Tony, Tony, Tony

Thanks to everybody for their predictions on the SCOTUS ruling on health care reform. I hope that those who said 7-2, 9-0, etc. are right, but I can’t find anyone in establishment media who doesn’t think it will be 5-4 one way or the other. Nearly everything I read says “this will come down to Justice Kennedy” (here; here; here).

Our friends at Reason have gone all in against the constitutionality of ACA, with three of the top five articles arguing that ACA should be struck down (the other two of the five are pieces by John Stossel and Ed Morissey so you can see what a nonpartisan place it has become). Many of the conservatives at Kaplan Daily — George Will, Charles Lane, Krauthammer — have written that they think ACA is unconstitutional.

American health care is the best in the world and doesn’t need fixing. If it does need fixing, it just needs the power of the free market. If it needs something beyond the power of the free market, it needs something other than what Democrats are proposing. And if what Democrats are proposing gets passed, then it’s unconstitutional.

There is no issue you can’t do this with.

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116 replies
  1. 1
    cleek says:

    Waterloo, baby. it’s all about the Waterloo.

  2. 2
    theconstituent says:

    What is “constitutional” has no doubt changed over time, and there are legitimate arguments about what the founders might have intended, but the fact of that matter is that if the ACA is unconstitutional, then no one has to let black people eat in the front part of his restaurant. It really is that simple.

  3. 3
    Dave says:

    I found the Charles Fried/Hatch interaction interesting. Fried saying the ACA mandate is definitely constitutional and Hatch saying that, while recognizing Fried is a very learned scholar, he has it ALL wrong…without explaining why.

    Because Fried is right. He pointed out that the government does indeed penalize inaction. Take jury duty. The government tells me I have be on a jury in US District Court. I choose not to (inaction). Here’s the result:

    28 U.S.C. § 1866(g): Any person summoned for jury service who fails to appear as directed shall be ordered by the district court to appear forthwith and show cause for his failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $100 or imprisoned not more than three days, or both.

    Really? A fine? What does that sound like?

  4. 4
    Loneoak says:

    @theconstituent:

    no one has to let black people eat in the front part of his restaurant. It really is that simple.

    Or, even more important, use a doctor’s office.

  5. 5
    Violet says:

    All these uprisings across northern Africa and the Middle East? Pay attention rich people. America won’t sit on the sidelines forever. This is what happens when people suffer.

  6. 6
    rickstersherpa says:

    I post this link to this story on Angry Bear as a reminder about what an inhuman system we currently still have and how these lickspittles want to make it worse. There is a dog who is part of this tragedy, which given the nature of this blog, will amplify the tragedy.

    http://www.angrybearblog.com/2.....ealth.html

  7. 7
    The Dangerman says:

    @cleek:

    Waterloo, baby. it’s all about the Waterloo.

    That’s an Olivia Newton John song, isn’t it?

  8. 8

    Via the Twitter-Tubes:

    Sen. Bill Nelson: “we all know the Supreme Court is going to decide the constitutionality of this… why not sooner than later?”

    I don’t know what that meant, if Nelson is proposing something or what. But in light of the fact that the makeup of SCOTUS could change in either direction in the next few years, I wonder why Nelson is even saying this. Is he thinking Obama won’t win re-election in 2012?

  9. 9
    Davis X. Machina says:

    @Violet: The level of immiseration required to replicate what we see in Cairo and Alexandria hasn’t even been approached yet.

    Forecast: Fat, dumb and happy, for the foreseeable future.

    Remember that scapegoat, not chicken, is America’s favorite white meat, and the GOP is the KFC of scapegoat — they produce it in astronomical quantities, just the way people want it, and at just the right price point.

  10. 10
  11. 11
    Bulworth says:

    Our friends at Reason have gone all in against the constitutionality of ACA, with three of the top five articles arguing that ACA should be struck down (the other two of the five are pieces by John Stossel and Ed Morissey so you can see what a nonpartisan place it has become).

    You mean, two of the top five aren’t writing about the unconstitutionality of HCR? Reason is really falling down on the job.

  12. 12
    freelancer says:

    American health care is the best in the world and doesn’t need fixing. If it does need fixing, it just needs the power of the free market. If it needs something beyond the power of the free market, it needs something other than what Democrats are proposing. And if what Democrats are proposing gets passed, then it’s unconstitutional.
    __
    There is no issue you can’t do this with.

    This is the best thing I’ve read on the front page all year.

  13. 13
    Culture of Truth says:

    Just read an opinion where a federal sex offender registration law was upheld because, as far as I can tell, sex offenders might travel interstate.

  14. 14
    stuckinred says:

    @Buck: ABBA my dyin ass. Stonewall Jackson you puppies!

  15. 15
    Shalimar says:

    As one of the people who thinks 7-2 is the most likely outcome, I still agree with everyone who thinks it comes down to Kennedy. I believe Roberts and Scalia will vote to uphold, but only if they aren’t the deciding vote. And I think they will be trying to convince Kennedy to overturn it until he finally makes a decision. I just can’t believe he wants destroying all that Commerce Clause precedent to be his legacy.

  16. 16
    Ash Can says:

    Our friends at Reason have gone all in against the constitutionality of ACA

    Of course they have. They’re the original Government-Can’t-Do-Anything-Right (TM) people. If the government sets up a major program that benefits a large number of citizens, it blows their entire raison-d’etre sky-high. They’re hand-in-hand with the GOP on this.

