to the gov't power to tax. You can't just impose a tax to force people to buy a product they otherwise would not buy.

[berni_mccoy]

14. No, they can tax you for not abiding by the law.

[ddeclue]

21. A law which requires you to buy a private product from a private vendor.

The government can't do that.

What's next? All citizens must own a cell phone? All citizens must own umbrellas?

pick a product.. the Federal government can't tell you you have to buy it like that.

[Xicano]

81. What if they mandated everyone has to buy a vibrating sex toy?

And if you don't abide by the law you'll be fined? Would you then see the error in your thinking?

[Romulox]

12. That's a stretch. Money paid to a private party is not a tax. nt

[berni_mccoy]

16. That's exactly how they would do it and how it was defined in Baucus's plan

[Romulox]

19. They might argue that, but it's not a sustainable argument.

"Tax" has a well defined meaning, and it's not "money paid to a private party".

[ddeclue]

18. Not what I am claiming.

You are told that if you FAIL to buy a product from a private party the government will tax you as a penalty. The GOVERNMENT will do the actual taxing, not the private party.

[Romulox]

23. No, that's just semantics. Law is about the substance of the thing, not the frame.

E.g., regulations are routinely held to be "takings" if they deprive the owner of his reasonable expectation of profit, and the IRS treats self-settled trusts as personal property if they are revocable.

What you are describing is a penalty for disobeying a mandate to purchase a service from a private entity. The underlying mandate will have to be Constitutional in its own right to be enforceable.

[ddeclue]

25. We agree entirely - I can see no basis by which the gov't can force you to buy a product

What if Congress next decides we must all have cell phones or umbrellas or automobiles?

[Romulox]

26. Even more pointedly, the Founders specifically denied the Federal Government the "police power'

--that is, the general power to regulate the behavior of citizens "for their own good".

The only conceivable basis for this assertion of power is the Interstate Commerce Clause, which, our Court has told us, applies to non-economic activity that takes place entirely in one state. So it's not a stretch to imagine the Court approving of the practice of the forced purchase of products as Constitutional.

[ddeclue]

29. This decidedly NOT activity - it's the ABSENCE of activity.

People ARE NOT buying a product. They've never bought the product. They are now being told they must start buying the product. I don't see this as a believeable applicatin of the commerce clause - particularly under a Roberts court.

[Romulox]

33. "NOT buying wheat shipped in interstate commerce" has been held sufficient

to give the Federal government jurisdiction. As has NOT purchasing marijuana that has moved in interstate commerce.

In each case, growing a crop at home for one's own consumption has been held to "affect interstate commerce" such that the Federal government may assert jurisdiction under the Interstate Commerce Clause. The government argued that by NOT buying a product, the people involved were "affecting interstate commerce" as to the market for that product (an illegal market in the case of marijuana!)

If not buying wheat (or pot) is a sufficient basis for the government to successfully assert jurisdiction under the ICC, then not buying Pop Tarts, or a Mr. Coffee, of mandatory, for-profit insurance may well be. It depends on the whim of the Court.

[ddeclue]

34. I'm not talking about "growing" healthcare at home.

I'm talking about not participating period.

How is this anymore Constitutional than the Congress passing a law mandating that all citizens take a vacation in Los Vegas or they will be taxed (fined)?

What about all the people who've never had any desire to go to Vegas?

Same difference as forcing people to buy health care they either could not afford or could not justify buying.

[Romulox]

35. I don't think it SHOULD be held Constitutional, but the question is, "WILL it?"

That's a murkier question. The Court has arguably gotten more conservative (or at least no more liberal) since Kelo. Is authoritarianism a "left" or a "right" issue? Recent cases blur the line, that's for sure.

"What about all the people who've never had any desire to go to Vegas?"

What about people who never had any desire to buy black market marijuana?

The bottom line is, I don't disagree with your POV, your argument, or your conclusion. However, Supreme Court cases are not decided by logic, decency, or parsing. They are decided by ideology and doctrine. Precedent provides an easy path for the SCOTUS to hold for profit insurance Constitutional, and they just might. I think there is a fair chance they might not. But it's not a slam dunk, either way.

