The Future Of The Health Bill Mandate

A detailed analysis of the ridiculous decision by District Judge Henry Hudson (PDF) striking down the individual mandate would be superfluous as any honest and competent constitutional scholar knows that the decision is not even close to being in line with existing Supreme Court precedent, and it is certainly not the job of district court judges to ignore existing Supreme Court precedent. As Orin Kerr succinctly states:

The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

And if you decide that Chief Justice Marshall was wrong in McCollough v. Maryland, then you still have to overcome the express taxing power of the government. But, as I say, this is not an interesting discussion to me. More interesting is why the health bill did not instead include an auto enrollment feature instead of the mandate - much as what is used for Medicare, Social Security and unemployment insurance. The reason was that the Obama Administration wanted insurance industry buy-in into the health bill. The success of that venture is debatable at best.

And there will be no second bite at the apple legislatively, Pangloss Ezra Klein notwithstanding. No, the individual mandate will be saved by the Supreme Court. People are surprised by my prediction on this point, but I think it is due to their naivete about how courts function.

This Supreme Court will want to save the individual mandate - because that's what the insurance companies want. They'll write a lot of pretty words to salve the crazy Right on the issue but the result will be the mandate survives. Because that will serve the interests that the Supreme Court will want to serve- the insurance industry.

Speaking for me only

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    Bush v. Gore proved results oriented judging (5.00 / 2) (#1)
    by MKS on Mon Dec 13, 2010 at 07:04:34 PM EST
    at the Supreme Court.....

    Does this mean taxpayers can stop funding... (5.00 / 3) (#2)
    by pluege2 on Mon Dec 13, 2010 at 07:05:18 PM EST
    • outsourced military services like blackwater;
    • charter schools
    • prison contractors
    ...and a slew of other republican gimmicks to use taxpayer money to maintain and propagate the plutocracy?

    If so I like the ruling a lot!

    Even if you think the (5.00 / 1) (#3)
    by andgarden on Mon Dec 13, 2010 at 07:06:46 PM EST
    Commerce clause question is a close one (it isn't), you can't take Hudson's nonsense arguments on the taxing power seriously.

    If the issue weren't so serious (the 1930s taught us that we need a strong Commerce clause, folks) it would be funny.

    "Reasonable" people (5.00 / 1) (#4)
    by andgarden on Mon Dec 13, 2010 at 07:09:20 PM EST
    put the knife in:

    Larry Sabato, a professor of politics at the University of Virginia, said Hudson's ambition and devotion to Republican politics is well-known around the state--so much so that he's been repeatedly mentioned as a potential GOP candidate for Congress.

    "He's a conservative Republican and there's nothing unusual about his (health care) decision--it's completely predictable," said Sabato.

    "His name was bandied about repeatedly for Congress, for both the House and Senate back in the 80s and 90s," Sabato said. "I always remember him being identified with conservatives--never in line with the John Warner, moderate [GOP] faction."

    GOP Seeks to Hurry this Case (5.00 / 1) (#5)
    by ThereYouGoAgain on Mon Dec 13, 2010 at 08:35:22 PM EST
    Regarding strategy - It appears that VA AG Cuchinelli and the GOP want to fast track this ruling.  Why?  Because, Justice Kagan agreed to recuse herself on this during Senate confirmation and if the Supreme court splits 4-4 on a case then the lower court ruling is upheld.  Cuchinelli is trying to beat the other case (Michigan?), where the ACA was ruled constitutional, to the Supreme Court.

    Can Roberts, other conservatives choose which case (none / 0) (#7)
    by jawbone on Mon Dec 13, 2010 at 10:07:58 PM EST
    they get to take to decide this issue?

    Can Roberts fast track it?

    Activist judging seems to be the new Repub ideal, if done by Repub or like minded judges....


    flim-flam (5.00 / 1) (#8)
    by diogenes on Mon Dec 13, 2010 at 10:37:58 PM EST
    That's what they get for the cynical hypocrisy of passing a "steath tax" to finance the bill (i.e. making healthy people pay higher premiums than is actuarially sound) rather than openly and transparently raising taxes (whether to fund health care directly or to funnel tax money to insurance companies to pay for it).

