The Constitutional Issue In the ACA Case

I think Andrew Koppelman gets it in one paragraph:

The philosophy they relied upon, which Iíll call Tough Luck Libertarianism, holds that property rights are absolute and any redistribution to care for the sick violates those rights. If youíre sick, and you canít afford to pay for medical care with your own money, thatís your tough luck. The judgesí willingness to read this notion into the Constitution is very big news, dwarfing even the fate of the ACA, which is itself the most important social legislation in decades.

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    By that philosophy wouldn't they also (5.00 / 1) (#2)
    by ruffian on Wed Jun 27, 2012 at 03:49:09 PM EST
    have to strike down any rules or laws that oblige hospitals to take indigent patients?

    The Constitution may not say that we have to oblige ourselves to help the less fortunate, but I don't see where it says we can't if the democratically elected lawmakers pass such laws. Scalia's 'don't oblige yourself then' remark notwithstanding.

    Sounds to me like... (5.00 / 1) (#5)
    by kdog on Wed Jun 27, 2012 at 03:56:49 PM EST
    Scalia must believe the federal income tax is unconstitutional, by logical extension, just like Wesley Snipes.

    Wesley (5.00 / 1) (#12)
    by lentinel on Wed Jun 27, 2012 at 04:32:23 PM EST
    is in the can, and Bush and Cheney wander around free.

    Dr. Wesley Snipes. Honorary, (none / 0) (#6)
    by oculus on Wed Jun 27, 2012 at 04:21:04 PM EST
    SUNY Purchase, 2008.  

    Also - a bit of trivia (5.00 / 1) (#9)
    by jbindc on Wed Jun 27, 2012 at 04:23:34 PM EST
    Dated (for a long time in the 90's) the daughter of the couple who owned the Chinese restaurant on the corner of my parents neighborhood in a Detroit suburb.  His picture with the family was all over the restaurant.

    A 5 for you for (5.00 / 2) (#13)
    by BTAL on Wed Jun 27, 2012 at 04:32:53 PM EST
    making me think hard to follow that six degrees Kevin Bacon-esque connection.

    yes, koppelman's hallucinated strawman scalia (none / 0) (#25)
    by jpe on Wed Jun 27, 2012 at 07:39:51 PM EST
    thinks the income tax is unconstitutional.  

    Title of Prof. Koppelman's article (5.00 / 1) (#10)
    by oculus on Wed Jun 27, 2012 at 04:29:59 PM EST
    is misleading:  "Tough luck" becomes law.

    Call me a cockeyed optimist, but, if Justice Kennedy's vote is the keystone, I continue to hope, based solely on AZ law decision, he may come to his senses and vote to uphold the entire ACA.  

    And see Linda Greenhouse: (none / 0) (#18)
    by oculus on Wed Jun 27, 2012 at 05:18:17 PM EST
    It (5.00 / 1) (#11)
    by lentinel on Wed Jun 27, 2012 at 04:30:11 PM EST
    seems to me that if ACA is shot down, it will be because the mandate is considered unconstitutional by a majority on the Supreme Court.

    Obama once derided the concept of a mandate. He compared it to saying that we could cure homelessness by mandating that everyone be required to buy a home.

    I agreed with him on that.

    Obama also said, in one of his radio addresses, that any bill that he signed must contain a public option. That's what he said would "keep insurance companies honest".

    I agreed with that stance as well.

    Instead, he signed a bill that has a mandate, and no public option.

    If this bill were to shot down by the Court, it will be because it included this mandate. And as a precedent, it seems that Koppelman is implying, Social Security and Medicare could also be at risk.

    I'm not even sure how much this bill, if allowed to stand, will benefit the majority of people who need help. But if it does fall, it appears to me that it will fall because it has the mandate that Obama once ridiculed, and no public option that he had said he considered to be essential.

    I'm not against mandates per se ... (none / 0) (#16)
    by Robot Porter on Wed Jun 27, 2012 at 05:03:59 PM EST
    I would like to mandate the federal government give me full medical, psychiatric and dental.  And if they fail to do this, I can fine them.

    We really have things backwards.  Government and big business has turned us into serfs again, tugging at our forelocks as we beg for scraps off the master's table.

    Of course, we're really the masters, that's our table, and all the government officials including the President are our servants.