That said, the very concept of mandatory private insurance is repugnant to me, and I would hold it Unconstitutional, should I be confirmed to the bench!

[ddeclue]

38. I take it you are a lawyer - I'm an engineer not a lawyer...

:rofl:

I do apply logic to problems however and it seems so does the court most of the time. I would concur that it is not a slam dunk either way but I think that the court would lean against this concept.

[Romulox]

42. Logic? "Substantive Due Process" is one of the leading analytical tools

of Constitutional scholarship!

[shimmergal]

84. You're right, Romulox, that

it's hard predicting how the SCOTUS would rule on this.

Nonetheless, FORCING citizens to buy a certain product from a private, for-profit company feels an awful lot like slavery to me.

And that's the way we should frame it.

If a mandate passes, there'll doubtless be some right-wingers who'll sue making an argument somewhat similar to ours. I suggest that IF there's no public option, we should prepare to cast in with them, at least to the extent of filing a parallel suit. Gotta be thinking ahead.

Plus, if there's massive civil disobedience about buying it, what happens then? We need to come up with an argument and slogan that harks back to the "taxation without representation" and "slavery" issues. Any wordsmiths here want to try their hands at this?

[Laelth]

11. I have no idea.

Sounds unconstitutional to me.

:shrug:

:dem:

-Laelth

[Romulox]

15. The Interstate Commerce Clause will have to be stretched further. That's the only basis

which can be sustainably argued for this power.

[ddeclue]

20. I don't think it will hold up, especially given our conservative leaning court.

[Romulox]

30. I think there is a fair chance it will not. However, the ICC applies to non-economic, intra-state

activity, so... :shrug:

[earth mom]

22. If the g'ment tries to mandate Health Care, I hope some very savvy lawyers sue their asses off!!!

:grr:

[BlooInBloo]

27. Oh gawd. Not more 10thers.

[ddeclue]

31. Nope Not at all.. this has nothing to do with a 10th amendment claim

try READING the post - we are talking about the application of the COMMERCE clause under Article I.

[ProSense]

37. .

:rofl:

[andym]

40. A very good question... n/t

[ProSense]

41. Here is your argument

HR 3200 Probably Contains an Unconstitutional Head Tax


And here is the answer:

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

link

[andym]

44. Very informative reply. n/t

[ddeclue]

45. I'm sorry but it simply doesn't wash..

Congress cannot mandate behavior in this manner.

It makes no more sense than Congress passing a law requiring all Americans to own cell phones or laptop computers. One could make "common good" arguments for both but it is a ridiculous over-reach. People have a right NOT to spend their money if they so choose. This is mandating a private purchase from a private vendor - no way that is constitutional.

Doug D.
Orlando, FL

[ProSense]

47. BS. The case is clear

You're desperate, but it doesn't matter.

[ddeclue]

49. No it's NOT..

Regulate does not mean force people to buy products that they are not now buying.

That is a ridiculous stretch.

Anyone can see that this is ridiculuous merely by changing the product in question from healthcare insurance to something more mundane.

The underlying act the government is engaging in is forcing you to buy a commodity from a private vendor. They government has no authority to do that.

Doug D.

[ProSense]

51. I noticed you exclude auto insurance.

Buy a car and get on the road without insurance and discover what mandate means.

Mandate is Social Security, mandate is unemployment insurance, a lot of things are mandated when you use or are expected to use a system.

[ddeclue]

54. Auto insurance is NOT a Federal mandate...

it is required by state legislatures.

Social security and unemployment insurance are GOVERNMENT programs - the government has the power to tax you and to spend your money for government provided services. That is NOT the same thing as saying the Federal government has the power to make you buy a Pizza from Papa Johns or shop in Walmart.

[ProSense]

62. It's a mandate.

People pay into Social Securtiy and pay unemployment insurance and may never use it.

These are mandates whether you like it or not, and are no different from mandating health coverage.

Does SCHIP have mandates?

[ddeclue]

65. Yes but you fail to grasp that those are GOVERNMENT programs.

The government can tax me all day long and provide me with government services all day long. That includes SS, Medicare, Medicaid, sCHIP.