    Health bill? (5.00 / 2) (#10)
    by TeresaInSnow2 on Mon Dec 13, 2010 at 11:43:29 PM EST
    Sorry, there's nothing healthy about the bill.

    Obama finally delivered on a campaign promise. (none / 0) (#9)
    by msobel on Mon Dec 13, 2010 at 11:16:57 PM EST
    He campaigned against the mandate.  He beat Hillary over the head with it countless times.  I assume this is one of his 11 dimensional chess moves and he got what he really wants.

    And for extra credit, it screws the Insurance Industry.

    Another perspective (none / 0) (#11)
    by jbindc on Tue Dec 14, 2010 at 09:43:46 AM EST
    I don't subscribe to the below perspective from Brooklyn Law's Jason Mazzone, but it does give a different insight into Hudson's use of the Necessary and Proper Clause:

    Though Judge Hudson doesn't mention it, his opinion hews closely to Scalia's concurring opinion in Gonzales v. Raich. There, Scalia provided what I think is a very helpful discussion (more helpful than the majority opinion in Raich did) for why, in light of Lopez and Morrison, Congress could use its commerce clause power to prohibit cultivation and possession of marijuana for personal use. Scalia explains in his opinion that Congress can reach activities that substantially affect interstate commerce--Lopez's third category--not by using the commerce clause alone but only with the necessary and proper clause. In addition, Scalia says, that same clause allows Congress to regulate intrastate non-economic activities if the regulation of them is a necessary part of a more general regulation of interstate commerce. . . .

    Scalia's opinion in Raich on the scope of the necessary and proper clause refers throughout to the regulation of activity: he uses the word 42 times. Activity is the key to understanding Judge Hudson's opinion in Virginia v. Sebelius.

    Judge Hudson doesn't deny that Congress has power to regulate the interstate health and insurance markets. He also doesn't dispute that (consistent with McCulloch) the necessary and proper clause allows Congress to regulate those markets by means that are not themselves regulations of interstate commerce. However, in Judge Hudson's view, the necessary and proper clause doesn't allow Congress to regulate inactivity as a means to effectuate a regulation of interstate commerce. On my reading of Judge Hudson's opinion, the commerce clause is a power to regulate an interstate commercial activity, the necessary and proper clause gives Congress leeway to regulate intrastate activities in order to achieve that end, but regulation of inactivity is, categorically, not a reasonable means to attain a legitimate end under the commerce clause. "The constitutional viability of the Minimum Essential Coverage Provision," he says, "turns on whether or not a person's decision to refuse to purchase health care insurance is . . . an activity."

    Whose argument is this? (none / 0) (#12)
    by RonK Seattle on Tue Dec 14, 2010 at 11:11:58 AM EST
    From the ruling:
    If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

    Curious. Did Cuchinelli present this line of argument, to which Hudson assents? Or does it enter the conversation purely as an invention of judge-advocate Hudson?

    Cucinelli (none / 0) (#13)
    by jbindc on Tue Dec 14, 2010 at 11:39:38 AM EST
    plus various amici briefs.  The idea of economic "inactivity" is one of the two main arguemtns.

    Not that argument. (none / 0) (#30)
    by RonK Seattle on Tue Dec 14, 2010 at 03:37:20 PM EST
    Not "activity" vs "inactivity".

    The claim that the Necessary and Proper clause extends no farther than the bounds of the Commerce clause.


    WOW (none / 0) (#14)
    by DaveCal on Tue Dec 14, 2010 at 01:26:38 PM EST
    Is there ANYTHING remotely resembling objectivity in this post?

    "...as any honest and competent constitutional scholar knows that the decision is not even close to being in line with existing Supreme Court precedent..."

    So those who brought the case, the judge, all those who submitted amicus briefs, and everyone who agrees that the mandate is unconstitutional are Dishonest and/or Incompetent?

    No room for any opinion but yours, eh?   Enjoy your echo chanmber fellas.

