How Obamacare dies: NOT buying health insurance is NOT Interstate Commerce
The new Republican Virginia Attorney General, Ken Cuccinelli was on C-SPAN and talked about the two unconstitutional provisions associated with Obamacare: Deem and Pass and the individual mandate. Deem and Pass was dropped by the Democrats this afternoon, so that issue is now moot (though Cuccinelli’s explanation is well worth the listen).
As for the individual mandate, this the clearest explanation of why it is unconstitutional and will likely be struck down by the courts. He explains that the Commerce Clause, allowing Congress to regulate interstate commerce is a limited power, and has been held as such by recent Supreme Court cases.
The video is not embeddable – link is here.
The money quote is at 4:15.
Not buying health insurance is not commerce.
In the other video, an idiot caller insults him and he politely tears her head off. That fun little nugget starts at 6:26.
Thanks to reader An American First for the heads-up on these.
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I have a clearer, more broadly acceptable argument against the individual mandate: No individual can be forced to purchase a product as a pre-requisite for legal good-standing. Health insurance is different from car insurance because, at least nominally, car ownership is a privilege which one chooses to take on, accepting the laws and regulations regarding ownership and safety.
The only reason I’m in favor of the current legislation is because the situation in this country — 50 million uninsured — is akin to the Third World in terms of access. Otherwise, it’s a complete sham that will only fill the pockets of for-profit insurance companies while penalizing the poor and those who aren’t satisfied with the product they’re being forced to buy.
Car insurance is required if you want to drive. Health insurance would be required if you are alive in America. It is so patently unconstitutional it is ridiculous. It is also one of the primary distinctions between the United States and Europe. They can essentially pass any legislation they want. We cannot. Our system preserves freedom and accounts for our unique place in world history.
In response to another comment. See in context »Why did you single out Europe? What about Australia, South America, and Asia? And are you speaking of all European nations, or just some/most of them? In fact, what qualifies you to make this statement?
And is it really all that great a right to go uninsured? Who actually uses that right besides young people who feel immortal?
Oh, and what if each individual state passed an insurance mandate. Would that be unconstitutional?
In response to another comment. See in context »Mandating insurance is definitely not an enumerated power that is delegated to the congress by the constitution, and is therefore a “reserved power” that is reserved to the people or the states under the Tenth amendment.
If each individual state passed it an insurance mandate it would definitely be constitutional. Massachusetts has already done this admirably, proving that states are political entities that are quite capable of developing health care solutions that are tailored to their specific local issues.
In response to another comment. See in context »The believe that you are incorrect. You can drive with or without car insurance. If you get in an accident, the effect of the accident on either vehicle wont change depending on whether or not you have insurance. The only reason car insurance is mandated is for economic protection. It doesn’t save lives, or prevent accidents, it merely insulates the system and insures that there is a safety net to repair the vehicles involved. It is an protection is the same manner as health insurance. Also, I guess selective service isn’t legal because the government mandates that you sign up for it. I also hope you’ve opted out of social security and medicare. Also, it’s also probably unconstitutional for you to be required to show ID to fly or drive.
In response to another comment. See in context »Also, instead of just spiting invective, why don’t you try breaking down the exact ways that a car insurance mandate is different from the insurance mandate. And a few other posters are correct, it’s a tax and congress can tax whatever it wants. Don’t pay your tax, go to jail. It sucks, but it most likely wont effect you or any of us arguing about this. It will effect a silent group of millions that can’t afford it or aren’t insurable. Add the tax break for business and individuals and th exchanges and there’s really nothing to worry about. I wish conservative would actually read the constitution. It’d blow heir minds. “OH S%*&! The census is in here!” It really is a joke.