The government can NOT tell me I must buy a bottle of Heinz ketchup or Vlasic pickles.

:eyes:

[ProSense]

67. Health care coverage is a bottle of ketchup? n/t

[ddeclue]

69. both are being sold as commodities by private vendors so yes.

[NickB79]

63. You are mistaken. Wisconsin doesn't require auto insurance to drive on the roads

I believe New Hampshire also doesn't require it.

That means it isn't a federal mandate.

[shimmergal]

86. But no one HAS to buy & drive a car.

Also in many states, if you can show sufficient means to meet a judgment for liability, you don't have to buy car insurance even if you own and drive a vehicle.

It's a falso analogy.

[BlooInBloo]

85. Heh - you fell for it. OP suckered you in, pretending to ask a question for information...

In fact, they were just cowardly using that as a cover for a whiny right-wing debunked mythical crank "legal" argument.

[LooseWilly]

48. That sounds like a rather convincing legal opinion. But...

... the entire argument seems to me to hinge on a foundation of:
"Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good."

I'm not a lawyer, but I'm sure the notion that the Commerce Clause provides precedent to "regulate just about any aspect of the national economy" is a point that could be argued. Likewise the assertion "Health insurance is quintessentially an economic good.", given the notion of a mandate without sufficient competition in the industry to create true choice, could also be legitimately argued.

That said... depending on the details that are wrung from the Senate... it might be interesting to see just such a challenge. Who knows... in order to make "Health insurance ... quintessentially an economic good" a robust public option might be forced by the courts in response to just such a suit...

[girl gone mad]

66. I disagree with this analysis.

I will refuse any government mandate to buy private health insurance from these highly unethical for-profit businesses.

[ProSense]

68. It's like a debate in

the Twilight Zone.

[DireStrike]

70. I don't think it matters if it's unconstitutional

If it is a giveaway to private companies, you can bet the cons on the SC will find a way to support it.

[Hosnon]

79. All things are possible through the Lord our Commerce Clause. Ohmmmm. nt.

[jeanpalmer]

46. It's not really a tax

It's more like a penalty or a fine. I think they have the power to do that. The government imposes penalties for various regulation violations, like environmental violations. I'm guessing it has the the legal basis to do the same with regard to not purchasing healthcare.

[ddeclue]

50. why not a "fine" for not owning a cell phone or an automobile?

The government can't force you to buy a product at gunpoint from a private vendor.

They can force you to pay for government provided services but they can't force you to go to the movies or take a vacation or buy a computer any more than they can force you to buy healthcare from a private vendor.

If the government provided that movie, vacation or computer to you it could force you to pay for it through taxes. Indeed if it first purchased the movie ticket, vacation, or computer from a private vendor and then gave it to you, it could force you to pay for it through your taxes.

It can't however say you must buy a cell phone or worse yet you must buy a Verizon cell phone.

Doug D.

[ProSense]

52. Why not a fine for getting on the road without insurance?

Oh yeah, there is one.

[ddeclue]

55. STATE laws not Federal.

not the same deal.

[NickB79]

64. Not in Wisconsin there isn't. NT

[alcibiades_mystery]

74. Because MY costs and the aggregate social cost doesn't skyrocket

because of your non-cellphone ownership, nor will you show up around town demanding to use a cellphone in an emergency situation, and making the rest of us pay for it.

[TransitJohn]

72. Those are fines for doing something

not fines for not doing something. Why not a fine for not walking your dog?

[alcibiades_mystery]

75. Why not a fine for NOT cleaning up after your dog?

Oh, that's right.



"But how could they infringe thus on my LIBERTY! Forcing me to clean up dog shit? I'm outraged!"

It's because not doing so constitutes a social harm.

[sohndrsmith]

53. Nor can the force citizens to buy a product from a public/gov't entity...

without stipulation - at least as far as I understand your argument and others...

I believe there are certainly federal/constitutional theories - even laws - that citizens are forced to provide tax payments, pay fees for, etc. from public and private vendors. However.... the key element here is: choice of such citizen to engage in activities or acquire possessions that require them to pay such dues/fees/taxes.