    "Second class citizens". (5.00 / 2) (#22)
    by lentinel on Wed Jun 27, 2012 at 06:55:53 PM EST
    Malcolm X once spoke about not identifying with being called an American citizen. The analogy he used was about being at a big table, being surrounded by people with their plates full. And here he is sitting at that table, with a few scraps on his plate - being asked to consider himself a diner.

    Actually (none / 0) (#17)
    by Ga6thDem on Wed Jun 27, 2012 at 05:10:50 PM EST
    what is more at risk are conservative things like vouchers, privatization etc.

    The mandate is a construct of Republicans (none / 0) (#36)
    by christinep on Wed Jun 27, 2012 at 09:26:30 PM EST
    and conservatives, including some of the Federalists.  So...now Obama is President and the people who liked the mandate earlier (see Romney) don't like it now.  Hmmmm.

    If (none / 0) (#43)
    by lentinel on Wed Jun 27, 2012 at 09:55:08 PM EST
    the mandate is a construct of Republicans, and Obama originally ridiculed it, more's the pity that he abandoned the public option and signed onto it.

    I never liked the mandate, and I still don't.


    Neither did I, lentinel; neither did I (none / 0) (#48)
    by christinep on Wed Jun 27, 2012 at 10:21:13 PM EST
    But, once the decision is made to work within the given structure (i.e., having insurance companies provide health insurance), the cost containment question more likely than not leads to near universal participation. That is why the projected loss of the mandate creates so much consternation among so many: Does it necessarily unravel the whole thing in terms of cost if it falls? I sure hope not.

    Actually, that is absolutely not true. (5.00 / 2) (#51)
    by dk on Wed Jun 27, 2012 at 10:27:26 PM EST
    The mandate does not lead to cost containment.  It only leads to guaranteed support of for-profit health care executive's wallets, and for causing people to either have junk insurance or insurance that is too costly for them.

    I recall that Kentucky & Washington (none / 0) (#57)
    by christinep on Wed Jun 27, 2012 at 11:02:27 PM EST
    had state programs that included mandates, which when removed, led directly to higher costs for consumers.

    Costs would increase, (5.00 / 1) (#59)
    by dk on Wed Jun 27, 2012 at 11:08:44 PM EST
    either directly or through reduced coverage, higher co-pays, etc. no matter what.  The mandates as constructed were, at best, a band aid to the problem, but actually have long term negative consequences as they postpone and distract us from actual solutions.

    Not that I am hoping for a decision tomorrow that restricts the federal government's ability to legislate.  But the ACA is on balance a bad bill and the loss of the mandate, from a policy perspective, should remain a goal of progressives.  As you yourself pointed out above, you support a Republican construct.


    I disagree (none / 0) (#62)
    by Ga6thDem on Thu Jun 28, 2012 at 06:52:42 AM EST
    to the extent that it increases the risk pool and includes people that won't use it as much. That being said, it only contains cost to a certain level .

    And people who rightly knew (none / 0) (#49)
    by dk on Wed Jun 27, 2012 at 10:25:17 PM EST
    the mandate was a bad idea because it is a construct of Republicans (see christinep) like it now...Hmmmmm.

    The mandate is a horible idea. (5.00 / 1) (#26)
    by redwolf on Wed Jun 27, 2012 at 08:00:19 PM EST
    It was a horrible idea when the GOP proposed it and it's a horrible idea when the Dems passed it.  Push universal healthcare or go home.  

    Butit is a constitutional idea (none / 0) (#30)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:00:06 PM EST
    What's Complicated about this? (5.00 / 1) (#46)
    by lobo58 on Wed Jun 27, 2012 at 10:11:58 PM EST
    The commerce clause states that Congress shall have the ability "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

    It's a huge stretch to imagine this to mean, "Oh, and compel every citizen to purchase a product whether they want to or not".

    Why is this difficult? If a law was passed that required everyone to purchase a handgun to defend the nation, you'd be okay with it? There is no authority for government to make anyone purchase anything, and we imagine such a power at our peril.

    If government can force us to purchase health insurance, using the commerce clause as a fig leaf, then there are no bounds to what government can make us do.

    Because there is another clause (5.00 / 1) (#47)
    by Big Tent Democrat on Wed Jun 27, 2012 at 10:15:08 PM EST
    in the Constitution known as the Necessary and Proper Clause.

    See McCulloch v. Maryland.


