Can Congress force me to buy health insurance?

posted at 10:00 am on August 22, 2009 by Ed Morrissey

One of the more troubling components of the ObamaCare bill wending its way through the House is the inclusion of individual mandates to carry health insurance.  What gives Congress the power to dictate that choice to American citizens?  A single document enumerates Congressional power, and former Department of Justice attorneys David Rivkin and Lee Casey have some trouble finding that power in it.  They argue, with appropriate citations of precedent, that HR3200 and any other bill that attempts to impose mandates will violate the Constitution:

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

Most states now require drivers to have auto insurance before issuing drivers licenses, car registrations, or both.  However, that doesn’t apply here for three reasons.  First, that power rests with the individual states, as they are the licensing authorities and not the federal government.  Second, driving is not a right but a privilege, which gives access to state-owned roads in exchange for a demonstration of competence and appropriate safety and insurance preparation, so the state can and does set conditions on that privilege (too many, but that’s an argument for another day).  Third, because the insurance is conditioned on that privilege, it only affects a portion of the populace.  The states could not demand universal auto insurance on every man, woman, and child in their state.

But how about using the tax code to enforce the mandate?  Congress has the power to tax, as we know all too well, and they can create some severe penalties for failure to comply.  In fact, HR3200 does just that now.  However, as Rivkin and Casey explain, any tax that seeks to impose policy that goes beyond the limits of the Commerce Clause is also unconstitutional:

Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

In other words, individual mandates are unconstitutional, regardless of whether they’re explicit or buried in tax policy.

If that’s true, what happens to universal coverage?  It fails, because not everyone wants to buy health insurance now, and that’s likely to be more rather than less true after ObamaCare passes.  As we saw in Maine, when the government offers a public plan and forces community pricing and unrestricted access on private insurers, the people most likely to enroll will be the infirm, whose costs will unbalance the risk pools and drive up premiums across the board.  That will make insurance even more expensive, which will discourage rather than encourage enrollments, and do nothing at all to lower public costs of healthcare – the entire stated reason for ObamaCare, other than universal coverage.

The only way to get mandatory universal coverage is conversion to a single-payer system, which Congress also doesn’t have the power to do without amending the Constitution.  Otherwise, free will in a free system dictates that people will make choices with which many disagree, and that includes the choice not to buy health insurance.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2 3 4

Can Congress force me to pay for your health care if you do not have health insurance and you can’t or won’t pay your medical bill?

bayview on August 22, 2009 at 10:56 AM

Here is my problem with the conclusion made by the two lawyers. 1. They are lawyers and don’t think beyond the paper driven, motion and case law energized world they live in.

They say, “No way this can happen! It’s unconstitutional.”

Yet, they aren’t the only two lawyers on the planet and certainly not the only ones working on the bill. Some lawyer or lawyers in that process must disagree but they put it IN the bill! If it is so blatantly unconstitutional, then why did someone try to put it in in the first place. ??

Somebody thinks they can get away with it, somebody has a plan. Could it be something as simple as the writers of the bill have faith that judges will rule in their favor. Say, like campaign finance limits??

God, I really hate lawyers, they are always the first to offer a screwed up opinion, and the last to have the light bulb pop on over their heads. There’s a reason why in all the zombie and dinosaur movies we see they get eaten first.

archer52 on August 22, 2009 at 10:56 AM

Any comments as to just how it is possible for “we the people” to replace a government that has become tyrannical? I’m posing this question generally to all because I admittedly don’t have an idea in this regard.

Lourdes on August 22, 2009 at 10:44 AM

- Voting
- State refusal of federal mandates through 10th Amendment
- Military coup
- Secede
- Citizen uprising and overthrow

Just throwing it out there.

darwin on August 22, 2009 at 10:56 AM

You forgot reason #4, Ed: no one is required to have a car. If I want to avoid car insurance, I have the option of not buying a car and taking the bus or a bike or whatever.

What’s my option to avoid health insurance? Die?

Lehosh on August 22, 2009 at 10:16 AM

Gawd, what a helpless, pathetic victim mentality.

Actually, yes I can die if that’s my CHOICE. Presently I can CHOOSE to purchase insurance with my own money to protect my family’s finances should I become ill or injured. Or, I can choose not to. I can choose to buy medical treatment or not. My choice. I accept the consequences of my actions or inactions every day, without government help in all other areas of my life. As long as I don’t hurt others with my choices, gov’t needs to stay the hell out of my choices.

However, socialists like Obama don’t believe in personal ownership of property (or wealth), and believe all money I earn is actually the government’s, owned collectively by all, and that I should only be allowed to spend a small portion of what I earn as I CHOOSE to, because I may not choose to spend in the ways they WANT me to. (sound familiar?) These collectivists’ mentality is krytonite to “life, liberty and the pursuit of happiness”. These people are the ones who are truly Un-American.

Fishoutofwater on August 22, 2009 at 10:56 AM

So, where’s Massassachets authority for ordering people to be insured?

Blake on August 22, 2009 at 10:57 AM

Can Congress force me to pay for your health care if you do not have health insurance and you can’t or won’t pay your medical bill?

bayview on August 22, 2009 at 10:56 AM

That’s the current plan.

thomasaur on August 22, 2009 at 10:57 AM

That clause is in the Preamble of the Constitution, the raison d’etre of the Constitution, the reason it was brought into being. It doesn’t have the force of law, like marriage vows don’t until both parties say, “I do.” Liam on August 22, 2009 at 10:54 AM

Art I Sec 8 enumerates the specific powers by which the general welfare may be promoted by the federal govt.

If we were running a strictly constitutional govt right now, we wouldn’t need witholding, capital gains, death tax, and more. We could function with imposts and duties, federally anyway.

Akzed on August 22, 2009 at 10:57 AM

By the time this works its way up to the Supreme Court, the Won will have stacked the court with justices who aren’t about to let a 230-year-old document get in the way of progress!

cirrus on August 22, 2009 at 10:57 AM

Torches & Pitch fork Time! Storm Congress! Tar & Feather The Bums, Ride Them Out On A Rail!