  17. 17
    stuckinred says:

    Waterloo Waterloo where will you meet your Waterloo
    Every puppy has his day everybody has to pay everybody has to meet his Waterloo

    Now ol’ Adam was the first in history with an apple he was tempted and deceived
    Just for spite the devil made him take a bite
    And that’s where ol’ Adam met his Waterloo
    Waterloo Waterloo…

    Little General Napoleon of France tried to conquer the world but lost his pants
    Met defeat known as Bonaparte’s reterat and that’s where Napoleon met his Waterloo
    Waterloo Waterloo…

    Now a feller who’s darling proved untrue took her life but he lost his too
    Now he swings where the little birdie sings
    And that’s where Tom Dooley met his Waterloo
    Waterloo Waterloo…

  18. 18
    Elvis Elvisberg says:

    If it does need fixing, it just needs the power of the free market. If it needs something beyond the power of the free market, it needs something other than what Democrats are proposing. And if what Democrats are proposing gets passed, then it’s unconstitutional.

    I came across this old Steve Martin op-ed recently, which reminds me quite a bit of Megan McArdle’s style of argumentation.

    So if you’re asking me did Iraq have weapons of mass destruction, I’m saying, well, it all depends on what you mean by ”have.”

    See, I can ”have” something without actually having it. I can ”have” a cold, but I don’t own the cold, nor do I harbor it. Really, when you think about it, the cold has me, or even more precisely, the cold has passed through me. Plus, the word ”have” has the complicated letter ”v” in it. It seems that so many words with the letter ”v” are words that are difficult to use and spell. Like ”verisimilitude.” And ”envelope.”

    Therefore, when you ask me, ”Did Iraq have weapons of mass destruction,” I frankly don’t know what you’re talking about. Do you mean currently? Then why did you say ”did?” Think about ”did.” What the heck does that mean? Say it a few times out loud. Sounds silly. I’m beginning to think it’s just the media’s effort to use a fancy palindrome, rather than ask a pertinent question.

    But yeah, this is the mode of libertarian argumentation. “I don’t like it, therefore it’s not merely unwise, it’s impossible, and it’s unconstitutional.” That’s certainly the idea behind Richard Epstein’s effort to change the meaning of the Takings Clause. But you know, there are plenty of things out there that I don’t like– Ben Rothliesberger not being in jail, for example– that aren’t compelled by the Constitution.

  19. 19
    Violet says:

    @Ash Can:

    They’re the original Government-Can’t-Do-Anything-Right™ people.

    It has always puzzled me how they believe government can’t do anything right, yet revere the military. What’s more government-run than the military?

  20. 20
    Culture of Truth says:

    I’ll say 5-4 in favor, just because.

  21. 21
    Buck says:

    @Violet:

    What’s more government-run than the military?

    Give it time. It’ll change too.

  22. 22
    Balconesfault says:

    but I can’t find anyone in establishment media who doesn’t think it will be 5-4 really gives a shit one way or the other whether HCR will help anyone, but would love to milk this story for every by-line they can get for the next 24 months or so

  23. 23
    BGinCHI says:

    This is made clear by yesterday’s pathetic troll, who came here and made the stunning argument that “if the Federal Gov’t can make you buy HC, then there is literally no end to what they can make you buy.”

    There is just so little logic to it, unless you just don’t know any history, or facts, or have your paranoia reined in by reality.

    How about this: “If the Federal Gov’t can make highways and interstates across the whole nation, what limits anything else they want to do?”

  24. 24
    Paul in KY says:

    @stuckinred: That was a good one! How about the ‘ooga chacka’ song by Blue Suede? That one will take you back.

  25. 25
    Ash Can says:

    @Violet: In all fairness, there are libertarians who are anti-war and have a distinctly jaundiced view of military spending. Strangely enough, though, they don’t seem to have much pull in the movement.

  26. 26
    Buck says:

    @stuckinred: Kewl. Toss in some disco lights and multi-colored European clothing and you’d have a hit on your hands! (hehehe)

  27. 27
    Balconesfault says:

    @Ash Can: In all fairness, there are libertarians who are anti-war and have a distinctly jaundiced view of military spending.

    And there are conservatives honest enough to admit that any country which tries to maintain a global military presence by necessity requires a huge amount of federal intervention into the economy. They get hidden in the closet when the Tea Party comes to town.

  28. 28
    Dennis SGMM says:

    @BGinCHI:
    The Selective Service Act of 1948 is still in effect. If the government can conscript you for military service…

  29. 29
    cleek says:

    @Violet:
    many teabaggers think that’s what teabagging is all about.

  30. 30
    Cris says:

    @Violet: It has always puzzled me how they believe government can’t do anything right, yet revere the military. What’s more government-run than the military?

    The military is always the exception. We’re against wasteful government spending, but defense spending must increase. Government never created a single job, no of course I’m not talking about our brave men and women in uniform.

  31. 31
    Violet says:

    @Balconesfault:
    Really? Where are those conservatives?

  32. 32
    fasteddie9318 says:

    OT: CNN, a few minutes ago, reported on the results of a study at the U of Maryland asking participants how they would reduce the deficit. By party, Republicans reduced it by an average of 53%, Democrats 79%, independents 81%. According to the CNN reporter, Democrats reduced the deficit by “a bit more” than Republicans, but “the big cuts” were made by independents. I honestly think I hate CNN more than Fox on some level.

  33. 33
    BGinCHI says:

    @Dennis SGMM: How about raising the drinking age in every state to 21?

    They did that through coercion: WI was threatened with a cutoff of highway money. Funny thing is now they’d probably just shrug and let it go.

  34. 34
    cleek says:

    @BGinCHI:
    and what’s the rebuttal to that?

    i’ve never heard one that holds water, frankly.

  35. 35
    Ailuridae says:

    @BGinCHI:

    How about this: “If the Federal Gov’t can make highways and interstates across the whole nation, what limits anything else they want to do?”