    As the government concedes... (none / 0) (#50)
    by citizenjeff on Wed Jun 27, 2012 at 10:26:07 PM EST
    ...the N&P clause doesn't give Congress limitless authority. Because the government failed to explain how its logic couldn't be applied to make us buy almost anything, I predict the Court will correctly rule the individual mandate is unconstitutional. We need Medicare for all. Should have been the plan from the beginning.

    See Gonzales v. Raich (none / 0) (#52)
    by Big Tent Democrat on Wed Jun 27, 2012 at 10:28:22 PM EST
    But will Kennedy really (none / 0) (#56)
    by dk on Wed Jun 27, 2012 at 10:58:19 PM EST
    come up with enough of a distinction from Gonzales v. Raich?  That's the real question for me (with the lesser question of whether Roberts will, though of course Roberts wasn't on the Court at that point).

    Scalia, of course, has no principles, so he definitely will.


    I saw it... (none / 0) (#58)
    by citizenjeff on Wed Jun 27, 2012 at 11:05:46 PM EST
    ...and it doesn't give Congress limitless authority. Moreover, it's not what the government is arguing. The government concedes it doesn't generally have the authority to compel purchases. It claims health insurance is special, because our participation in the health services market is inevitable. But our participation in other markets - such as the food, clothing, transportation, housing/shelter and energy markets - is also inevitable. In other words, the government is talking out of both sides of its mouth.

    Which, IIRC (none / 0) (#53)
    by lobo58 on Wed Jun 27, 2012 at 10:40:28 PM EST
    Enables Congress to create laws necessary to carry out their enumerated powers. Is "Any Damn Thing" an enumerated power?

    Under the commerce clause... (none / 0) (#63)
    by Sentenza on Thu Jun 28, 2012 at 03:39:04 PM EST
    the federal government can tell you that you can't grow your own wheat for your own use.

    The supreme court has also said that tomatoes are vegetables.


    The philosphy (none / 0) (#1)
    by Ga6thDem on Wed Jun 27, 2012 at 03:47:41 PM EST
    is pure third world.

    "Survival of the Fittest" (none / 0) (#3)
    by jbindc on Wed Jun 27, 2012 at 03:52:25 PM EST
    to read this notion into the Constitution (none / 0) (#4)
    by BTAL on Wed Jun 27, 2012 at 03:56:12 PM EST
    Those 7 words is where the argument comes apart.

    Bizarre (none / 0) (#7)
    by me only on Wed Jun 27, 2012 at 04:22:02 PM EST
    Later, he writes:

    If it is unjust to require anyone to subsidize anyone else, then even the graduated income tax (which, inconveniently, the 16th Amendment specifically authorizes) would have to go.

    I wonder if the Supreme Court ever ruled on the Constitutionality of the Income Tax prior to the 16th amendment.  I guess that would be too hard to look up.

    It did (3.50 / 2) (#8)
    by Big Tent Democrat on Wed Jun 27, 2012 at 04:23:30 PM EST

    A Dred Scott infamous decision.


    Tone deaf today (3.00 / 2) (#15)
    by me only on Wed Jun 27, 2012 at 04:51:10 PM EST
    Next time I'll add the sarcasm tag.  I thought I was over the top enough, but apparently not.

    The point is Koppelman knows about Pollock.  Well, I guess he might not, but that would make him utterly incompetent, as opposed to merely disingenuous.

    I can't wait until you argue that the government has the power to force people to be organ donors.  I mean, at that point they are dead and don't have rights or protections.  It is just the government acting in everyone's best interests, right?


    He knows about Pollock (none / 0) (#32)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:03:17 PM EST
    He also can read the Constitution:

    "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States"

    The Pollock Court seemed to miss that part of the Constitution.

    Sort of Koppleman's point.


    The issue was (none / 0) (#39)
    by me only on Wed Jun 27, 2012 at 09:44:01 PM EST
    No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

    SCOTUS decided that income tax on property was a direct tax.

    But you have never been one to go back to the Constitution.  If you believed that you would have agreed with the decisions in Heller and McDonald.  Even on the ACA you agree that Wickard is the basis for your argument.  Wickard is Dred Scott abomination.

    At least we both agreed that Breyer is a hack.


    Wrong in every particular (none / 0) (#41)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:48:03 PM EST
    Yes Pollock made the specious argument you restate. It belies the words of the Constitution itself. It was an absurd decision.