    If the federal government can force you to purchase a product or service from a private party (such as health insurance), then we've lost all freedom.  God help you if the government starts being run by those who have a much different political viewpoint from yours.  It'll drive you crazy.  

    Existing Supreme Court precedent? (5.00 / 1) (#32)
    by Big Tent Democrat on Tue Dec 14, 2010 at 03:49:03 PM EST
    No HONEST and informed person would argue with my statement.

    You can disagree with existing Supreme Court precedent, but you can not deny that it says what it says, unless of course, you are a dishonest extreme judicial activist.


    I hear that... (none / 0) (#15)
    by kdog on Tue Dec 14, 2010 at 02:01:03 PM EST
    if they can make you buy health insurance, what is to stop them from making you have a bank account, or a 401k, or any number of crooked services we supposedly can't function without?

    The legalese of the arguments fly over this layman's head...but that talking point from the right plays very well with the proles who have grown to fear government. Those that think the mandate is good and just might want to address it, in laymens terms.  Explain why forcing Joe Blow into bed with a crooked slimey health insurance company serves Joe Blow and the common good, or else don't be surprised when the right scores the populist points here.

    As for the commerce clause, again I don't understand it...but I do know it was used to legally justify the tyranny that is marijuana prohibition...not exactly a heart-warming precedent for the clause.


    Sarcasm? (none / 0) (#16)
    by DaveCal on Tue Dec 14, 2010 at 02:21:01 PM EST
    So those who opppose it as an unlawful extension of government power are dummies being duped by the slimy right wing politicians?  They can't think for themselves?

    Regardless of how you feel about health care and health insurance, whether its good policy or terrible policy, do you really not see any liberty issue in this case?  

    IMO This case has nothing to do with health care.  It's all about government power.  

    Under the ObamaCare precedent (if it is upheld) there is nothing the federal government couldn't mandate.  You may think its good policy with respect to health insurance.  I guess I'm more pro-choice.  

    Over my lifetime I am going to have to eat.  How I spend those food dollars, evern if I do so solely on an intra-state basis, has some effect on interstate commerce.  So can the feds mandate how, where and on what I spend my food dollars?

    If the congress turns sharply right, and decides that in the interest of national security (without question an enumerated power) everyone should own handguns and ammo, can they mandate that we all purchase guns?  

    NEVER in the history of this great country has the federal government mandated that every citizen purchase a particular product or service.  God help us all if starts now.


    FWIW (none / 0) (#17)
    by CST on Tue Dec 14, 2010 at 02:25:35 PM EST
    I'm pretty sure kdog was not being sarcastic.

    No one's "forcing" you to buy anything.

    Think of it like a tax credit.  People get tax credits for all sorts of things.  If you buy those things you get a credit, if not, you pay more in taxes.  That is congress "deciding how you spend your money".  It may be framed differently, but it's the same principal and same result.

    No one is going to jail over this.


    We hope... (5.00 / 1) (#18)
    by kdog on Tue Dec 14, 2010 at 02:37:09 PM EST
    no one will go to jail over it.  Me thinks it makes little difference if they call it a tax or a fine, if you don't pay it you could get caged up for failure to pay a fine or tax evasion.

    And you're right, no sarcasm...one of my biggest fears is a cashless society, and a federal law requiring citizens to have a bank account would likely be one of the steps towards that dystopia.


    Actually, the Act is forcing me... (none / 0) (#19)
    by DaveCal on Tue Dec 14, 2010 at 02:48:13 PM EST
    It mandates that I purchase a certain health insurance policy.  

    You're focusing on the penalty/punishment if I refuse, and using it as a justisfication of sorts.

    It's not a tax or tax credit.  It's a mandate to purchase a particular product.

    Are you going to be ok with the next law that mandates that you own and carry a handgun?  How about a requirement that you purchase certain types of food that the Government determines is good for you (maybe even justifying it by claiming that it cuts healthcare costs)?  How about mandating that you dress a certain way, say purchasing and wearing a certain uniform, maybe as a way to tell citizens apart from possible terrorists.  