Jeff from WI on August 22, 2009 at 10:58 AM

cirrus on August 22, 2009 at 10:57 AM

Agreed. The New Constitution will be written in ball-point ink.

Limerick on August 22, 2009 at 10:58 AM

So, where’s Massassachets authority for ordering people to be insured? Blake on August 22, 2009 at 10:57 AM

It’s a state. It can do what it wants.

Akzed on August 22, 2009 at 10:59 AM

Can Congress force me to pay for your health care if you do not have health insurance and you can’t or won’t pay your medical bill?

bayview on August 22, 2009 at 10:56 AM

They already do.

Fishoutofwater on August 22, 2009 at 10:59 AM

I am so stoopid. I thought the Constitution said something to the effect of “We the People”, not “we the Government Beaurocratic Elite”. My bad.

Robert17 on August 22, 2009 at 10:59 AM

For a constitutional law professor, Obama sure is a dope. He is shredding the constitution.

TXMomof3 on August 22, 2009 at 10:59 AM

In other words, individual mandates are unconstitutional, regardless of whether they’re explicit or buried in tax policy.

A lawyer tells me that the way around that is for Obama to create a medical insurance company and artifically lower the price to kill of private insurance.

And that Obama can do that with all industries.

drjohn on August 22, 2009 at 10:39 AM

…which is exactly what Obama & the other Democrats in Congress are attempting to implement. By using the sales pitch “you will be able to keep your private insurance if you want to” and “you will be able to see your current doctor if you want to”, they are lying indirectly.

Because that’s part of the step process. They’ll “allow” those basic options (as if it’s theirs to allow, I realize, which is in itself outrageously corrupt for them to be declaring) but the process overall is one established to bring about the end of private industry in health care (insurers AND physicians as also individual options for choice of care for oneself or family members).

It’s a cowardly, sneaky, despicable process they (Obama and Democrats) are engaged in but that’s what it is, a step process by which the goal is to bring about an end to private industry and individual behaviors as to all things “health care” and related. They’re selling a fantasy inorder to skirt obvious offensive policy/legislation, but it’s the goal (so they’re using the fantasy to sell it).

In other words, they’re setting a trap. A great big one.

Lourdes on August 22, 2009 at 10:59 AM

“General welfare” clause. The statists see that as a blank check for literally anything. SteveMG on August 22, 2009 at 10:12 AM

That clause is in the Preamble of the Constitution, the raison d’etre of the Constitution, the reason it was brought into being. It doesn’t have the force of law, like marriage vows don’t until both parties say, “I do.”
Liam on August 22, 2009 at 10:54 AM

With all due respect, Liam, Article 1 Section 8 starts out with “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;…”

Patrick S on August 22, 2009 at 11:00 AM

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist.

Anyone who goes to a doctor is “consuming a commodity”. How many people never, ever go to the doctor? The question is who pays for it – the individual, the state or Federal government (via taxpayers) or a health insurer.

The problem is that everyone (in each state – there should be no federal program) doesn’t buy health insurance (and therefore spread the risk around) then it is fiscally impossible for insurers to cover pre-existing conditions.

How do we address this?

Buy Danish on August 22, 2009 at 11:00 AM

Where is the SCOTUS on all of this? Why are they not speaking out against the over reaching power grabs this administration is pulling off? WTF? How many violations does it take before they….oops, never mind, Sonya’s in da house. Empathy is our best and only policy.

milwife88 on August 22, 2009 at 11:01 AM

…If Americans were forced to write monthly checks to Uncle Sam a whole lot of nonsense would stop.
flyfisher on August 22, 2009 at 10:47 AM

Super true, flyfisher.

Just as you cannot opt out of FICA/Social Security auto-deductions (unless you are a federal employee…they have a very different, not bankrupt fund they pay into) from your paycheck, Obama will just deduct this out of paychecks. Most stupid people will be none the wiser…and believe they are getting something fabulously generous from Big Brother.

marybel on August 22, 2009 at 11:01 AM

They are allowed to write bills in which they prevent the Court from deciding Constitutionality under Article III:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
unclesmrgol on August 22, 2009 at 10:25 AM

What are you talking about this article had to do with treaties and the states.

Please make sure you add the WHOLE article 3 section 2!

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

xler8bmw on August 22, 2009 at 11:01 AM

What would a wise latina think about this?

BPD on August 22, 2009 at 11:01 AM

The bill is written with those penalties established so if it were to pass it would probably be constitutional. We have to kill the bill in its entirety. The constitutionality should be the first consideration not the last.

fourdeucer on August 22, 2009 at 11:01 AM

For a constitutional law professor, Obama sure is a dope. He is shredding the constitution.

TXMomof3 on August 22, 2009 at 10:59 AM

He may have failed Constitutional law in school, but he won’t allow any release of his records, so we will never know. And the fact that he taught constitutional law may be a tribute to Affirmative Action.

Christian Conservative on August 22, 2009 at 11:02 AM

Akzed on August 22, 2009 at 10:57 AM

I stand corrected. Thanks!

Now to figure out how to define the term without getting all liberal about it.

Liam on August 22, 2009 at 11:03 AM

Arguing about constitutionality is silly. If the Gov’t desires a certain outcome, it will do whatever is necessary to achieve that goal. America is a long way from being the strict, constructionist entity Ed and Fox News followers think it is.

Good4Onan on August 22, 2009 at 11:03 AM

This piece hits exactly upon a thought I’ve had for the last few weeks: America was and is different because since the founding we have made the rights of the INDIVIDUAL paramount. We do not hold SOCIETY (COLLECTIVE) in a higher position. This is a perfect example of what DEMOCRAT/SOCIALISTS are doing to destroy the individual and his/her rights. They take the position that a individual choosing not to have insurance harms the collective and they will punish the individual for it. America senses this and finds it inherently wrong a gut level. We are different because we have always come down on the side of individual rights. The dems/libs/socialists are trying to destroy that basic concept underpinning the idea of America since it’s founding. Please fight this fundamental change or you will become slaves to an increasingly powerful central government. That is not why this country was founded. It is wrong and must be stopped!

jwp1964 on August 22, 2009 at 11:04 AM

Patrick S on August 22, 2009 at 11:00 AM

Got it better now. Thanks!