    I’m tired of the tyranny of the Interstate Highway System. Wait, the Eisenhower is the reason I can buy bags of frozen produce for a dollar a bad in Chicago in February? Really?

    Well, still it is tyrannical. I have to blow up 90/94 when it passes under Chicago Avenue at some point

  36. 36
    stuckinred says:

    @Paul in KY: Which, of course, was a rip of Runnin Bear by Johnny Preston

  37. 37
    stuckinred says:

    @BGinCHI: Speed limit too.

  38. 38
    BGinCHI says:

    @cleek: To dismantle America, as a United States.

    It’s that fucking simple.

    These are the biggest hypocritical, stupid assholes ever. Even the Confeds had more going for them. Like cool facial hair. And some good songs.

  39. 39
    Ailuridae says:

    @cleek:

    My Dad is one of the conservatives who went off the ranch with the Interstate Highway System. He would talk about the redundancy of 1-87 with NY RTE 9 (They basically ran parallel with the former avoiding town centers and the latter not) But everywhere we ever went, even if it were on RTE 9) we got to from the interstate.

    Why? In my Dad’s words: we get there faster. Dumbass

  40. 40
    david mizner says:

    Would Kagan have to recuse herself?

  41. 41
    Paul in KY says:

    @stuckinred: Had never heard that Johnny Preston song. Thank you for the link.

  42. 42
    El Cid says:

    __

    American health care is the best in the world and doesn’t need fixing. If it does need fixing, it just needs the power of the free market. If it needs something beyond the power of the free market, it needs something other than what Democrats are proposing. And if what Democrats are proposing gets passed, then it’s unconstitutional.

    Does the “Al Gore is fat and has a big house” apply in this case as well?

  43. 43
    El Cid says:

    @david mizner: First she needs to go hunting with a friend who shoots an old lawyer in the face and see how that works out.

  44. 44
    Dennis SGMM says:

    @david mizner:

    Would Kagan have to recuse herself?

    Ha! If every Supreme recused themselves from cases from which they should there would be many more 4-1, 5-0, etc., decisions.

  45. 45
    catclub says:

    @Shalimar:
    I really hope for this too, but I do not see why, if they decide to call the ACA unconstitutional, they won’t also pull a Bush Vs Gore, and say that all the commerce clause justifications for Social Security and medicare still apply,
    but we are still throwing out the ACA.

  46. 46
    Zifnab says:

    @Violet:

    It has always puzzled me how they believe government can’t do anything right, yet revere the military. What’s more government-run than the military?

    The Republicans run on “Democrats can’t do anything right” and use Democrats and “the government” interchangeably. It’s still impossibly hard to find Republicans who will agree that Bush Jr did anything wrong for the eight years he was in office. Reagen is a god-damn saint. And if you ask about Bush Sr, the first (and likely only) answer you’ll get is “he raised taxes”.

    The way Republicans enjoy the same kind of incumbency protection that their Democrat peers experience, it’s hard to find any evidence that Republicans genuinely don’t believe in government. Otherwise, states like Arizona and Mississippi would be way more anarchist and less police state.

  47. 47
    cleek says:

    @BGinCHI:
    sorry. guess i wasn’t clear.

    what’s the rebuttal to the assertion that if the govt can force you to buy insurance that it can force you to buy anything ?

  48. 48
    kansi says:

    @david mizner:

    Would Kagan have to recuse herself?

    Not until Scalia comes out with his list of reasons why a Justice should ever need to recuse.

  49. 49
    catclub says:

    @BGinCHI: I mostly agreed with that statement, independent of the ‘if ACA is ruled ok, then’ part.

    I think there is almost nothing the government cannot, in principle do. The real constraint is the consent of the governed. Hence, all the bad things that are proposed could happen, but only if they are already popular. Representatives who have to be woreied about re-election would not do all those bad things if they are also unpopular.

    The constitution may eventually protect minority rights, but it takes a while – consider the internment of Japanese-American CITIZENS.

  50. 50
    Joey Maloney says:

    @theconstituent:

    if the ACA is unconstitutional, then no one has to let black people eat in the front part of his restaurant. It really is that simple.

    Your ideas are intriguing to Rand Paul and he wishes to subscribe to your newsletter.

  51. 51
    Poopyman says:

    @stuckinred: I remember that! Mostly because, as a five-year-old, the idea of running bare was hilarious.

  52. 52
    Dennis SGMM says:

    @cleek:
    As I understand it, the gov isn’t forcing anyone to buy health insurance. People can simply pay a penalty as an alternative.

  53. 53
    eemom says:

    I can’t find anyone in establishment media who doesn’t think it will be 5-4 one way or the other. Nearly everything I read says “this will come down to Justice Kennedy” (here; here; here).

    Well! If everybody in the emmessemm says its, that certainly clears a few things up.

    1. You’re totally RIGHT with your 5-4.

    2. Everyone else who bets on Kennedy as the kingmaker is totally RIGHT too.

    3. I’m totally WRONG to say this is a moronic exercise in gumflappery.

    Here, you’ll love this article on the subject today from today’s WaPo. It’s right at your intellectual reading level on this issue.
    http://www.washingtonpost.com/.....id=topnews

    Note the implication that ALL “legal experts” have reached consensus that the law might be struck down, when the article identifies not one who actually says that, and otherwise references as an “expert” only one known right-wing hack who is actively working on the side of the plaintiffs.

  54. 54
    FormerSwingVoter says:

    This is made clear by yesterday’s pathetic troll, who came here and made the stunning argument that “if the Federal Gov’t can make you buy HC, then there is literally no end to what they can make you buy.”

    In a way he’s right – but you can make that argument about anything. The federal government can do anything they can pass through Congress in regards to defense, commerce, taxing, or spending, and it’d be Constitutional.