    It's all about liberty, and freeedom of choice.  

    And what happens when the next mandate is something YOU don't agree with personally?  


    than (none / 0) (#20)
    by CST on Tue Dec 14, 2010 at 03:01:03 PM EST
    I'll pay more taxes/fine whatever.

    End of story.

    It's a mandate in the form of a tax.


    So this is a tax increase (none / 0) (#25)
    by coast on Tue Dec 14, 2010 at 03:25:55 PM EST
    on those who do not currently have coverage, correct?

    it's a tax increase (none / 0) (#29)
    by CST on Tue Dec 14, 2010 at 03:33:12 PM EST
    on those who do not have coverage the day the mandate goes into effect.  That's not quite the same thing - as, in theory, there will be subsidies and other things available that are not available today.

    But yes, the mandate is a tax increase.


    Turn it around (none / 0) (#22)
    by jbindc on Tue Dec 14, 2010 at 03:08:11 PM EST
    If you don't purchase some kind of insurance, or have the cash to pay, you shall not partake of any health care services, no matter the reason.

    No pay - no play.

    There's your freedom of choice.


    Huh ?? (none / 0) (#21)
    by ScottW714 on Tue Dec 14, 2010 at 03:04:14 PM EST
    "NEVER in the history of this great country has the federal government mandated that every citizen purchase a particular product or service.  God help us all if starts now."

    This is dumb on like six levels.  The federal government doesn't make you own part of the Military or the Interstate system ?  By taxing everyone, you are essentially forced to by whatever Congress deems to their budget.

    Plus, it might not be the Feds, but since every state requires auto insurance, it might as well be the Fed, what is the difference ?  It's excepted president and anyone that doesn't have it can be fined and do jail time if it's a re-occurrence.

    What about Social Security, the same, they know you are going to get old, just as you are going to need Health Care.  By forcing people to 'buy' it, you eliminate the ditto heads that think they will never need it, from suffering in poverty, be it financial of health care poverty.

    Sure terms like smaller government and freedom sound great, but they are practically non-exitant in America, or any other non-third world country.  What are you really free from ?  I have to pay taxes to a government that tells me what I can and cannot do, even if effect no one by myself.

    And yes, you are being duped into thinking that the mandate is any different than any other tax you are forced to pay.  You are mandated to pay taxes, to contribute to Medicare & Social Security.  And if you break the taxes portion down, you are mandated to pay for a war, pave roads, buy many more weapons than we will every use or need, you are mandated to pay for everything the Federal government buys and/or provides service for.

    God forbid you are mandated into paying for your own health.


    I'm fine... (none / 0) (#23)
    by kdog on Tue Dec 14, 2010 at 03:13:55 PM EST
    paying my own way for health care...my concern is being forced to pay for some CEO's yacht while I pay my own way.  

    A mandate without a public option available to all seems far too much like a reverse robin hood corporate welfare subsidy scam.

    But leaving the debate of whether it is even a good idea or not aside for a moment, does a limited government even have the right?  The brainiacs saying "it's settled" reminds me of a parent saying "because I said so"....color me unconvinced and skeptical.


    Hence, (none / 0) (#24)
    by jbindc on Tue Dec 14, 2010 at 03:22:46 PM EST
    The many court challenges.

    i mean (none / 0) (#26)
    by CST on Tue Dec 14, 2010 at 03:28:23 PM EST
    it's a tax.  Really, that's all it is.  So the question of "does the government have the right" feels... weird.  Of course the government can tax you.

    No one is actually forcing you to buy insurance.

    Whether it's a reverse robin hood corporate welfare subsidy scan or not.  I mean, the government already does that a lot - farm subsidies, oil subsidies, tarp, etc... etc...  So I can see where it's a policy argument.  I don't see where it's a legal argument.


    Yeah but... (none / 0) (#31)
    by kdog on Tue Dec 14, 2010 at 03:43:39 PM EST
    those scams are a bit different...the standard scam is we're forced to pay our taxes, and then the state goes and takes care of Con-Agra and Exxon and all the big money with with our collective little money.  The mandate is forcing us to do business with the health insurance company direct, and if we don't pay a penalty/tax...that is unprecedented.