Liam on August 22, 2009 at 11:05 AM

Can Congress force me to buy health insurance?

…I think you meant to ask MAY Congress force me to buy health insurance? As in, are they permitted to do so by the United States Constitution.

You see, when you say CAN they do it, you are asking whether it is physically possible for them to do so.

…And, btw, the answer to both questions is no.

logis on August 22, 2009 at 10:51 AM

Actually, the answer is “yes” to both. Congress CAN and MAY force all U.S. residents and citizens to “enroll in” (pay for) the government plan by one means or another, such as fining those who refuse to (already being discussed by Congress, that fining process).

Congress CAN and MAY issue invoices (“bills”) to any individual who “refuses to” enroll or purchase the government option and once issued, just try and contest it (won’t, probably, even be possible and then they’ll tack-on fines and penalties and such and over time, anyone not purchasing the government plan will be inundated with financial charges implemented by Congress, whether it’s Constitutionally enabled or not).

THEY (Congress) likely won’t be issuing the charges against individuals, they’ll just have some new Department doing so, like the IRS does if they deem you owe taxes you haven’t paid or don’t agree you even owe (they’ll still bill you and it quickly becomes a financial monster even if you disagree with the taxes).

Lourdes on August 22, 2009 at 11:05 AM

I’ve pondered that mandate for awhile now, and while I don’t belong to, or participate in religion such as this. There are some that do. What to do, in the situation of those who because of their religion, do not believe in hospitals, or doctors, or medications? Separation of church, and state, and yet this could be forced apon them?

It’s getting very convoluted.

capejasmine on August 22, 2009 at 11:06 AM

It’s a state. It can do what it wants.

Akzed on August 22, 2009 at 10:59 AM

States have constitutions and the ones I’ve seen are patterned after the federal one.

So, again, anyone know what Mass. derives its authority to mandate health insurance?

Blake on August 22, 2009 at 11:06 AM

Patrick S on August 22, 2009 at 10:35 AM

Good point. And basically a paraphrase of what Jefferson wrote when he was kicking Hamilton’s ass over the topic of a national bank

To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

Than we have Madison, who wrote:

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.”

Of course, what the hell do those guys know? Madison only authored the Constitution.

Fed45 on August 22, 2009 at 10:43 AM

Good comment. Tks 4 the quotes. They prompted me to look up some more:

28 Principles of Liberty Also written about in the book, The 5000 Year Leap (30th Anniv. edition issued in 2009 w/intro by Glenn Beck)

Absolutely vital, dynamite stuff, that so many of us have forgotten, or never properly learned. Buy it for yourself, and give a copy to your kids.

Thank you il-Duce Doucebag Obama for waking us the hell up!

JiangxiDad on August 22, 2009 at 11:08 AM

Patrick S on August 22, 2009 at 11:00 AM

General Welfare mentioned twice in the constitution HAS NOTHING to do with the welfare or charity to the people. It has to do with the welfare of the country. James Madison made that quite clear!

“Charity is no part of the legislative duty of the government.” James Madison

xler8bmw on August 22, 2009 at 11:08 AM

I have a duty, as an American, to the Constitution of the United States. I also have a duty, as a Texan, to the Constitution of the Republic of Texas(1845)…

Article 1, Section 1, (Texas Bill of Rights)…

SECTION 1. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times the unalienable right to alter, reform, or abolish their form of government, in such manner as they may think expedient.

Limerick on August 22, 2009 at 11:08 AM

The issues we are debating in this thread are the same kind of issues hotly debated in the runup to the Civil War. Revisionists want us to believe that war was all about slavery. It was mostly a war over Federal government power. Many don’t realize less than 385,000 whites owned slaves–less than 5% of Southerners–while everyone was impacted by the encroachments of government. Slavery was abhorent, but so was/is a tyrannical central government.

flyfisher on August 22, 2009 at 11:09 AM

Where is the SCOTUS on all of this? Why are they not speaking out against the over reaching power grabs this administration is pulling off? WTF? How many violations does it take before they….oops, never mind, Sonya’s in da house. Empathy is our best and only policy.

milwife88 on August 22, 2009 at 11:01 AM

Errr….ummmmmm…SCOTUS judges don’t “speak out” on anything controversial. They can’t. Doing would possibly disqualify them as prejudicial in potential upcoming cases. There is nothing yet for them to speak out on. Ans the only way they would “speak out” would be in the text of any ruling.

Fed45 on August 22, 2009 at 11:10 AM

About damn time someone starts raising the Constitutional question.

Does the Federal government have the right to force us to buy health coverage? No!

But an even larger question is do they have the right to create, run, manage, etc a national health care plan? The answer to that is a loud HELL NO!

The GOP needs to fight Obamacare on Constitutional grounds alone. Make Obama and the Marxists in the Politburo (aka Congress) state where in the Constitution their goals are authorized.

“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” – Thomas Jefferson

DerKrieger on August 22, 2009 at 11:10 AM

Remember when Robert Spencer did his weekly piece on the Koran here at HA?

Maybe Ed/Allah/Michelle can find someone to do a similar weekly thing on the Constitution.

JiangxiDad on August 22, 2009 at 11:10 AM

What would a wise latina think about this?
BPD on August 22, 2009 at 11:01 AM

I think we’ll find out.

Akzed on August 22, 2009 at 11:10 AM

States have constitutions and the ones I’ve seen are patterned after the federal one.

So, again, anyone know what Mass. derives its authority to mandate health insurance?

Blake on August 22, 2009 at 11:06 AM

Exactly! since most state constitutions mirror the Federal Constitution the state that wants to force socialized medicene on its citizens has to amend their constitution.

Check out what Massachusetts had to do

elduende on August 22, 2009 at 11:12 AM

General Welfare mentioned twice in the constitution HAS NOTHING to do with the welfare or charity to the people. It has to do with the welfare of the country. James Madison made that quite clear!
“Charity is no part of the legislative duty of the government.” James Madison
xler8bmw on August 22, 2009 at 11:08 AM

Oh I know, friend. I know.