    Luckily, an Amendment was passed. But a later Court would have overturned it anyway.

    Where does the Constitution support Heller and McDonald? there are many arguments for them, but none are TEXTUAL arguments.  Please read the cases.

    Finally, my argument for the constitutionality of the mandate relies on Raich, Comstock, Carolena Products, and, oh yeah, McCulloch.

    What's the argument against the constitutionality rely on? Lochner.


    On Pollock (none / 0) (#44)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:56:19 PM EST
    the first Justice Harlan, as he most often was, got it right - link.

    The question of limitations doesn't negate (none / 0) (#37)
    by christinep on Wed Jun 27, 2012 at 09:31:32 PM EST
    the desireability nor constitutionality of a position.  Rather, what the powerful jurists have done in the past is find a set of factors that allow for a proposition and a set of factors that limit it.  It isn't about reductio ad absurdum (you can find that anywhere.)  What thoughtful jurists can & should define is a limitation principal so that the allowing of something that needs be isn't the automatic allowing of something down the road that need not be.

    Me paying an insurance company (none / 0) (#40)
    by me only on Wed Jun 27, 2012 at 09:47:11 PM EST
    need not be.  It is Crony Capitalism at best.  If the government wants to extend Medicare or Medicaid, that is perfectly within its power.  That a strong Democratic majority chickened out speaks volumes as to what they care about (getting re-elected).

    And, (none / 0) (#60)
    by NYShooter on Thu Jun 28, 2012 at 12:43:03 AM EST
    when you don't have that fear (getting elected) you get.....Scalia.

    Professor Koppelman, in the most (none / 0) (#14)
    by oculus on Wed Jun 27, 2012 at 04:37:43 PM EST
    "hits" article in Yale Law Review, sd. arguments the mandate is unconstitutional are "silly."  But that was in April 2011.  

    Bad News for Mall Robbers:  The Obvious Constitutionality of Health Care Reform

    It seemed to me, from (none / 0) (#19)
    by KeysDan on Wed Jun 27, 2012 at 05:47:38 PM EST
    the oral arguments,  that a discernment was implied between the government mandating purchase of insurance from a private source and the government mandating participation in a government program. If this is the case, it would appear to be supportive of Medicare--apparently based on the ability of the government to tax for the general welfare.

    As for the ACA mandate, it is more of a facilitative tool to obtain an effective insurance pool (e.g., there is no real penalty for not paying the penalty).  However, if the "mandate" falls it should not be fatal to the program; harder, yes, but creative participatory incentives could be deployed, either by Congress or by the individual states.  Scalia might even find the latter an acceptable approach to mandates, citing Jim Crow laws that mandated state and local de jure racial segregation in all public places.

    From the beginning (5.00 / 1) (#61)
    by NYShooter on Thu Jun 28, 2012 at 01:05:02 AM EST
    the Democrats did a lousy job of selling the program. To this day most people don't understand it. There are too many easily identifiable things to be against ("forced" to pay premiums) and not enough to be for (negotiated drug prices.)

    Leaving in the "against" items, and capitulating on the "for" ones, together with its complication, doomed it from the start.

    Again and again polls have shown that the public is for those programs the Republicans have convinced them they should be against. It's not that the democrats propose lousy programs, it's that they're lousy salesmen.


    Theoretically possible (none / 0) (#21)
    by BTAL on Wed Jun 27, 2012 at 06:36:27 PM EST
    but watch what happens to premiums if the other aspects required of the insurance companies.  People can complain all they want but their anger will be directed equally at the ins. cos and the govt/administration.

    Probably (none / 0) (#23)
    by Ga6thDem on Wed Jun 27, 2012 at 07:17:33 PM EST
    more at the insurance companies because most people don't even know what is in the ACA and if the mandate is overturned they are going to think that the whole thing is overturned. The things that the insurance companies don't like and will scream about  are the things that are popular with the public like the preexisting conditions clause.

    They (ins. companies) will (none / 0) (#38)
    by BTAL on Wed Jun 27, 2012 at 09:39:18 PM EST
    spend millions to advertise/educate the public why the ACA is forcing them to raise rates.

    The "no honor among thieves" mantra will be in full force with the administration stuck with the cr@ppy end of the stick.