I am not required to pay sales tax unless I want to buy that Red Bull.
I am not required to pay income tax if I have no income.
I am not required to pay for insurance (health/auto/home/etc.) if I don't have a car, a home or income.

There is no requirement (that I know of - and I have tried to find one) under the laws or Constitution of this country (or the states) that require purchase/fee/enrollment etc., of any citizen that is NOT predicated on a condition, desire, asset, property, etc., but is simply required - unilaterally.

If someone can come up with one that breaks this argument - please - speak up!

I am not a "10th-er" or some other ridiculous "-er" of some sort. My concern in this argument is that I have public health insurance (for which I am not required to pay a premium for - and for which I qualify specifically because I cannot afford premiums, fees or other payments that private health insurance require).

For those who carp on the nuisance that they "don't want to pay for all the ED visits of immigrants, homeless, etc." - I can say only this:

If those of us who are covered by state/federal health insurance (and it's not great - even good - by any stretch - but it's SOMETHING), the costs would be mondo-pluto-astro-friggo-nominal - to tax payers, and more importantly: to families and individuals who would die and suffer if health care would be unavailable, inaccessible or denied because premiums weren't paid.

BELIEVE ME... if I could afford premiums for reasonable, preventive, adequate health insurance, nothing would stop me from doing so. Sadly, I can't.

When I had such insurance, I practiced preventive health maintenance because it was available to me. I went to the dentist regularly, I saw my cardiologist, my hematologist, my GP, kept up with my VWD monitoring, kept up with my heart problem monitoring, and so forth.

State-funded insurance makes it difficult if not impossible to follow or practice preventive care, except in one or two instances (unless one is or has a child). Taking THAT away from those of us who rely on no other state assistance but health coverage - is extremely short sighted, if not stupid.

Thanks for the post. It's a question that too few take seriously and too many dismiss as "10th-ist" or "I don't want to pay for you"...

...sad.

[kenny blankenship]

56. I think they're called poll taxes - capitation

which is provided for in the Constitution. Article 1, Section 9
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

Now forcing people to buy something at profit from a private entity-

that's called a Royal Monopoly.

[ddeclue]

58. Actually poll taxes were banned under an amendment in 1964.

[kenny blankenship]

59. Well, the Royal Monopoly theory is still open then

As long as we're cool with that.

[ddeclue]

60. I was afraid to even go there for the backlash that you'll get... but...I'll let you do it.

[ddeclue]

57. Thanks and I'd be all too happy to pay the government taxes to have a government provided

health care program or even to administer a single payer program. That is different than telling me I must buy a private product from a private vendor which serves to enrich that vendor at my expense while not necessarily providing me with anything useful in return.

And we are talking about the commerce clause in Article I Section 8 here NOT the Tenth Amendment.

If anything, I'm a NINETH-ER who believes you have an unenumerated right to government provided healthcare. :rofl:

Doug D.

[excess_3]

61. itis called ...'Bill of Attainder'

the uninsured will be declared guilty,
and then fined or imprisoned.

[Freddie Stubbs]

71. Probably the same one that they would use to create a public option

[Statistical]

73. They do have the power but even if they DIDN't there is an easy out.

1) Raise tax of EVERYONE $1000. Period across the board from dirt poor to billionare. Just change the tax code that a line item is added +$1000 to all tax calculations.
2) Offer $1000 tax credit if you have healthcare.
3) Require Healthcare companies to send a W-99 (just made up the number) form to IRS each year that indicates proof of enrolment.

Technically there is no tax for healthcare, defacto there is a tax for healthcare.

[TicketyBoo]

76. Someone else posted this link

But I don't think it was in this thread:

http://www.healthreformwatch.com/author/mark-hall/

[glinda]

77. Good point. But if we had Universal and taxes helped pay for it well then....

[kenny blankenship]

78. then it would not be forcing people to buy a product AT PROFIT

you see how maybe there's a difference?

[johnaries]

82. From a strictly Constitutional point of view? No. The Constitution

does not make that distinction.

[Trillo]

87. Profit, by definition, would have to be excluded from "General Welfare"

as it's a type of "Specific" or non-general welfare designed to benefit a few in a very specific way that others will never receive.