Patrick S on August 22, 2009 at 11:12 AM

I have a duty, as an American, to the Constitution of the United States. I also have a duty, as a Texan, to the Constitution of the Republic of Texas(1845)…

Article 1, Section 1, (Texas Bill of Rights)…

SECTION 1. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times the unalienable right to alter, reform, or abolish their form of government, in such manner as they may think expedient.

Limerick on August 22, 2009 at 11:08 AM

Here, here…

TXMomof3 on August 22, 2009 at 11:12 AM

Obama and company have wee-weed on the constitution.

farright on August 22, 2009 at 11:12 AM

Fed45 on August 22, 2009 at 11:10 AM

Not true. The SCOTUS early in FDR’s ‘reign’ declared much of the New Deal unconstitutional. In reaction to that proactive move by the SCOTUS FDR threatened to pack the court with cronies that would give the New Deal a pass. The SCOTUS reversed itself and since then has been silent unless a challenge to law is brought before it. They are still able to perform judicial review of any legislation they want.

DerKrieger on August 22, 2009 at 11:12 AM

Fed45 on August 22, 2009 at 11:10 AM

Sure, ur right, but I have noticed that giving TV interviews has been increasing lately. I remember seeing Scalia and Ginsberg in the recent past. Perhaps they ought to resume that conversation with the American people (but without Bill Moyers or some other commie asking the questions.)

JiangxiDad on August 22, 2009 at 11:13 AM

Obama and company have wee-weed on the constitution.

farright on August 22, 2009 at 11:12 AM

That about sums it up. ‘Nuf said.

TXMomof3 on August 22, 2009 at 11:13 AM

States have constitutions and the ones I’ve seen are patterned after the federal one.

So, again, anyone know what Mass. derives its authority to mandate health insurance?

Blake on August 22, 2009 at 11:06 AM

Mass. and any other state derives their authority from the 10th Amendment. Nothing unconstitutional about a state raises taxes for things not specifically enumerated in Art. !. Sec 8.

Fed45 on August 22, 2009 at 11:14 AM

Patrick S on August 22, 2009 at 11:12 AM

Ok my apologies I misread what you meant so we agree thank god there are still people with commonsense in this country.

xler8bmw on August 22, 2009 at 11:14 AM

I have a duty, as an American, to the Constitution of the United States. I also have a duty, as a Texan, to the Constitution of the Republic of Texas(1845)…

Article 1, Section 1, (Texas Bill of Rights)…

SECTION 1. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times the unalienable right to alter, reform, or abolish their form of government, in such manner as they may think expedient.

Limerick on August 22, 2009 at 11:08 AM

Here, here…

TXMomof3 on August 22, 2009 at 11:12 AM

Wow.

JiangxiDad on August 22, 2009 at 11:14 AM

Arguing about constitutionality is silly.
Good4Onan on August 22, 2009 at 11:03 AM

Spill your seed elsewhere.

flyfisher on August 22, 2009 at 11:14 AM

They are still able to perform judicial review of any legislation they want.

DerKrieger on August 22, 2009 at 11:12 AM

How can we the people make them get buisy and review this crap sandwich?

farright on August 22, 2009 at 11:15 AM

For a constitutional law professor, Obama sure is a dope. He is shredding the constitution.

TXMomof3 on August 22, 2009 at 10:59 AM

Actutally, he’s proven that he was, indeed, A LECTURER *about* the U.S. Constitution.

He was never “a professor” in that regard, he was merely a lecturer who stood before a podium, reading the notes he was performing before the crowd (sounds familiar today, does it not).

So he’s proven that he was and is, indeed, a talented LECTURER. That does not mean, however, that he UNDERSTANDS what he’s reading and performing because by this date, he’s shown the whole world that he certainly does not understand what he’s lecturing about.

Lourdes on August 22, 2009 at 11:15 AM

Sure, ur right, but I have noticed that giving TV interviews has been increasing lately. I remember seeing Scalia and Ginsberg in the recent past. Perhaps they ought to resume that conversation with the American people (but without Bill Moyers or some other commie asking the questions.)

JiangxiDad on August 22, 2009 at 11:13 AM

I’m sure those have been the most generic of topics. They most certainly will not comment specifically on the potential unconstitutionality of any pending legislation.

Fed45 on August 22, 2009 at 11:17 AM

farright on August 22, 2009 at 11:15 AM

Short of writing real letters I don’t knnw. I check the SCOTUS website a few months ago to ask that very question but didn’t see any way to contact the Justices.

DerKrieger on August 22, 2009 at 11:17 AM

For a constitutional law professor, Obama sure is a dope. He is shredding the constitution.

TXMomof3 on August 22, 2009 at 10:59 AM

Actutally, he’s proven that he was, indeed, A LECTURER *about* the U.S. Constitution.

He was never “a professor” in that regard, he was merely a lecturer who stood before a podium, reading the notes he was performing before the crowd (sounds familiar today, does it not).

So he’s proven that he was and is, indeed, a talented LECTURER. That does not mean, however, that he UNDERSTANDS what he’s reading and performing because by this date, he’s shown the whole world that he certainly does not understand what he’s lecturing about.

Lourdes on August 22, 2009 at 11:15 AM

Obama merits a statue before the Academy of Arts and Sciences in L.A., CA, for being a talented performer, the man who performed the Presidency.

Lourdes on August 22, 2009 at 11:17 AM

The issues we are debating in this thread are the same kind of issues hotly debated in the runup to the Civil War. Revisionists want us to believe that war was all about slavery. It was mostly a war over Federal government power. Many don’t realize less than 385,000 whites owned slaves–less than 5% of Southerners–while everyone was impacted by the encroachments of government. Slavery was abhorent, but so was/is a tyrannical central government.

flyfisher on August 22, 2009 at 11:09 AM

This is a dead on assessment of what is happening. States all over the union are beginning to challenge the FEDs again based on 10th Amendment. Some of the lawsuits are just ginning up.

