Judges sharply challenge healthcare law
Skeptical questions from three federal judges in Atlanta suggest they may be ready to declare unconstitutional all or part of the healthcare law promoted by the Obama administration and passed last year by Congress.
Question: if this case results in the court saying that government can not force people to purchase health insurance, does that mean Massachusetts mandated insurance would be struck down at the same time? If the federal gov’t can’t force us to buy something, then state gov’t can’t either, right?
Please share widely!
Wrong, actually. The argument in this case is whether any of the “enumerated powers” set forth in the US Constitution allow Congress to impose the individual mandate. But state governments do not have to confine themselves to the US Constitution’s “enumerated powers.” That list applies only to the federal government. Con Law 101.
I dated a Harvard Law student once (2L at the time), and I remember her telling me that states can give MORE rights to their residents, but they can’t give less rights than the Constitution gives all Americans. (I think the context was the first amendment freedom of religion, which I had argued applied just to “Congress” but she explained now applied to states after the 14th.) So how is a state forcing it’s residents to buy health insurance giving us more rights? It seems an awful lot like being forced to do something by the state, and if the Constitution says that we can’t be forced to do something, that there is a right to not buy health insurance, then doesn’t that apply to all citizens?
There are two distinct things that the Constitution does: (1) mostly in the original part of the Constitution, it lays out what the fed gov’t MAY do, and (2) mostly in the amendments (esp. the bill of rights, i.e., the first 10 amendments) it lays out what the fed gov’t (and as a result of subsequent cases, the states) may NOT do. Your friend was talking about point (2), e.g., the gov’t can’t infringe on free speech, and MA can offer more speech protection than the fed gov’t, but can’t offer less. I’m talking about point (1). The question in this case is whether requiring the purchase of health insurance falls within any of the list of things that the fed gov’t MAY do. That list is simply irrelevant to what states may and may not do.
But she said all that changed with the 14th Amendment, and now federal rights applied to the states too. So if we have a right not to be forced or restricted or compelled by the federal government, now we also have the same right not be forced or compelled by the states.
And are you really a 10th Amendment, state’s rights, enumerated-powers-only guy? I think the constitution says the federal government is prohibited from certain things, and the states are prohibited from certain things, but it doesn’t say that the federal government is forever limited to the things that it is charged with doing. If it is constitutional to be forced to buy something, or unconstitutional, it doesn’t matter whether it is a state or a federal law. How could that matter to a person being denied their rights?
I know what I’m talking about here.
She showed me her notes, man. Harvard notes, with Tribe’s illustrations and everything, and she said we have a basic minimum set of rights as American citizens, and states can increase our rights, but not decrease our rights. It had nothing to do with the powers of Congress circa 1789. It was a principle about how state sovereignty could overrule national sovereignty. States could give extra rights and extra benefits to their residents, but they couldn’t cut into the basic rights we all share as Americans. If we have a right to not pay for health insurance, we have that right in every state. No state can take away our right to cover our own asses to the level we feel necessary, and just die someday. We shouldn’t have to pay for IVF or abortions or liposuction or botox or penis enlargement or heart transplants or joint replacements if we don’t want to. If there is a right to be uninsured, it is a national right, not something we should have to move to Wyoming to have. That’s what the 14th Amendment gave every American: Equal rights no matter what state we were stuck in.
The problem here is that you are misunderstanding the nature of the debate over the health care mandate. The question is NOT whether individuals have the “right,” enforceable against any governmental body, not to buy health insurance. The question is whether Congress has the constitutional authority to require that everyone buy health insurance. Those are quite different questions from a con law standpoint. And if you’re still in touch with your ex-2L friend, she will confirm (if she knows what she’s talking about) that the question whether Congress may rely on the Commerce Clause, the Necessary and Proper Clause, the power to tax, the general welfare clause, or any other Article I power to enforce an individual health care mandate is irrelevant to the question whether the states may do the same.
I take it Dr. Cuteless is Troll in Residence around here, as it were?
But seriously, I am happy to learn that my notions of Amendment XIV are sound.
Exactly where Cuteless runs off the rails I am not sure, but her determination to address public medicine as a question of rights rather than of, say, the Commerce Clause probably has at least a little bit to do with it.
Happy days.
…that not all persons born or naturalized in the US are citizens, so take any interpretations of the 14th amendment with a grain of salt. Did I miss the words “police power” in this thread? That is the issue. States have a much broader and general police power than the federal government. Incorporation doctrine applies to most enumerated rights of the Bill of Rights, but there is no amendment that says the government shall not mandate purchase. If there were, that is where incorporation doctine could be argued to say that the states may not do so either.
At least in the constitutional sense. At least you’re not in the context of this case. The issue is simply whether the mandate is something that is within the jurisdiction of the federal government. If it is not, then the federal government can’t issue the mandate. (The federal government doesn’t get to set the rate of the Massachusetts sales tax, either, but the state sure can.)
There is another whole line of argument that the mandate is a “taking” and thus implicates the constitutional prohibition on government taking of private property for public use without just compensation. I am less familiar with this argument than the first, but I have the sense that it is nowhere near as promising for those attacking the law. But, if this were the winning theory, it could indeed jeopardize the Massachusetts law.
Now I know this is a Koch funded blog. The federal government can completely eliminate states. If it said the six New England states should be one state, and California two states, then it could do that. Just as surely as a state could set the borders of cities within its jurisdiction.