    But that’s why we have elections. Congress could pass a 110% income tax or vote to bomb Antarctica with our entire nuclear arsenal and it’d be completely Constitutional. The check/balance here would be that any party doing so would never see office again.

    There’s an implicit part of his argument, too, that’s inherently silly. It goes something like “if you guys are allowed to pass legislation I don’t like, what’s to prevent conservatives from passing things you don’t like?” It’s as if 2001-2008 never happened. If someone’s understanding of the Constitution varies depending on who’s in charge, they’re clearly wrong.

  55. 55
    BGinCHI says:

    @cleek: There doesn’t need to be one. It’s a paranoid fantasy. The alternative, and I’m not kidding, is….well…..limited government through, um, elections and laws. Which is exactly what we have.

    This is another, typical example of where the right wants no gov’t except all the benefits of gov’t.

    It’s EXACTLY like a teenager who lives at home and wants no restrictions but expects the laundry to get done, food to be prepared, and won’t pay rent or make any contribution.

    Bring back Civics.

  56. 56
    FormerSwingVoter says:

    @cleek:

    what’s the rebuttal to the assertion that if the govt can force you to buy insurance that it can force you to buy anything ?

    There isn’t one, really. Except that the argument itself is phrased wrong. The government isn’t forcing you to buy insurance – it’s forcing you to pay more in taxes if you don’t. They already “force” people to get mortgages, install solar panels, have children, save for retirement, go to college, and so on in the exact same fashion.

    Do you feel like you’re forced to have children by the government?

  57. 57
    El Cid says:

    @Joey Maloney:

    …if the ACA is unconstitutional, then no one has to let black people eat in the front part of his restaurant.

    This would not exactly be a counter-argument for most of our nation’s conservatives, especially not for our most patriotic neo-Confederate conservatives in the South and Southwest.

  58. 58
    kay says:

    @cleek:

    Because they’re not forcing you to buy insurance. They’re assessing a penalty for access two the (2) federally-funded guarantees of the US health care system without a promise of payment.

    The two guarantees are: access to a emergency care and guaranteed issue of a health insurance policy no matter your physical condition. Those things have measurable value, and each and every person “by being alive!” (as conservatives scream, has them.

    We don’t guarantee access to broccolli, or a car. We do (or will) guarantee access to those two things.

  59. 59
    JPK says:

    Slightly OT, and maybe somebody here already did something about this and I missed it, but I ran across this story yesterday and it has chilled me through:

    http://thelipstickchronicles.t.....of-us.html

    Direct consequences for not having health insurance in today’s America.

  60. 60
    Dennis SGMM says:

    @FormerSwingVoter:

    If someone’s understanding of the Constitution varies depending on who’s in charge, they’re clearly wrong.

    The Republicans’ reverence for the Constitution is unswerving. When they’re in power they revere it because it says that everything that they do is constitutional. When they’re out of power they revere it because it says that everything the Democrats do is unconstitutional.

  61. 61
    gbear says:

    @FormerSwingVoter:

    Do you feel like you’re forced to have children by the government?

    That argument was in the last thread about the republican redefinition of rape.

  62. 62
    Tsulagi says:

    There is no issue you can’t do this with.

    It’s Brawndo Math 101.

  63. 63
    Marmot says:

    Dang it! I’d meant to keep up with all the predictions as they happened.

    But more important, is anyone placing odds on SCOTUS outcomes? Say, 3:1 on a Supreme vote of 5-4 in favor of constitutionality?

  64. 64
    kay says:

    @FormerSwingVoter:

    Except that the argument itself is phrased wrong.

    But it sure caught on. A lawyer quoted in the WaPo this morning took it still further: they can force you to eat broccoli :)

    Except for all those other pesky constitutional provisions that would bar that.

    The judges that looked at this as a penalty for not guaranteeing payment of two guaranteed (although not immediate or assured) benefits ruled the law was constitutional. The other two went off on flights of fancy and thought experiments.

    The question is the whole thing.

  65. 65
    Barb (formerly Gex) says:

    @Davis X. Machina: With the added benefit of a psychologically induced delayed reaction due to skin pigmentation factors.

  66. 66
    kay says:

    @cleek:

    Try it the other way. What (other) product or service can you get without payment or a promise of payment of some kind?
    A food stamp is a voucher, and credit is a promise to pay,so broccoli’s out.

  67. 67
    Barb (formerly Gex) says:

    @fasteddie9318: Wow. I interpret this as for a guaranteed good outcome, go with the Dems. It could get better with some Rep input, but if too much Rep input, it will be worse than the Dem options. Safest bet? Don’t let Republicans or Independents (lest you get Republicans in disguise) work on deficit reduction.

  68. 68
    cleek says:

    @kay:

    Because they’re not forcing you to buy insurance

    semantics. they are coercing under the threat of a fine. if you don’t already have one, you must purchase a product from the list of approved products, or pay a penalty.

    @FormerSwingVoter:

    The government isn’t forcing you to buy insurance – it’s forcing you to pay more in taxes if you don’t.

    it’s not a tax, it’s a fine. if it was a tax, we’d be having a different discussion.

    They already “force” people to get mortgages, install solar panels, have children, save for retirement, go to college, and so on in the exact same fashion.

    no, they don’t. the govt doesn’t issue a fine, with the associated penalties for non-payment if you don’t buy a house. a tax credit for choosing to buy something optional is not the opposite of receiving a fine for not buying something mandated.

  69. 69
    JRon says:

    It was constitutional in 1798, when insurance was required of all sailors. Of course, many of our justices are “originalists,” or “strict constitutionalists,” which means they are comfortable ignoring precedent to come up with their own ideas of the founders’ intent.