I just told two friends I’ve known for 23 years they are dead to me. I can forgive voting for the one, but I will not forgive supporting a socialist/marxist agenda. My freedom will not be given up without a fight and if I have to fight family/friends to keep it then so be it.

jwp1964 on August 22, 2009 at 11:19 AM

Lourdes on August 22, 2009 at 11:15 AM

True distinction there, thanks for clearing that up.

TXMomof3 on August 22, 2009 at 11:19 AM

Lourdes on August 22, 2009 at 11:17 AM

Obama is a combination of Carter and Clinton on steroids with none of their political experience to back him up. But then again, he doesn’t need it. He’s got Rahm, Axelrod, and Soros.

kingsjester on August 22, 2009 at 11:20 AM

Wow.

JiangxiDad on August 22, 2009 at 11:14 AM

Wow, we are nutcases or wow, great constitutional authority?

TXMomof3 on August 22, 2009 at 11:21 AM

Arizona will be setting the stage for a Constitutional showdown over health care. Others may be joining them.

DerKrieger on August 22, 2009 at 11:22 AM

Not true. The SCOTUS early in FDR’s ‘reign’ declared much of the New Deal unconstitutional. In reaction to that proactive move by the SCOTUS FDR threatened to pack the court with cronies that would give the New Deal a pass. The SCOTUS reversed itself and since then has been silent unless a challenge to law is brought before it. They are still able to perform judicial review of any legislation they want.

DerKrieger on August 22, 2009 at 11:12 AM

What’s not true? I never said they weren’t legally able to. I implied there were risks in doing so. Which you clearly show the potential risks of doing so. Stare decisis is not just a legal term, but is the prevailing thought process of SCOTUS judges. Why do you think they never answer the “Roe v Wade” questions during their Senate confirmation hearings.

Fed45 on August 22, 2009 at 11:22 AM

I think the constitutional argument will be shot down. However, I was amused during the primary, when Obama was touting mandatory enrollment only for parents and children. That, I was fairly sure, would be unconstitutional.

It’s discriminatory. Nobody questioned him on it. Guess his “constitutional teacher” label was untouchable.

AnninCA on August 22, 2009 at 11:22 AM

For those who prefer their Constitutional history on computer, try this one, the U.S. Constitution Coach Kit, from powerThink. It’s fantastic.

JiangxiDad on August 22, 2009 at 11:22 AM

We the People know it is unconstitutional.

publiuspen on August 22, 2009 at 10:35 AM

And THAT, is the friggin problem! While Teddy embraced a somewhat necessary modicum of progressivism to break up the monopolies that were then strangling innovation and fre markets. The last 100 yrs collectivists have run amuk and taken things and perverted them far beyond their original intent.

The collectivists are masters of adaption, they have to be as on its face what they are selling is unattractive. They take whatever is selling at different moments in history, infiltrate it, co-opt it and use it as maleable vehicle to carry them to their own ends.

Take Fascism which started in the 1890′s as radical leftist movement in Italy, then they suavely hichted a ride on Mussolin’s right-wing authoritarian nationalism as well as Hitler’s National Socialism. This simultaneous adoption of reft-wing Nazi-ism and right-wing Fascism illustrates perfectly how they have no underlying principles other absolute control through collectivism.

They have no objective, despite whatever ideology of convenience is at hand that they spout, besides authoritarian dominance over individuals!

Archimedes on August 22, 2009 at 11:23 AM

DerKrieger on August 22, 2009 at 11:22 AM

Amen.

Wow, we are nutcases or wow, great constitutional authority?

TXMomof3 on August 22, 2009 at 11:21 AM

more like Wow I’m moving to TX!

elduende on August 22, 2009 at 11:23 AM

lol Ed’s a healther.

Ronnie on August 22, 2009 at 11:24 AM

Fishoutofwater on August 22, 2009 at 10:56 AM

You seem to have misread my comment. I would have thought “if DC mandates Health Insurance” was implied in what I said.

Lehosh on August 22, 2009 at 11:24 AM

Can Congress force me to buy health insurance?

…I think you meant to ask MAY Congress force me to buy health insurance? As in, are they permitted to do so by the United States Constitution.

You see, when you say CAN they do it, you are asking whether it is physically possible for them to do so.

…And, btw, the answer to both questions is no.

logis on August 22, 2009 at 10:51 AM

Actually, the answer is “yes” to both. Congress CAN and MAY force all U.S. residents and citizens to “enroll in” (pay for) the government plan by one means or another, such as fining those who refuse to (already being discussed by Congress, that fining process).

Congress CAN and MAY issue invoices (”bills”) to any individual who “refuses to” enroll or purchase the government option and once issued, just try and contest it (won’t, probably, even be possible and then they’ll tack-on fines and penalties and such and over time, anyone not purchasing the government plan will be inundated with financial charges implemented by Congress, whether it’s Constitutionally enabled or not).

THEY (Congress) likely won’t be issuing the charges against individuals, they’ll just have some new Department doing so, like the IRS does if they deem you owe taxes you haven’t paid or don’t agree you even owe (they’ll still bill you and it quickly becomes a financial monster even if you disagree with the taxes).

Lourdes on August 22, 2009 at 11:05 AM

^^ I DO NOT declare there, though, that Congress CAN or MAY do either Constitutionally, just recognizing that today’s rendition of the Congress certainly CAN and very well MAY do such (despite the Constitution).

Lourdes on August 22, 2009 at 11:24 AM

Sorry, pasted the wrong lead in quote from the thread I was commenting on. My Bad!

Archimedes on August 22, 2009 at 11:24 AM

Stare decisis is not just a legal term, but is the prevailing thought process of SCOTUS judges. Why do you think they never answer the “Roe v Wade” questions during their Senate confirmation hearings.

Fed45 on August 22, 2009 at 11:22 AM

The times are changing, and where at another pivotal place in our history, such as when other precedents (sep.but equal, for ex) were discarded. I wonder if we’ll even start seeing lower courts rule in opposition to established Supreme Ct. precedence. I don’t think there’s anything legal to stop it.