    ... it's the same in the end (none / 0) (#33)
    by CST on Tue Dec 14, 2010 at 03:59:28 PM EST
    at least this way you know what you're getting for it.  And you're actually getting something for it.

    Or think of it like a tax credit that you don't get anymore.  I get a tax credit for the interest on my student loans.  If you don't have student loans, you don't get that tax credit and you are paying more because you didn't "do business" with sallie mae or whoever.  Same goes for the home-buyer credit, etc... etc...  I am paying higher taxes this year than someone who makes the same amount as me - but they "did business" with a realtor.

    It's functionally the same.


    I see what you're saying... (none / 0) (#34)
    by kdog on Tue Dec 14, 2010 at 05:00:51 PM EST
    For people who play the deduction game it is of little consequence, something they are used to, another line on the 1040. It's all greek to me as a 1040-EZ "just tell me what I owe, don't make me read the loophole manual or hire an accountant" guy.

    BTW, that's the problem, we know what we're buying this time...half-arse protection against serious illness and a percentage of the CEO's yacht.  At least with general income taxation we can delude ourselves:)


    Kdog (5.00 / 1) (#35)
    by ScottW714 on Wed Dec 15, 2010 at 11:01:14 AM EST
    Limited government, is that in the Constitution ?
    Maybe I missed the limited government Amendment.

    Do you think this war hasn't bought a couple of yachts for CEO's.  How about heavy machinery builders who proved the Fed with equipment to build damns, tunnels, and the Space Shuttle ?  

    Whats you point ?  I suspect every company the Federal Government does any meaningful business with has some fat cats making a nice profit from your your/our tax dollars.

    I'm not arguing whether it's right or wrong, just simply pointing out the fact that insurance is no different than any other business the Fed does business with.

    And unlike the other businesses, it is a necessity to get all enrolled.  You simply cannot allow people to opt out if you are going to require insurance to take people with preexisting conditions.

    There is no gray area, either you allow all to opt-out and give up the pre-existing rejections, or you don't.  Because having both would allow people to opt-out until they become ill, which would lead to only sick people getting insurance at healthy people's rate.  The industry (which I despise) would collapse, and then we would back to the turn of the century in which only people who can afford care would receive it, which in this day and age would mean wealthy or near wealthy people would be the only ones who could afford care for the expensive and common ailments like cancer.

    Believe me, the insurance fat cats are right behind bankers and fund managers in my book of evils.  What we should be spending our energy on is regulation and quit debating the obvious.


    It may just be semantics... (none / 0) (#36)
    by kdog on Wed Dec 15, 2010 at 11:48:17 AM EST
    but I see a difference between being forced to pay taxes to the government, who in turn spends it in ways that enrich grifters, and being forced to do business with the grifters direct, without the middle man, or face a fine or tax increase or whatever you wanna call the penalty.

    You're kidding right? (none / 0) (#38)
    by DaveCal on Wed Dec 15, 2010 at 12:48:04 PM EST
    You don't see limited government in the constitution?  

    Good God, go read it again.

    The whole construct of the Constitution is "limited government".  The Constitution grants to the federal government only certain limited powers that are expressly enumerated in that document.

    And if that's not enough for you, re-read again the Tenth Amendment:

    "The powers not delegated to the United States by the Constitution... are reserved to the States respectively, or to the people."

    So the Federal Government has ONLY those specific powers the Constitution expressly gives it, and anything NOT given to the Federal Government is reserved to the states and the people.  


    Oh the blessed forgotten Tenth... (none / 0) (#39)
    by kdog on Wed Dec 15, 2010 at 12:55:38 PM EST
    do you feel like any "powers" have been reserved for you Dave? lol

    I fear the pro-mandaters are totally discounting the unintended consequences/precedent the mandate could bring about...I really hope our fears are unfounded and we're not having our paychecks mandated direct deposited into our mandated BofA account...then the experiment is really over, finished, done....if it isn't already.  But me thinks people are so desperate for a some kind of solution to the health care cost and availability problem they've got blinders on to the risk here.