    Of course, that law was written and signed by the founders themselves, so it’s finally clear that “originalist” just means they’ll rule however the hell they want without considering precedent or past law.

  70. 70
    JRon says:

    @Buck:

    Give it time, it’ll change too.

    True. I’ve definitely noticed the GOP reveres the military a whole lot more now that they’ve figured out how to make huge profits with privatizing it.

  71. 71

    […] at Balloon Juice writes the following: American “X” is the best in the world and doesn’t need fixing. If “X” […]

  72. 72
    gnomedad says:

    @Ash Can:

    In all fairness, there are libertarians who are anti-war and have a distinctly jaundiced view of military spending.

    I’m waiting to see a “libertarian” vote for someone other than the one who promises the biggest tax cut based on another “liberty” issue.

  73. 73
    gnomedad says:

    @cleek:

    it’s not a tax, it’s a fine. if it was a tax, we’d be having a different discussion.

    I’ve thought about this. I wish this had manifested as a “personal responsibility tax credit” for purchasing insurance instead.

  74. 74
    cleek says:

    @kay:

    What (other) product or service can you get without payment or a promise of payment of some kind?

    lot’s of things (Linux, for example). but that wasn’t the question.

    the question is: if the government can force/coerce/require you to purchase product A, can it also require you to buy product B, C or D ?

    (and if not, why not ?)

    seems to me the answer is ‘yes, it can’.

    i don’t actually mind, since i agree with @BGinCHI that the limit is what the voters will tolerate. but in principle, it seems obvious that we have agreed that the govt can force/require/coerce us to buy a specific product – and that’s something we haven’t seen before.

  75. 75
    walt says:

    @cleek: As other commenters have said here, the fed gov’t isn’t forcing a person to purchase a health insurance policy, but is assesing a tax increase if you don’t.

    For the sake of discussion, even if it the gov’t did mandate citizens to purchase health insurance policies it would probably be contested in the federal court system to determine if this requirement ,in this instance, is a “… Law necessary and proper for carrying into Execution the forgoing powers…” including the power of Congress “…to lay and collect taxes, excises etc….to promote the general welfare…” and the Commerce clause. So the whole inference that if the feds can force you to buy health insurance they can force you to buy anything doesn’t hold a lot of water with me. After all, conscription is seen as a “necessary and proper” law that Congress can use “To raise and support an army…” Congress still hasn’t forced people to become Census workers, postal workers or any other federal agency.

    As catclub at post 49 said IRT the consent of the governed
    , “…fixing the Standards of weights and measures” is another delegated power of Congress and we all know how well the American public took to the metric system 30 years ago when the feds promoted that. I think if Congress ,feeling tall from having Americans purchase health insurance, started mandating purchases of airline tickets,consumer goods or whatever else, the American public “throw the bums out.”

  76. 76
    Barb (formerly Gex) says:

    @cleek: Isn’t the situation more like this: They do not forcibly make you purchase anything. They fine you if you fail to purchase something.

    There is a difference, unless we are using the libertarian definition of force where having to pay in to society is just like being physically forced to do something, no option to say no, by the government.

  77. 77
    Brachiator says:

    Thanks to everybody for their predictions on the SCOTUS ruling on health care reform. I hope that those who said 7-2, 9-0, etc. are right, but I can’t find anyone in establishment media who doesn’t think it will be 5-4 one way or the other. Nearly everything I read says “this will come down to Justice Kennedy”

    This is kinda like Fantasy League Supreme Court. Absolutely meaningless, but loads of fun.

  78. 78
    catclub says:

    @cleek: “govt can force/require/coerce us to buy a specific product – and that’s something we haven’t seen before. ”

    Except for the militia act of 1792 and its successors, you are right, we have NEVER seen this before.

  79. 79
    kay says:

    @cleek:

    semantics. they are coercing under the threat of a fine. if you don’t already have one, you must purchase a product from the list of approved products, or pay a penalty.

    I think the whole tax/penalty argument is based on semantics. Have your read the opinions? There are pages devoted to tax versus penalty. The Florida judge seized on the fact that the Senate bill (draft) used “tax” which was changed to “penalty”. Aha! Proof it’s not a tax. Of course, I could argue that the fact that they used “tax” and then “penalty” means it’s MORE like a tax, not less. That’s semantics.
    You’ve adopted the argument on conservative terms, which is fine, but it isn’t any more “right” or correct than the question the two judges who upheld the law relied on. You won’t accept a different question.
    And no one has been able to give me an example of a private sector product or service where the federal government guarantees access, regardless of payment or promise to pay. The judge in Michigan says that has value, that the guarantee itself has value, because that’s exactly the guarantee that those who choose not to purchase health insurance and instead pay the penalty are relying on.

  80. 80
    cleek says:

    @Barb (formerly Gex):

    There is a difference, unless we are using the libertarian definition of force where having to pay in to society is just like being physically forced to do something, no option to say no, by the government.

    well, i’m not trying to play libertarian a word game.

    i am not physically forced to pay speeding tickets (a common fine, as non-compliance with the mandate will likely be). but if i don’t pay my speeding tickets, i might just find myself with a suspended license, increased financial penalties, an impounded car, arrest, etc.. the threat of those penalties exert a “force” of sorts on how we behave. call it coercion, call it intimidation, call it what you will. either way, the name given to whatever it is that the government uses to compel us to act one way or another is not the issue. the fact that we are, in fact, compelled to act one way is.

  81. 81
    Citizen_X says:

    @cleek: Another semantic problem with your (and the conservatives’) “threat of a fine” wording is that there is no criminal sanction attached to this tax/penalty/fine; no felony, misdemeanor, not even a ticket. That’s not true of the requirement to have insurance if you’re operating an auto, nor was it true of the militia act. So there’s no risk of the jack-booted government thugs busting down your doors for not buying your health insurance.