Everything is within the jurisdiction of the federal government except the few things that are prohibited to it in Section 9. And those limits further indicate that we are one country, not separate states.
It seems like something is missing here, which leaves me unable to understand what you’re talking about.
By your line of reasoning, States would not be able to raise their own taxes, require you to get a drivers license, or require you to buy car insurance.
In any case, the constitutionality of the mandate can always be fixed simply by replacing it with a slightly higher tax rate combined with a credit for buying insurance.
My reasoning is that if we have a right to not buy insurance, it must be in every state. If the federal government can’t force us to buy insurance, there is no way a state can. States can only give us more freedom and liberty, not less, and being forced to do something is less freedom. Yes, states can make us pay taxes, but we don’t have a right to never pay local sales taxes. Even cities can add a sales tax. So can the federal government.
The powers of federal gov’t were not limited forever to the short list in the section 8, as is proven by things like NASA and the department of education. The federal gov’t certainly could issue sales taxes and drivers licenses and require car insurance. But if they couldn’t do that, then neither could a state.
I ordinarily get frustrated with liberals for calling everything they want, policy-wise, a “right.” Conservatives, I thought, understood what a right is, and where it comes from. Not so, it seems.
I think the new software removed your argument and reasoning and point, leaving only a vague condescending insult.
1.) that the federal government can abolish state governments; and 2.) that an argument about the limits of federal authority has anything to do with “rights” then let me make the insult clear, rather than vague:
You are making a fool of yourself because you don’t know what the hell you’re talking about.
Didn’t the federal government abolish lots of state governments during Reconstruction? And I don’t understand 2) still. But never mind, I don’t care.
Tea partiers declare rights–usually in the form of freedom from–all the time. Where “Don’t Tread on Me” is the motto, expect a lot of talk of rights.
The single greatest failing of liberalism over the last 40 years has been a retreat from politics into the courts, where everything is described as a right, and then emphasized as a civil right, and then, in the advocacy equivalent of ALL CAPS WITH LOTS OF !!!!!!!!!, as a human right. So new things are invented out of whole cloth and grafted onto an ever-increasing list of rights: a right to privacy, a right to SSM, to Social Security, Medicare, and Medicaid, to public education, to health care, to never be offended.
All things that, as a matter of policy, governments can do, and perhaps should do, characterized as things that government must do. This conveniently ends political argument: “How can you support this deprivation of human rights, you monster?”
Time was, conservatives understood that much of this talk of rights was, at its core, pure BS, and understood that things that are actual “rights” are actually fairly few in number. They also understood that there are things that government cannot do, regardless of whether such things impinge on rights, because of limits on the reach of government, and referred to areas outside this reach as a “liberty interest” rather than a “right.”
Now, we have the two political sides, both describing their preferred policy outcomes in these terms, and thus, once again, raging away at one another, but each far outside the other’s hearing or even consciousness.
I find it all very depressing.
If states can only “give us more freedom and liberty, not less” then how can they possibly impose sales and property taxes when the Federal Government does not? You appear to be tripping over your own convoluted logic.
BTW, I get really annoyed with the Tea Party crowd acting as if their anti-tax stand is in any way related to the original Tea Party protesters. They were protesting arbitrary taxes that were imposed without representation and which did not even benefit the Colonies. Modern Tea Party protesters are just don’t want to pay anything despite the fact that they have ample representation (ok, maybe not residents of DC 😉 and take offense that not every penny of their taxes goes to benefit them personally.
But hey, like it or not taxes are Constitutional, so I fail to see what the big difference between a tax and a mandated purchase are. It is pretty clear that letting you choose how to spend your insurance money is vastly less restrictive than forcing you to just pay it all directly to the Government.
And local jurisdictions can impose taxes. Yes, I noticed the contradiction of saying “states can only give us more freedom and liberty, not less” and also accepting that states can impose taxes, which would seem to be less freedom and liberty. Perhaps I should have said states can only give us more rights, not less rights, and then noted that there is no right not to be taxed. So states aren’t taking away a right by imposing additional taxes. They aren’t doing anything that the federal government could not do. If there was a right not to be taxed, if the federal government were not allowed to tax people, then neither could states. But the federal government can tax, and that’s why states and local jurisdictions like cities and towns can also, adding local taxes as they see fit.
I agree with you about Tea Partiers, I sure ain’t one. I support free universal basic health care paid from taxes. One of the big differences between a tax and a mandated purchase is that the money goes to government with one, and to corporations (rich people) with the other. I don’t think we can be forced to give money to any corporations just for the privilege of living, though we can be forced to pay taxes to the government. And I think that is the principle that the court should be deciding on here, they should not be carrying on falsely about enumerated powers which is complete self-serving BS. They know it’s hogwash but they go through these long drawn out show trials just to insert themselves into the system and make themselves important. There doesn’t even need to be a General Welfare clause for the country to govern itself as it sees fit, but luckily there is such a clause, which ought to put all these shameful “states rights” arguments to rest, but lawyers would never admit that.
there are some basic points about the way the federal/state relationship in this country is structured. And your comments reveal that you do not understand them, despite several people’s attempts to explain how they apply in this case. So, there’s not really much point in further discussion.
I just thought it was settled 150 years ago. I think states are completely optional jurisdictions that are kept to make government better and more tailored to the local population and culture, with no more significance than counties, cities and towns. There was a brief period when they were sovereign states, but they gave up sovereignty when they joined the union.
No, you don’t.
n/t