    Limited Government (none / 0) (#40)
    by coast on Wed Dec 15, 2010 at 01:51:48 PM EST
    Apparently ScottW714 is of the same school as a congressman from my state who stated "How about show me where in the Constitution it prohibits the federal government from doing this?" when asked about the mandate.  Its cool though, he wasn't that far up the food chain, only the third-ranking Democrat in the House James Clyburn.

    What is this limited government you speak of? (none / 0) (#28)
    by republicratitarian on Tue Dec 14, 2010 at 03:32:15 PM EST
    Except (none / 0) (#27)
    by coast on Tue Dec 14, 2010 at 03:28:52 PM EST
    in none of the examples provided are you (or any individual) required to enter into a contract with a private company.

    and you called MY post dumb? (none / 0) (#37)
    by DaveCal on Wed Dec 15, 2010 at 12:36:14 PM EST
    First, it is NOT a tax.  

    If they want to tax everyone to pay for a federal health program, they can do that (if they get the votes).  They wouldn't have had the votes to pass that scheme in this ACT, so they did an end run to forced this garbage through.  

    Social security is a tax and was properly implemented.  Whether I like it or not.  But I would prefer not to pay into it.  I can and do save for my own retirement.  I don't need the government mandating it.  Frankly, I likely won't receive any SS benefits anyway.  Certainly not what I paid in.  Thanks for mandating I share my wealth though.  

    You want to see this health insurance mandate as similar to a tax, or you think it's ok because you agree with the policy, fine.  But not me.  And please don't call me dumb because I refuse to give in as easily as you to government control of my life.  

    What are you going to do when the Federal Government Mandates that you buy something that you DON'T agree with.  When the Republican congress requires that you purchase a hand gun, or tells you what food you must purchase, or what job you must hold?  

    Go re-read Orwell's 1984.  

    And it's not the same as auto insurance.  That's done by the state government (different constitution).  It's only required if you drive on state roadways.  You can choose not to drive.  You can choose to drive only on your own private property.  And in many states you can avoid the insurance requirement if you show proof of ability to pay for damage you cause to others.

    Why don't you compare it to life insurance?  I didn't have it for many years (didn't need it since I didn't have others relying on me).  Now I choose to carry it (so my family can go on without my income if I die).  Do I want the Government to mandate that I carry Life Insurance? Hell no.  If someone dies without life insurance, and the family goes on public assistance, the public's paying.  So the same silly argument can be used to mandate life insurance.  Or, frankly, lots of other things.  

    Just because you've resigned yourself to a life at government direction with no control or freedom, doesn't mean the rest of us have to give up and give in.

    And I do pay for my own health.  I neither need, nor want, the government's help in that regard.  I can do it on my own thank you very much.  This act isn't for my benefit.  it's using my money to pay for other peoples' benefits.  

    Welcome to your social utopia.  Don't come crying to me when the government revokes your gin ration.  


    Congratulations! (none / 0) (#41)
    by jbindc on Wed Dec 15, 2010 at 02:02:43 PM EST
    You can pay for your own medical care!

    We should all be so lucky!


    umm (none / 0) (#42)
    by CST on Wed Dec 15, 2010 at 04:14:42 PM EST
    you are aware it IS in fact, a tax.

    What else do you call it when you pay the IRS?  You are aware it is the IRS who will be collecting this money.

    You may not want your money to pay for welfare, or health insurance, or whatever.  But that doesn't make it illegal for them to take your money for those things.

    You are not being forced to do anything but pay the federal government.  If you don't want to buy insurance, you just pay the feds more.  

    Nothing is being "rationed" here but your money.  Just like with all taxes...

    Again, if the feds told me to buy something I don't want, or pay more to the IRS, I would pay more to the IRS.  It's not that complicated.  And it's certainly not George Orwell.  I believe the penalty there for "non compliance" was torture and death.