    (There is if you don’t pay the tax penalty, but that’s true of all taxes.)

    Edit: your example at 79 only highlights the contrast: the cops aren’t going to give you a ticket at the emergency ward.

  82. 82
    Paul in KY says:

    @cleek: Can the government force a man to buy an IUD? Can it force sighted people to buy braille books?

  83. 83
    kay says:

    @cleek:

    I don’t know how the case comes out, but conservatives are painting themselves into a real corner with this. Uncompensated medical costs are real. They’re billions of dollars. The DOJ documented this elaborately, and the two conservative judges spent a lot of time hand-waving, because, after all, that’s not their problem. Conservatives can’t raise taxes, and they can’t put forth any public solution to a private sector problem.
    They’ve demonized, framed and excluded every single rational solution that anyone has put up, and “buying across state lines” and tort reform doesn’t solve any of it. They’re going to have to get the government completely out of health care. They don’t have any room for anything else.

  84. 84
    Violet says:

    @gnomedad:

    I’ve thought about this. I wish this had manifested as a “personal responsibility tax credit” for purchasing insurance instead.

    That would have been better, except most people still get their health insurance through their employer (if they have it). So a “personal responsibility tax credit” would set up a have/have not scenario where people with jobs would be “responsible” when they got health insurance as a benefit from their employer. And people who didn’t have work would be “irresponsible” until they bought it on their own.

    Now if that could also be accompanied by a breakdown on every employees pay stub showing just how much their employer chips in for their health insurance AND how much of a tax break or tax incentive the employer gets for offering the health insurance, that might be different.

    People need to know what the real cost of health insurance is. Right now if people have it through work they think the real cost to them is the amount they deducted out of their paycheck each month for it. It’s not.

  85. 85
    Barb (formerly Gex) says:

    @cleek: Again, you can opt out of owning a car. We do not allow the healthcare system to opt out of treating you if you don’t have insurance. These are qualitative differences that you want to put in the same rubric.

    Unless you are arguing against government entirely. I kind of think that these differences are germane.

    This is not being proposed as a response to you, but to the general problem is the way the issue is framed: I suppose the flip side could be to require proof of insurance or ability to pay before any emergency services, or any health care services, can be used. It makes it much more clear that people are asking for something for nothing that way. Not that it would keep the right from claiming that is some violation of the constitution as well.

  86. 86
    cleek says:

    @kay:

    Of course, I could argue that the fact that they used “tax” and then “penalty” means it’s MORE like a tax, not less.

    but what matters is what the law actually says: it’s a penalty. it’s not a tax.

    You’ve adopted the argument on conservative terms

    careful there. i asked the question about this because i haven’t seen an argument that convinced me. just because i’m asking the same question doesn’t mean we have the same motivation for asking. it’s more of an academic point for me, but it’s one lots of people claim to have the answer to. but they’ve failed to persuade me.

    And no one has been able to give me an example of a private sector product or service where the federal government guarantees access, regardless of payment or promise to pay.

    food? if you’re too poor to afford it yourself, the govt will give you money to buy it. ditto rent. ditto food for infants. ditto health care for seniors. etc.. ?

  87. 87
    cleek says:

    @Citizen_X:
    yes. that does make a difference. i wonder how long that will last, though?

    it seems like the kind of thing that’s ripe for a “get tough on deadbeats” attack.

  88. 88
    cleek says:

    @Barb (formerly Gex):

    Again, you can opt out of owning a car. We do not allow the healthcare system to opt out of treating you if you don’t have insurance. These are qualitative differences that you want to put in the same rubric.

    ok. but were getting kinda far from the question i was trying to get answered: if the govt can require to buy X, why can’t it require to you buy Y ?

    people keep answering that question by explaining the benefits and theory behind ACA. but that’s the answer to a different question.

    so, maybe i should just accept that the answer is “yes, they can. but we don’t care. besides: voters have a say in it.” which is fine, because that’s what i think. i was just wondering if there was some kind of logical/legal/Constitutional explanation to the contrary.

  89. 89
    BGinCHI says:

    @cleek: Stalin had millions of his people killed. Therefore the gov’t can do amazingly extreme things.

    The difference between this and ACA is the definition of our constitutional republic. Our system is made of checks and balances and the rule of law.

    What stupid GOPs don’t realize is there is no GUARANTEE this stuff can’t get out of hand, but that the process impedes it. That IS government.

  90. 90
    Joel says:

    State governments already force people to buy auto insurance if they own a car.

  91. 91
    Marmot says:

    @cleek: OK, here’s my opinion: “yes, they can. but we don’t care. besides: voters have a say in it.”

    Seriously. The gov’t’s done it before and has the right to do it now. Precedent: That sailors’ insurance law back in the late 1798. Constitutional basis: The Commerce Clause. I don’t get the reluctance to simply say it.

  92. 92
    Brachiator says:

    @Joel:

    State governments already force people to buy auto insurance if they own a car.

    You are not forced to buy a car.

  93. 93
    burnspbesq says:

    192 years of case law says ACA is clearly constitutional.

    Anyone who asserts that it isn’t is making an argument about what the law should be, while lying about what the law is.

    Someone else said it the other day, but it bears repeating. If you submitted either of the district court opinions holding ACA unconstitutional as your answer to an exam question in con law, you would fail.

  94. 94
    FormerSwingVoter says:

    @cleek:

    it’s not a tax, it’s a fine. if it was a tax, we’d be having a different discussion.

