Journal pudge's Journal: Another Liberal Hates the Rule of Law 38
You've probably seen this, but I can't pass up pointing it out. Many liberals hate the rule of law -- and by this, I mean they despise the notion that we should follow the law, and instead they want us to just go by what they think is best at the time (a.k.a., the rule of man) -- but few admit it so clearly as Rep. Phil Hare (D-IL).
Cross-posted on <pudge/*>.
Can't we figure out a way to do both? (Score:2)
It seems our two parties are convinced we can only have one or the other. Either we have no universal health care, or we have to bend the constitution to get it. I'm not convinced there's not some way to get both. I mean, we already have Medicare and Medicaid, why couldn't we just use them as a template?
Of course, we were promised health care reform and only got health insurance reform, so I guess I shouldn't set my sights too high...
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Either we have no universal health care, or we have to bend the constitution to get it. I'm not convinced there's not some way to get both.
Thankfully, there is no such way, without amending the Constitution.
I mean, we already have Medicare and Medicaid, why couldn't we just use them as a template?
Those are also unconstitutional.
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I disagree, would this not relate to their duty to "provide for the common Defence and general Welfare of the United States"? I think a good argument can be made that a healthy population is good for our general welfare as a nation, thus the federal government can provide health care, assuming it does not run afoul of any other constitutional clauses. It would probably be better if the states managed that themselves, but they can hardly keep themselves from collapsing already (see California, Michigan, et
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I disagree, would this not relate to their duty to "provide for the common Defence and general Welfare of the United States"?
No. The Tenth Amendment says that any power "not delegated" to the federal government, cannot be exercised by the federal government, and "general welfare" is not a delegated power, it is a description of the powers that follow in Article I, Section 8. So the part you refer to says "taxes can be collected and money be spent on powers for the common defense and general welfare," and then the rest of Section 8 describes what those powers, specifically, are.
As Madison -- the author of the Tenth Amendment --
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Oh, I should note that my arguments were specifically against the mandate, not Medicare/Medicaid, and other provisions. The stuff I mentioned largely -- apart from the Tenth Amendment stuff -- is about FORCING people to comply, which is obviously unrelated to anything BUT mandates. :-)
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Agreed, the mandate seems a pointless, roundabout, and illegal method. I would never defend it as constitutional, though I wouldn't be surprised if it was found to pass muster through extensive case law (not that I would agree with it in that case).
My thought is simply that we should want to find a way to provide health care for everyone without violating the constitution. Instead we have the Republicans who think Capitalism is more important than people's lives, and Democrats who think people's lives ar
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In what way is the "mandate" (I put it in quotes because it's a really misleading name for what is actaully implemented in the legislation) unconstitutional or illegal?
There's nothing unusual or unprecidented about it at all. It's just a tax penalty if you're an able-bodied, employed person of a certain age making over $X/year and choose to remain uncovered by health insurance. This is, in effect, no different than the tax credit for buying a home. In both cases, someone who doesn't buy something pays a
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I think the problem is the way it is framed. I agree, it would be trivial to increase the income tax and give a credit to those who purchase insurance, thus keeping it on the right side of the law. Alternatively, even providing government health care, paid for by a tax. But the legislation makes it a penalty instead, which does seem to run afoul of the constitution.
So, I agree with you in principle: this shouldn't be an issue. However, it seems like Congress implemented this system in the worst possibl
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In what way is the "mandate" (I put it in quotes because it's a really misleading name for what is actaully implemented in the legislation) unconstitutional or illegal?
First, no, it is not misleading at all. It is a mandate. It is a requirement. The bill is completely clear: "An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."
That is a mandate, obviously.
Now, as to how it is unconstitutional, I've discussed it many times, including in another comment in this discussion [slashdot.org]. Oh, and I forgot to mention
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No offense but I think that's a whole lot of quibbling and splitting of hairs. The "mandate" is no more a mandate to buy insurance than the tax credit is to buy a home. Period. You aren't breaking a law and nobody is going to come to your home and haul you off to jail. The beginning and ending of the entire thing is that if you don't, you'll pay higher taxes. Big deal.
And how ar eyou giving up any medical privacy at all? Whether you do or do not have insurance says nothing about any procedures, claims
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The "mandate" is no more a mandate to buy insurance than the tax credit is to buy a home. Period.
Except, of course, you are wrong, and I absolutely proved it. Denial isn't getting you very far.
You aren't breaking a law
Absolutely false. That is precisely what you are doing. As the law says: "An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."
You are REQUIRED by this law to buy insurance. If you do not, you are breaking the law. This is clear-cut and sim
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Wow. You're really around the bend on this one.
"And not nearly enough heated rhetoric about the damage this bill does to our human rights."
In what POSSIBLE way does this bill damage any human rights? Dear lord. It helps more people LIVE. It helps more people avoid bankruptcy. It helps more people get the care they need. It does not, in any way I can fathom, harm or damage human rights. That's just grossly over-heated propaganda.
"Because I am forced to provide proof of what medical insurance coverage I
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Health care is not a natural human right. No natural human right, upon the exercise thereof, takes away the natural human right of another.