JiangxiDad on August 22, 2009 at 11:24 AM

About damn time someone starts raising the Constitutional question.

***

The GOP needs to fight Obamacare on Constitutional grounds alone. Make Obama and the Marxists in the Politburo (aka Congress) state where in the Constitution their goals are authorized.

DerKrieger on August 22, 2009 at 11:10 AM

I agree. While it’s a good thing that the GOP stepped back up until now to allow Obama & Co. to flail and fail, it’s really time now to step in with some carefully thought-out, strong opposition to the entire bill.

Force the bill to be dropped completely. And then start talking, out in the open, about repair of current issues.

No overhauls of healthcare, or Constitution, please!

misslizzi on August 22, 2009 at 11:24 AM

more like Wow I’m moving to TX!

elduende on August 22, 2009 at 11:23 AM

Ditto. And that a people once had the nerve/confidence/self-respect to enshrine those words into their founding docs. Just wow.

JiangxiDad on August 22, 2009 at 11:26 AM

In my fantasy I see a conservative controlled congress in 2011 with Obama’s impeachment and numerous convictions for failing to uphold the oath of office.

farright on August 22, 2009 at 11:27 AM

I just told two friends I’ve known for 23 years they are dead to me. I can forgive voting for the one, but I will not forgive supporting a socialist/marxist agenda. My freedom will not be given up without a fight and if I have to fight family/friends to keep it then so be it.

jwp1964 on August 22, 2009 at 11:19 AM

I have done the same. It sucks, but is necessary. fwiw, sorry.

JiangxiDad on August 22, 2009 at 11:27 AM

Fed45 on August 22, 2009 at 11:22 AM

You said they “can’t” speak out. I was assuming you meant in their capacity as Justices, not nominees.

DerKrieger on August 22, 2009 at 11:28 AM

Exactly! since most state constitutions mirror the Federal Constitution the state that wants to force socialized medicene on its citizens has to amend their constitution.
elduende on August 22, 2009 at 11:12 AM

The Mass plan is not “socialized medicine”. Individuals not covered by Medicare/Medicaid (programs which already existed) bought private health insurance from private insurers. There was no “public option” or “single payer” plan, or government funded “co-op”.

Buy Danish on August 22, 2009 at 11:28 AM

I’m sure those have been the most generic of topics. They most certainly will not comment specifically on the potential unconstitutionality of any pending legislation.

Fed45 on August 22, 2009 at 11:17 AM

Hopefully, they will find a way to let their “interest” be known, if obliquely. There must be a role played by them, one way or another. It’s their obligation to take part. And time is a-wasting.

JiangxiDad on August 22, 2009 at 11:29 AM

I have done the same. It sucks, but is necessary. fwiw, sorry.

JiangxiDad on August 22, 2009 at 11:27 AM

Thanks. Was not pleasant and I fear there are several more to come. I have drawn my personal line in the sand.

jwp1964 on August 22, 2009 at 11:29 AM

My freedom will not be given up without a fight and if I have to fight family/friends to keep it then so be it.

jwp1964 on August 22, 2009 at 11:19 AM

Amen! For my children’s sake I am unwilling to sit back and allow government to take over our lives. Frankly, I think Americans should have been outraged over government decades ago. We’ve got to stop this carnage now or our ancestors spilled their blood for nothing. If we do nothing we won’t recognize this nation in ten to fifteen years.

flyfisher on August 22, 2009 at 11:31 AM

I agree. While it’s a good thing that the GOP stepped back up until now to allow Obama & Co. to flail and fail, it’s really time now to step in with some carefully thought-out, strong opposition to the entire bill.

Somebody like Newt could be very helpful here, a brainy type. I just hope his MASSIVE, GARGANTUAN, EGO and SWELLED HEAD will allow him to figure out just what his proper role should be.

JiangxiDad on August 22, 2009 at 11:31 AM

This has been going on long before Obamageddon took over.
Know your history and you will know your future!

http://tinyurl.com/n34etq

xler8bmw on August 22, 2009 at 11:32 AM

Now to figure out how to define the term without getting all liberal about it.

Sadly, SCOTUS has already done that for us in Flemming v. Nester (1954). They ruled that questions concerning the conditions imposed on spending, and questions concerning the benefits were for the Congress to resolve–-subject to judicial invalidation “only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.”

Fed45 on August 22, 2009 at 11:33 AM

Second, driving is not a right but a privilege, which gives access to state-owned roads in exchange for a demonstration of competence and appropriate safety and insurance preparation, so the state can and does set conditions on that privilege (too many, but that’s an argument for another day).

A quibble… you don’t need a driver’s license to access public roads, you need one to operate an automobile(typically a car, light truck, truck, and IIRC now in most states, a motorcycle) on public roads(farm equipment, bicycles, animals, etc. are typically exempt).

elgeneralisimo on August 22, 2009 at 11:33 AM

Buy Danish on August 22, 2009 at 11:28 AM

Point taken. Nevertheless, that does not mean that the states wouldn’t need to amend their Constitutions in order to enact public options. Same with the US Constitution.

elduende on August 22, 2009 at 11:33 AM

Continue to fight this thing before it gets to a vote in congress. Don’t count on SCOTUS for anything.

SKYFOX on August 22, 2009 at 11:33 AM

I don’t think there is any way to force people to buy the policy. How would they do it? Maybe someone should ask them to spell it out.

I’m pretty sure the Democrats don’t realize that they will be expected to buy their own insurance policies. If they were willing to do that, we wouldn’t be having this whole discussion.

They must be planning on everyone having the same policy but everyone paying different premiums on this one policy. They’ll have us all paying a different price for a loaf of bread by the time they’re done.

Buddahpundit on August 22, 2009 at 11:33 AM

From the referenced article on insurance in Maine:

…healthy male in Maine who is 30 and single pays a monthly premium of $762 in the individual market; next door in New Hampshire he pays $222 a month.