    I’d disagree with this based on its implementation. To determine whether or not you owe, you enter your Health Insurer on your tax return in April. If you don’t have one, your tax liability goes up $600, either increasing the check you write to the IRS or reducing the refund you get from them. It goes to the same place, is filled out on the same form, and is part of the same payment. It’s generally called a “tax penalty”, so I would interpret the use of the word “penalty” to be a shortening of that, based on its implementation (likely an intentional one, so that Republicans wouldn’t think to call it a “tax on the uninsured”).

    If it were implemented by police writing you a ticket, the “fine” distinction might strike me as more persuasive. But it’s not implemented in the ways that a fine is and is never called a fine.

    This is largely a matter of semantics, but for right now lets assume that it is, in fact, a fine instead of a tax, and therefore not included within the governments ability to tax. In that case, what we’ve got is a law that spends money on the general welfare as well as regulating interstate commerce (which from a legal standpoint, has nearly always been determined to include intrastate commerce that has some vague, broader effect on interstate commerce). Since these are enumerated powers under the Constitution, the federal government is allowed to make any requirements in a law that are Necessary and Proper to the fulfillment and/or enforcement of that law, much like Washington’s Militia Act in 1792 required citizens to buy muskets since it was considered necessary to the raising of armies and the formation of militias.

    Shorter me: if it’s a tax, it’s Constitutional based on the Taxing and Spending clause, and if not, then it still is Constitutional based on the Necessary and Proper Clause combined with the General Welfare and/or Commerce Clauses.

    You can argue that it’s a bad idea, but it’s Constitutional.

  95. 95
    burnspbesq says:

    @BGinCHI:

    This is made clear by yesterday’s pathetic troll, who came here and made the stunning argument that “if the Federal Gov’t can make you buy HC, then there is literally no end to what they can make you buy.”

    That’s actually a pretty sound guess at what Thomas’ dissenting opinion will look like.

  96. 96
    Mike Lamb says:

    @cleek: Because other provisions in the Constitution would limit the gov’t ability in this regard? Or the Commerce Clause doesn’t provide the backstop for forcing other purchases?

    There is no doubt that the gov’t could require other purchases or require other activities. You cannot, however, just make a blanket statement as to all products or scenarios.

  97. 97
    Tsulagi says:

    @cleek:

    but what matters is what the law actually says: it’s a penalty. it’s not a tax.

    It’s a penalty. No, it’s a tax. A penalty…tax…penalty…

    At one stage crafting the ACA legislation it was a tax. Rs jumped on that: The Democrats will increase taxes! Always afraid of that charge, Ds changed it to penalty arguing it was not a tax. In fact the guy who signed ACA said

    “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”
    __
    When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

    However, after ACA became law the admin and DOJ claim it is really a tax. Because as a tax it’s much easier to defend in court. We’ll see if the Dems got a little too cute with their language.

  98. 98
    Howlin Wolfe says:

    @The Dangerman: Could it be ABBA?

  99. 99
    Brachiator says:

    @kay:

    I think the whole tax/penalty argument is based on semantics.

    Why are Balloon Juice posters ignoring the precedent setting elephant in the room, Massachusetts health care? Am I missing something here? Or do people just enjoy gnashing and wailing?

    The Massachusetts plan includes a mandate which has passed court challenges.

    Here’s the nuts and bolts:

    The Massachusetts health care insurance reform law, enacted in 2006, mandates that nearly every resident of Massachusetts obtain a state-government-regulated minimum level of healthcare insurance coverage and provides free health care insurance for residents earning less than 150% of the federal poverty level (FPL) who are not eligible for Mass Health (Medicaid)….
    __
    The law established an independent public authority, the Commonwealth Health Insurance Connector Authority, also known as the Health Connector. Among other roles, the Connector acts as an insurance broker to offer private insurance plans to residents….
    __
    The reform legislation also included tax penalties for failing to obtain an insurance plan. Massachusetts tax filers who failed to enroll in a health insurance plan which was deemed affordable for them lost the $219 personal exemption on their income tax. Beginning in 2008, penalties increased by monthly increments.

    And what happened when the law was challenged?

    A legal challenge, Fountas v. Dormitzer (Docket No. 2008-121) was filed in Essex Superior Court contesting the fine imposed for a failure to get health insurance as well as the fine imposed for a failure to provide information on a tax return as to whether one has health insurance….

    The people making the challenge have lost every court case, including appeals to the state supreme court.

    Of course, we don’t know what the US Supreme Court might do, but there is a body of law which defends government sponsored health care in this country.

  100. 100
    FormerSwingVoter says:

    @cleek:

    ok. but were getting kinda far from the question i was trying to get answered: if the govt can require to buy X, why can’t it require to you buy Y ?

    Er, sorry, I may have gone off on a tangent there. Back on topic.

    Assuming that a tax credit and a tax penalty are treated differently under the law, there are two possible arguments.

    The first is that they can, in fact, require you to buy anything. Congress could increase the income tax to 100%, as there’s nothing in the Constitution to forbid such a thing. But terrible ideas are not necessarily unconstitutional.

    The second, more restrictive argument (and therefore more likely to sway Justice Kennedy) is that hospitals are required to give care to everyone regardless of their ability to pay, meaning that hospitals and insurers must increase costs for everyone else. Not buying insurance will directly result in higher prices for everyone else, since everyone participates in the health care market at some point. Therefore, health insurance purchases have a significant impact on interstate commerce. If you don’t buy broccoli, it only affects you; if you don’t buy health insurance, it affects everyone. Therefore, health insurance is subject to the Commerce Clause where other products and services (like individual food items) would not be.

  101. 101
    FormerSwingVoter says:

    @Brachiator:

    Why are Balloon Juice posters ignoring the precedent setting elephant in the room, Massachusetts health care? Am I missing something here? Or do people just enjoy gnashing and wailing?