Example: If I exercise my free speech, you are not deprived of any of your rights.
Example: If I have to give up some of my hard earned dollars in order for you to have health care, your entitlement has cost me my human right to retain what I have earned.
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Wow. You're really around the bend on this one.
Shrug. Let's see if you can back that up.
In what POSSIBLE way does this bill damage any human rights?
Um. In the many ways I've described, that you've not responded to. Are you not paying attention, at all? Let's go through the amendments. My human right to free association is clearly violated when I am forced to buy from a private insurer. My human right to be secure in my papers except for probable cause or warrant is obviously violated too, in the requirement to provide proof of insuance. My human rights to due process I've discussed. My rights to freedom
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It actually exempts anyone classified under 1402(g)(1). So, yes the Amish are included since they are the most well known. But if you want to file the paperwork and go through the process of getting your religious beliefs recognized, you too can be exempted from paying into Social Security, Medicare, or paying a penalty for
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It actually exempts anyone classified under 1402(g)(1).
Right.
But if you want to file the paperwork and go through the process of getting your religious beliefs recognized, you too can be exempted from paying into Social Security, Medicare, or paying a penalty for not proving that you carry health insurance.
That violates my rights under the 14th and 1st Amendments. If they cannot be forced to comply because of the First Amendment, then I cannot be required to jump through hoops to assert my similar right under the First Amendment.
Also, it's not about religious beliefs, but religious organizations: it further violates my freedom of religion AND of association to force me to belong to a certain religious organization, rather than just affirming that I don't want to participate because of my religious beli
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Your objections all sound valid. And compelling as they may be, can't all of the same arguments be made against Social Security and Medicare? Is there anything you find objectionable in this law that you don't already object to in those?
Not all of them can be made against those, no, but many of them. And yes, I do find them to be constitutionally objectionable, although because they have become a part of our nation's fabric, we can't just throw them out. We should work to phase them out over a long period of time, IMO.
That said, neither Medicare nor Social Security forces you to buy from a private company, and Medicare doesn't force you to participate at all (on the receiving end). So they are very different in those respects. They are
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nobody has been upset by this exact same sort of tax law being implemented countless times previous
Oh, and by the way, this is totally and completely wrong. In fact, many people are upset every time federal government tries to micromanage our lives and control us through the tax law. And I could make a very good argument that this, too, is unconstitutional, since it is not taxing us by our income as the constitution says, but taxing us for doing or not-doing other things apart from our income.
And frankly, no matter whether this is a tax penalty or tax credit, the bottom line is that you are being taxed
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Agreed, the mandate seems a pointless, roundabout, and illegal method. I would never defend it as constitutional, though I wouldn't be surprised if it was found to pass muster through extensive case law (not that I would agree with it in that case).
There is no case law recognizing or granting to the federal government the power to force everyone, just for being in the country, to buy a product ... or, in fact, to do anything at all (except to fill out the census, which IS explicitly mentioned in the Constitution).
My thought is simply that we should want to find a way to provide health care for everyone without violating the constitution. Instead we have the Republicans who think Capitalism is more important than people's lives
Not capitalism: liberty. Liberty or Death ... not words we just refer to from a quaint old time long gone. I don't see very many people putting capitalism before peoples' lives, and certainly not a majority of Republicans. For example, alm
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Of course, the main point -- and the main problem, other than constitutionality, of the Democratic bill -- is that actual COSTS have not been reduced by this bill. And I don't mean mere paperwork. I mean finding ways to make an x-ray not cost $500, and other insanities.
And I think that's where the whole thing can begin and end. Extending health insurance coverage should have been the last thing we did, if at all. We should have reformed our heath care before our insurance, then we wouldn't even need to have this debate.
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And I think that's where the whole thing can begin and end. Extending health insurance coverage should have been the last thing we did, if at all. We should have reformed our heath care before our insurance, then we wouldn't even need to have this debate.
Agreed 100%.
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There is no case law recognizing or granting to the federal government the power to force everyone, just for being in the country, to buy a product ...
Pudge,
A former work colleague recently directed my attention to the act "For Relief Of Sick And Disabled Seamen" [salon.com], passed by the 5th Congtress in July 1798, not even 11 years after Madison penned the Constitution. This act set up Marine hospitals, and financing for the program came from a mandatory 1% income tax, levied against all sailors. While this didn't apply to everyone, it seems noteworthy that it happened during John Adams' Presidency, and was again renewed/tweaked during Jefferson's turn at the
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Original Act:
http://www.scribd.com/doc/29099806/Act-for-the-Relief-of-Sick-DisabledSeamen-July-1798 [scribd.com]
Amended Act:
http://www.scribd.com/doc/29100111/Amending-an-Act-for-the-Relief-of-Sick-Disabled-Seamen-May-1802 [scribd.com]
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While this didn't apply to everyone, it seems noteworthy that it happened during John Adams' Presidency, and was again renewed/tweaked during Jefferson's turn at the helm.