I don’t know if this is off topic, but the capitalist in me asks why the man in Maine can’t buy insurance from the company in New Hampshire? This is not a free market system when states can dictate what insurance you can and can’t access. You can’t blame capitalism for a mess lie this when it takes the power of government to restrict access to competition.

Get rid of these ridiculous state by state restrictions. Bring real competition back into the insurance market, in other words, make it an actual market.

I’m not saying insurance companies are innocent in this. When the state limits competition, those in business can realize very high profits even under high regulation and tax environments. But further regulation and taxes don’t fix any problems, it just makes it worse since it further restricts and competition.

And a federal government that supports, nay, encourages this system isn’t the one capable of “fixing” it via more regulations, taxes, and demands.

karl9000 on August 22, 2009 at 11:34 AM

There will be a “religious exception” (opt-out) to any forced insurance plan, so the simplest thing would be for all who object to this tyrannical move by Obama is to insist that they have become either “Beachy” Amish (who drive cars and use modern technology) or Zen Buddhists (who accept the will of the universe concerning their health, and will pay their own bills if they get sick out of their own wallets).

Let Obama and his minions try to force religious people to bend to their tyrannical government’s “anti-religious” rules.

profitsbeard on August 22, 2009 at 11:36 AM

The Constitution stopped being a roadblock to bigger government a long time ago, alas.

Also, all they’d have to do is jack up our taxes and then offer a rebate if you buy health insurance, right?

jacrews on August 22, 2009 at 11:36 AM

My freedom will not be given up without a fight and if I have to fight family/friends to keep it then so be it.

jwp1964 on August 22, 2009 at 11:19 AM

My brother is an Obama supporter and union a-hole. He is dead to me.

farright on August 22, 2009 at 11:40 AM

The issues we are debating in this thread are the same kind of issues hotly debated in the runup to the Civil War. Revisionists want us to believe that war was all about slavery. It was mostly a war over Federal government power. Many don’t realize less than 385,000 whites owned slaves–less than 5% of Southerners–while everyone was impacted by the encroachments of government. Slavery was abhorent, but so was/is a tyrannical central government.

flyfisher on August 22, 2009 at 11:09 AM

DING DING DING! You win the prize. Lincoln turned the Civil War into a war on Slavery with his Emancipation Proclamation. A strong argument could be made that Lincoln himself had a hand in forcing the war but I would counter that the RINOs of that day, the WIGs, had a larger hand in it.

But back to the point, I agree 100% that we are facing the same kind of existential issue here. President Obama is **NOT** the instigator however. He is simply the end result of years of Americans being more concerned with where their next beer is coming from rather than the health and welfare of their Republic. It is a combination of the American mindset and power grabbing, self aggrandizing, twits we elect to office.

WE have allowed this to happen with our complacency. I never understood the phrase, “You’ve made your bed, now you must sleep in it”. If the bed I’ve made sucks, then we strip the bed clothes off and start over.

2010 we strip the bed clothes off. 2012 we start over.

Pilgrim on August 22, 2009 at 11:41 AM

I am wracking my brain trying to think of any tax that is imposed for NOT BUYING SOMETHING. I asked a friend who is a lawyer — pace, please: lawyers are good people like anyone else, and being a lawyer is a good vocation, and they didn’t create the predicament we are in — anyhow, I asked her yesterday about whether it is constitutional to impose a tax for not doing something. (I am awaiting her reply.)

Long story short: Every other tax that I am aware of is imposed because of something I did to initiate the tax. Income tax? I make an income. Sales tax? I buy something. Use tax? I use something. Property tax? I bought property.

I can’t think of any tax imposed for not doing something, so the tax either forces me to buy something (insurance) to spread out the risk and increase the insurers’ pool of money, or collects revenue to accomplish the same thing.

In some way, this is the Evil Twin of the Takings Clause. It’s eminent domain in insurance. Buy insurance to help others (i.e., the whole population) or we will use the power of gummint to take your money for the public good.

Taxation to force behavior that was not initiated by the citizen is THE MOST PERNICIOUS aspect of the entire bill, in my view.

Didn’t some patriots two centuries ago chant “TAXATION WITHOUT INDEMNIFICATION!”

OH, btw, go to http://www.boilingafrog.blogspot.com for T-shirts. New ones coming soon, and bumper tickers, too.

CO2MAKER on August 22, 2009 at 11:45 AM

You said they “can’t” speak out. I was assuming you meant in their capacity as Justices, not nominees.

DerKrieger on August 22, 2009 at 11:28 AM

The same philosophy applies, I believe. I’m unaware of any SCOTUS judge having shown their hand regarding any current legislation being debated in Congress in the past. Now, they most certainly speak about the law and how the law is applied. But for them to speak about a specific issue that has yet to be brought before the court?

Although I do stand somewhat corrected. In Scalia’s 60 Minutes interview they showed a clip of him speaking at Oxford Union, where he said “”You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

So just substitute “right to abortion”, with “right to healthcare” and you have your SCOTUS judge speaking out. ;-)

Fed45 on August 22, 2009 at 11:46 AM

Point taken. Nevertheless, that does not mean that the states wouldn’t need to amend their Constitutions in order to enact public options. Same with the US Constitution.

elduende on August 22, 2009 at 11:33 AM

What if states have insurance coverage mandates but no public option?

Buy Danish on August 22, 2009 at 11:46 AM

I wonder if we’ll even start seeing lower courts rule in opposition to established Supreme Ct. precedence. I don’t think there’s anything legal to stop it.

JiangxiDad on August 22, 2009 at 11:24 AM

Well, actually…yes there is. Stare decisis. It’s why lawyers always defend their cases by saying things like: “Your honor, in Simpson v Griffin or “in Jetson v Flintstone… the court ruled…..bla bla bla…”

Fed45 on August 22, 2009 at 11:52 AM

Art I Sec 8 enumerates the specific powers by which the general welfare may be promoted by the federal govt.

If we were running a strictly constitutional govt right now, we wouldn’t need witholding, capital gains, death tax, and more. We could function with imposts and duties, federally anyway.

Akzed on August 22, 2009 at 10:57 AM

Indeed so! And we do not need any of these things, under the constitution there is no rationale for them.