    My instinct is that, in many cases, Constitutional limitations on what the Federal government can do does not necessarily apply to the States. That may or may not be the case in this instance.

  102. 102
    Stillwater says:

    but I can’t find anyone in establishment media who doesn’t think it will be 5-4 one way or the other.

    The same establishment media types who were absolutely certain we’d find WMD in Iraq?

    There just front running a narrative, hoping that political will, rather than 9 people’s interpretation of the law, decides the issue.

  103. 103
    Barb (formerly Gex) says:

    @FormerSwingVoter: I.E. that qualitative difference between optional goods and non-optional goods with externalities.

  104. 104
    Brachiator says:

    @FormerSwingVoter:

    My instinct is that, in many cases, Constitutional limitations on what the Federal government can do does not necessarily apply to the States. That may or may not be the case in this instance.

    Fair point. But while instinct is interesting, citations of actual cases would be a lot more useful in any discussion.

  105. 105
    Maude says:

    The post title, isn’t the original, Judy, Judy, Judy? Carey Grant?

  106. 106
    TooManyJens says:

    @cleek:

    if the govt can require to buy X, why can’t it require to you buy Y ?

    I believe it’s because it is necessary to have all people either buy insurance or pay a [penalty|tax|uncompensated care fee|whatever] in order to make it possible for health insurance to be available to all. You have to make the pool as big as possible if you’re going to force insurers to take everybody, including people with preexisting conditions. Otherwise, the whole concept of insurance breaks down. So the mandate falls under the “necessary and proper” clause.

    IANAL though.

  107. 107
    NR says:

    If the mandate is ruled to be constitutional, it’ll set one hell of an awful precedent. If it’s okay to rule out a single-payer system and force people to purchase insurance from private, for-profit companies, then what will be the next mandate? Scrapping Social Security and forcing us all to purchase 401k plans? Or the dismantling of the public education system and forcing everyone to send their kids to for-profit charter schools?

    One thing is for sure–the same court that gave us Citizens United will cheerfully uphold the mandate, given how it facilitates a massive transfer of wealth from citizens to private corporations.

  108. 108
  109. 109
    Mnemosyne says:

    @cleek:

    food? if you’re too poor to afford it yourself, the govt will give you money to buy it. ditto rent. ditto food for infants. ditto health care for seniors. etc.. ?

    But all of that is based on the assumption that you have paid taxes in the past (as seniors have) or will pay taxes in the future (as those small children will). There’s not an explicit, “You have to pay back X dollars,” but there is the assumption for the under-65s that the payment is temporary and they will pay it back through their taxes once they get back on their feet.

    That’s why the government can sue you if you fail to pay your child support and your kids end up on welfare — you’re cheating the government out of money that belongs to it because they gave money to your kids and it needs to be paid back.

  110. 110
    Bill Murray says:

    @Maude: or is it Tony! Toni! Toné!

    and what happens when one gets sick without insurance — does such a person have to pay and papick an insurance plan, or do they pay and go on the exchanges that are to be set up?

  111. 111
    Maude says:

    @Cris:
    I saw the movie. It was some dort of joke a long time ago and that’s what I think this was.

    @Bill Murray:
    Heh

  112. 112
    Davis X. Machina says:

    @NR: Only it doesn’t rule single payer out, or make it illegal, or whatever. It stipulates what coverage a state’s plan must provide — and that could be a complete NHS-ization of that state’s health care system, come to that — to an acceptable substitute for the mandate system. VT is scoping this out right now.

    Private and public schools co-exist side by side on that basis today — provide x, y, and z, and you may compete with our public schools.

    Medicaid and Medicare already give a mixed-provision nature to the present system.

  113. 113
    Ruckus says:

    @cleek:
    They don’t force you in that you don’t have to have kids or buy a house or even get married, but there is a tax difference if you don’t do those things. You pay a higher tax by not having those deductions.
    What is the difference? Semantics? Because that’s the only difference that I can see. If I don’t buy health insurance I pay a higher tax. And better yet if I can’t afford it I will have it paid for me.
    Wait. Let’s see, if I have kids I can’t afford then I can get food stamps, schip, welfare.
    In CA I get a tax credit for being a renter instead of buying a house.
    I don’t see a difference. None, Nada, Keiner, ingen,ни один

  114. 114
    Pococurante says:

    Why isn’t DougJ not writing about something that someone on the internet cares about?

    http://xkcd.com/386/

    And yes, this is now my standard response to every DougJ front post.

  115. 115
    A Writer At Balloon-Juice says:

    @Maude:

    No, a 90s r&b band from Oaktown.

  116. 116
    argh says:

    I pay cash for my health care needs. I know many working-class and middle-class people who do the same. Why is that incomprehensible in all these endless health care discourses?

    Insurance is not at all essential to getting health care. Many, many, many doctors and hospitals and clinics like cash just fine and provide pretty sweet cash discounts. There’s also concierge care as well, which is generally cheaper than insurance premiums and can even cover more stuff than many peoples’ insurances.

    Health insurance is quite the ridiculous starting premise as the only possible way to pay a doctor, clinic or hospital (or birthing center or midwife, for that matter).

    And it’s not like there is no place for something like a ‘cancer fund’ that everyone pays a small tax into and which pays for you if you end up with cancer. You could still spend your 500-1k a year in cash health care expenses (if that, many people spend 5-15k/yr in premiums and never actually go to a doctor) and pay 200 a year into the cancer fund along with everyone else and have the benefits of government funding for rare expensiveness (cancer) while paying cash for health care without having to go through health insurance rigamarole, as was and is quite common even in various parts of omgz europe.

    Anyway this is why the mandate and ACA should go away. There are better ways to go that are already how many people get health care.

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