Since it doesn't apply to everyone, it simply doesn't dispute my claim.
Why would these two men sign something into law that they (above all other people!) knew to be beyond Congress' enumerated powers?
Why did Adams sign the Sedition Act into law -- around the same time -- even though it clearly violated the First Amendment?
I am unfamiliar with the specific reasons for the act you refer to, but I am familiar with the reasons for the Sedition Act sufficiently to know that politicians don't always stand on constitutional principles now, or then.
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I wasn't looking to dispute *your* claim. I jumped into a conversation at a point that was apropos, but likely didn't do a good job of explaining the tangent I was directing towards.
These attorneys general are heading to SCOTUS to sue that this health care plan is unconstitutional. SCOTUS will consider case law, and I'm pretty certain this "Act... For Seamen" will be considered relevant. And given that the seamen healthcare act happened at a time in which the Constitutional Framers
(a) knew about it,
(b) h
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These attorneys general are heading to SCOTUS to sue that this health care plan is unconstitutional. SCOTUS will consider case law, and I'm pretty certain this "Act... For Seamen" will be considered relevant.
As it is not a mandate for all people, and it is merely a tax and not a mandate to take action (let alone to purchase anything from a private business), it's not a very compelling precedent. Further, I see no evidence it was ever challenged in court, so it's not a part of caselaw anyway.
... speaks a lot towards whether they felt it was constitutional or not.
Again, no, because the same thing holds true for the Sedition Act. (Although the Sedition Act was not renewed, as this was.)
Still, it's a very dissimilar act than the health insurance reform law, simply because it's not f
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Could you not say fairly that taxing the sailors was tantamount to forcing them to buy health insurance? As I've read it, it appears the sailors could not opt out. Yes they were public hospitals, but the sailors didn't necessarily ask for the hospitals, nor ask to be taxed in support of same. Your distinction between forced to buy from private seller vs. forced to by from the government seems trivial.
Also, from what I've read the hospitals were created as a consequence of this Act. (Some were explicitly
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Your distinction between forced to buy from private seller vs. forced to by from the government seems trivial.
It's not. It's extremely important and relevant, especially if we're talking about the right of association, the power of interstate commerce, and other issues that are specific to the fact that this is a private business we're talking about.
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Well, assuming that becoming a sailor was voluntary at the time, then nobody forced them to become a sailor and accept the tax.
This leaves out conscription, of course, which is a violation of human rights even before they are forced to pay for something they may or may not want.
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Yeah, conscription is obviously unconstitutional too. But it has happened often through the years. Evidence that what THEY did back then isn't necessarily what we go by today.
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If an individual chooses not to get insurance, he'll receive a letter from the IRS telling him that he owes a penalty. If he ignores that letter, they'll send him another. There is no criminal penalty and the IRS is not allowed to garnish wages or lien property or charge any additional fees if the fee in any given tax year is not paid.
I'd love to be "FORCED" to pay all of my taxes this way.
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If an individual chooses not to get insurance, he'll receive a letter from the IRS telling him that he owes a penalty. If he ignores that letter, they'll send him another. There is no criminal penalty and the IRS is not allowed to garnish wages or lien property or charge any additional fees if the fee in any given tax year is not paid.
I'd love to be "FORCED" to pay all of my taxes this way.
That is irrelevant to the argument. The penalty for violating a law is essentially independent of the law itself, in determining its constitutionality, unless it's a punishment-fits-the-crime case under equal protection, due process, cruel-and-unusual, etc.
The law says you are required to do it. That is what matters to the argument about being "forced," irrespective of the potential penalty.
Also, note that even if you're correct -- I've heard this stated, but I am not entirely sure how true it is, or what
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Oh I'm right :-) The Tax Foundation [taxfoundation.org] has this excerpt from the JCT's technical summary of the new law:
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Oh I'm right :-)
If you say so. ;-) I know they say it, but I don't know where in the law it says it is not subject to subtitle F, nor -- more importantly -- do I know if there's other ways to enforce it apart from subtitle F. I am willing to accept without seeing it that subtitle F doesn't apply, but it's the other part that I am completely unconvinced about.
(I have read in the law where it discusses subtitle F of the IRS code, but I don't understand tax law well enough to interpret it, and don't care to take the time to
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"Subtitle F--Shared Responsibility for Health Care" is the section of law you've been quoting from. You've been pasting subsection (a), the administration provision is subsection (g).
Just to be clear, Subtitle F, what I was referring to, what the Tax Foundation referred to, is Subtitle F of the Internal Revenue Code of 1986. What you're referring to now is Subtitle F of Title I of the "Patient Protection and Affordable Care Act." Also, technically, there is no subsection (g) of Subtitle F of Title I in the new Act. What this Subtitle -- "Shared Responsibility for Health Care" -- does is add to Subtitle D of the IRS Code, so we have Section 5000A(g) of Subtitle D of the IRS Code.
And y
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That's all the IRS does: send letters, garnish wages, lien property, and seize it if the lien fails. And of course they can change the law later -- and I really have no doubt that they will eventually give the IR