Both Federal withholding & income taxes were originally only imposed to pay for WWII. And the communications taxes on both your landline and cel were enacted only to fund the Spanish /American war, which only cost us $16 million. Somehow I think we have covered that by now, but there it is, the tax remains to this day!

This precisely demonstrates why initiation of most any new Gov’t program, must be freverently resisted. What is once started by Gov’t runs in perpetuity as becomes some bureaucrats personal fiefdom to be protected at all costs.

Another perfect example is the TVA,(Tennessee Valley Authority) to spur rural electrification that is still in existence. At this point I think that pretty much anyone that remains off the grid has chosen to do so. In fact it is directly in conflict with new Gov’t programs encouraging Americans to get off the grid!

And don’t even get me started on Gov’t Helium production instituted to have a reserve in case of war to float dirigables! Anyone still see a need for this? Anyone?

Despite massive amounts of money invested on renewable resources, the only perpetual motion machine to date, is the United States Government!

Archimedes on August 22, 2009 at 11:52 AM

You’d think after a certain Honduras President’s foray into constitutional disregard, Obama would be a bit wary.

Perhaps Obama thinks our military lacks the testicular fortitude?

jhffmn on August 22, 2009 at 11:52 AM

Revisionists want us to believe that war was all about slavery. It was mostly a war over Federal government power.

flyfisher on August 22, 2009 at 11:09 AM

Do you count among those “revisionists” the leaders of the seceding states? If you want to know why those states seceded all you have to do is read what THEY wrote in the various declaration of causes back in 1861.

South Carolina:

Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

Link
Or Georgia?

For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery. They have endeavored to weaken our security, to disturb our domestic peace and tranquility, and persistently refused to comply with their express constitutional obligations to us in reference to that property

Link
Or Mississippi?

Our position is thoroughly identified with the institution of slavery– the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth.

Link
Or Texas?

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color– a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law.

Link

Y’know, there is a reason why all of the states who seceded refered to themselves as slave states. It’s because SLAVERY WAS HOW THEY DISTINGUISHED THEMSELVES FROM THE NORTHERN STATES. So shove your revisionist history claptrap. It embarrasses you and the cause you represent.

PackerBronco on August 22, 2009 at 11:54 AM

Buy Danish on August 22, 2009 at 11:46 AM

I’m not sure. They may be able to do it. I can’t think of it happening anywhere though. Legally I guess they could justify pushing a mandate but politically it would be explosive.

elduende on August 22, 2009 at 11:55 AM

What is most fun is that Hamilton, himself, puts a pretty high standard on what to do if the system goes wrong. Not high as in ‘needs so many abuses’ but high in what WE are to do if the power we have granted has been so badly abused as to be a threat to the people. While he talks about the use of the military under Congress (or any part of the national government) his view on what to do and why is salient. From Federalist No. 26:

Schemes to subvert the liberties of a great community require time to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable that every man the instant he took his seat in the national Senate or House of Representatives would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties in order that they may be able to manage their own concerns in person.

He sets this bar very high on what to do for two reasons. First, no Nation should be plunged into anarchy for mere transient reasons. Abuses must be sustained, deep, and threatening the very liberty of individuals with the abuses of government turned tyrannical.

Second, however, was an attempt to forestall the criticisms of so many Anti-Federalists that Art. I, Sec. 8 was poorly worded, its powers overly broad, and that there were in no way ENOUGH safeguards in it to allow the people to see the trends of government over time. Federal Farmer, Brutus, Agrippa… so many of the Anti-Federalists (named by their opposition, many were staunch federalists bringing up problems in the lack of federalism) bring up the point that human nature and the way legislatures work put the people at risk without deep safeguards against National government. And they cited problems in the Dutch and Venetian systems, pointed out the strength of the Swiss system and otherwise felt obliged to show that the British system had deep problems in it.

Do remember that Hamilton’s Plan was to set up an aristocracy in the Legislature to oversee the Nation and to take an active part in the economic affairs of the Nation. While he dropped the former, he never did drop the latter. This problem was pointed out at the Founding. I wish that Hamilton, Madison, Jay, et. al. actually addressed the criticisms of the Constitution and strengthened it. George Mason criticized the Constitution, helped draft the Bill of Rights and then walked away from that as the structural problems were never addressed.

Now the warnings of the Anti-Federalists come true and we begin to understand that these flaws were there at the start. Reading the Anti-Federalists views and what they saw happening is very chilling stuff, these days.

ajacksonian on August 22, 2009 at 11:55 AM

I don’t think there is any way to force people to buy the policy. How would they do it? Maybe someone should ask them to spell it out.

I’m pretty sure the Democrats don’t realize that they will be expected to buy their own insurance policies. If they were willing to do that, we wouldn’t be having this whole discussion.

They must be planning on everyone having the same policy but everyone paying different premiums on this one policy. They’ll have us all paying a different price for a loaf of bread by the time they’re done.

Buddahpundit on August 22, 2009 at 11:33 AM

It’s A PROCESS by which people are to be corralled, so to speak, by way of “forcing” them toward the intended end (government option, an end to private industry in health and medical care).

Once a government option is made available, many people OVER TIME will increasingly be accessing it and increasing limitations will be placed on private insurers (demanding they “provide” this/that, etc.).

What’ll happen is just what happened in Hawaii when such a government option was made available there: ordinary people with bills to pay withdrew their families from the private insurance coverage they HAD been purchasing and opted over into the government plan, which they didn’t have to pay for or pay nearly as much for.

The government plan ONLY works, in a medical or “health care” sense, for healthy people. But everyone at some time has some condition that requires greater application of treatment and expenditure of costs to treat.

The BIO-ETHICAL QUESTION IS, as to the government option, who to deprive in order to make a government option actually function. And we’ve already heard from the Obama Admin. and Czars just what they have in mind in that regard…

I heard yesterday on FOX that someone explained there (Hannity’s show) that something like FIVE PERCENT of the population uses the majority of healthcare.

Lourdes on August 22, 2009 at 11:55 AM

Comment pages: 1 2 3 4