    Your are right, but (none / 0) (#24)
    by KeysDan on Wed Jun 27, 2012 at 07:28:51 PM EST
    if the Court sabotages ACA by finding against the very soft mandate of the Act.  implementation may need to rely on effective regulation as well as positive-oriented incentives.  I know I am more optimistic than most on this point, but the ACA helps more than it hurts, especially given the options in the foreseeable future--despite new, but belated, Democratic voices for Medicare for all.  The irony of it all comes from Senator Ben Nelson (D., sort of, NE), who has indicated that Medicare for all would be something we will have to thing of if the Supreme Court rules against mandates.

    mandate (none / 0) (#20)
    by pyrrho on Wed Jun 27, 2012 at 06:33:12 PM EST
    I thought the issue was forcing people to pay for the service, not taxing to pay for it.


    Nope (none / 0) (#31)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:01:11 PM EST
    The issue is does the Commerce and Necessary and Proper power enable Congress to do it.

    This answer is undoubtedly yes.

    The SCOTUS' answer will be no.


    Huh? (none / 0) (#54)
    by lobo58 on Wed Jun 27, 2012 at 10:51:16 PM EST
    I'm afraid SCOTUS will rule yes, though the answer is undoubtedly no.

    If Congress has the authority to force everyone to purchase a product, it never ends. You're relying on the worn out assumption that given a power, it will not be used. It will be used. I wasn't kidding. A congress in the future could require everyone purchase a handgun, or an electric car, or two bicycles and a basket of carrots, or a bomb shelter. If you give government the power, it will be used, and not always as your ideology dictates.


    Spare us! (none / 0) (#27)
    by diogenes on Wed Jun 27, 2012 at 08:02:27 PM EST
    If Congress passed a law increasing taxes and spending the money to give free health care to all, no one would say that it was unconstitutional.  Why were all the Democrats so afraid of doing this obviously constitutional thing instead of raising money by an unconstitutional stealth tax called the "individual mandate"?  

    You say that now . . . (none / 0) (#29)
    by Big Tent Democrat on Wed Jun 27, 2012 at 08:59:40 PM EST
    There is a major hole in your (none / 0) (#35)
    by BTAL on Wed Jun 27, 2012 at 09:17:04 PM EST
    Wickard v Filburn theory.

    Well, with this Elihu Smails Court... (none / 0) (#28)
    by Dadler on Wed Jun 27, 2012 at 08:20:37 PM EST
    ...they really MAY decide to kill all the golfers.

    Seriously, when the SCOTUS serves up their ACA steak, let's just hope we can't see the marks where the jockey was hitting it.  

    That's the Caddyshack hat-trick.  It is finished.

    Andrew Koppelman is not to be taken seriously (none / 0) (#33)
    by citizenjeff on Wed Jun 27, 2012 at 09:04:01 PM EST
    ...except as a troublemaker. Shame on Big Tent for highlighting this emotionalist as if he has a good argument.

    In response to Scalia saying "the people were left to decide whether they want to buy insurance or not," Koppelman writes:

    This would mean that any federally required insurance scheme was unconstitutional. It would trash Medicare and Social Security.

    Except I don't think Scalia meant it's unconstitutional to tax us for it. He only meant that we can't be forced to buy it directly from an insurance company. So contrary to Koppelman's assertion, Scalia's logic would not trash Medicare and Social Security.

    I want Medicare for all, and it seems to me that the individual mandate is unconstitutional because it compels rather than regulates commerce. I could be wrong, but my opinion is obviously not based on a larger libertarian philosophy. Maybe it's time for supporters of the mandate to face what the argument actually is.

    Heh (none / 0) (#34)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:13:13 PM EST
    I love Koppleman. Tells it just like it is. No punch pulling ivory tower bs from him.

    Do you think... (none / 0) (#42)
    by citizenjeff on Wed Jun 27, 2012 at 09:54:38 PM EST
    ...Scalia meant that it's unconstitutional to tax us for insurance?

    Or is misrepresenting what Scalia meant an example of Koppelman's "no punch pulling ivory tower bs"?


    I think (none / 0) (#45)
    by Big Tent Democrat on Wed Jun 27, 2012 at 09:57:18 PM EST
    Scalia could easily rule that.

    I suppose... (none / 0) (#55)
    by citizenjeff on Wed Jun 27, 2012 at 10:57:49 PM EST
    ...that's pretty much what an Andrew Koppelman fan would say, rather than address my question.