In response to another comment. See in context »Yeah I agree…also wouldn’t slam
Europe…I used to travel a great deal and have been deadly sick in France where a doctor came to my hotel room…gave me some meds, asked if I wanted to go to a hospital, I declined, said he would check in tomorrow and left. No bills and a house call. In England again sick…a business partner called up his doctor…I went to see him…no bills and small pharmacy costs. I have been ill under a socialist state in Budapest before their freedom…really sick…thought pigs were running around my room…doctor came…but they had no medicine…just a vitamin shot. After they rid themselves of the commies they went with the french system.
We are really backward here about health care. It is not welfare…they pay for it and are healthier for it.
In response to another comment. See in context »thekingofcheap,
So I’m sitting here trying to think of product to counter your argument…stumped…there is car insurance but that’s tied to a product…I mean you have to buy the damn car first…and that’s a worry people signing up in the ambulance…it is a curious question and much as I’m opposed to the idea of forcing someone to buy something I guess it has to come from taxes of some sort…we do have to buy disability insurance when we have a job…that seems to work…I used it when I smashed up my leg…good thing to have. Yeah it’s tricky, mandate is a tricky word…maybe it could be done by expanding disability…do employers have to pay in disability? I don’t know. Damn Bill may have us on this one. There is a way Bill!
In response to another comment. See in context »Isn’t this why Baucus took such great care to set up the non-enrollment fine like a tax? I mean, if Obama hadn’t gotten elected by harping about not raising taxes on the middle class, he’d have just called this a tax and been done with it.
That being said, if you want to avoid paying the non-enrollment fee by signing a document which says you will not accept emergency medical treatment or a ride on the ambulance, I’m all for it as long as at least your kids are insured. A little social Darwinism never hurt anyone.
You guys are being total idiots about this. Congress has the power of the purse. If it wishes to levy a huge tax against everyone who hasn’t purchased health insurance – which is all a mandate really is – its completely constitutional to do so. They have full authority to set rates of taxation.
Deem and pass had already been determined to be completely constitutional by US courts. Obama is a constitutional scholar. You really think any part of Obamacare could be allowed to be unconstitutional? Grow up!
Currently, our “unique place” is that we spend by far the most on health care and receive middling care, at best. Good luck with that.
I wouldn’t call him a constitutional scholar. He’s a Harvard law grad who lectured some on the constitution. That being said, you’re on point that he wouldn’t stick anything blatantly unconstitutional in this bill. Sure, paleoconservatives like FOX’s Andrew Napolitano would consider it unconstitutional, but they also take constitutional umbrage to the EPA, Department of Education, restrictions on owning hand grenades, etc. Unfortunately for them, that’s just not how the Supreme Court interprets the constitution any more.
[i]Currently, our “unique place” is that we spend by far the most on health care and receive middling care, at best.[/i]
It’s not that it’s middling care, it’s just not been made universally available. Lots of dumbasses would say that you can go to the ER and get any care you need, that charities and communities and hospitals will find a way to pay for your chemo or transplant if you need one. Which is often true, and an indication that Americans are still incredibly generous people.
But how the hell does that help people discover polyps before they become tumors, or discover high cholesterol before they have a heart attack? It doesn’t.
In response to another comment. See in context »I wouldn’t call him a constitutional scholar. He’s a Harvard law grad who lectured some on the constitution.
That strikes me as the very definition of “constitutional scholar.” This is nothing more than the conservative (and, you know, slightly racist) tendency to dramatically underplay the President’s ample and stellar qualifications.
It’s not that it’s middling care, it’s just not been made universally available.
Even when available, it’s middling care. A substantially higher rate of medical errors than other countries. A higher rate of nosocomial infection in our hospitals. Waiting times just as long, or longer, as under so-called “socialism.”
Lots of dumbasses would say that you can go to the ER and get any care you need
ER’s frequently turn away those who they know can’t pay, so its double the dumbass argument. Look, I’m all for American exceptionalism, but shouldn’t we save it for the areas where we’re exceptional in a good way?
In response to another comment. See in context »That strikes me as the very definition of “constitutional scholar.” This is nothing more than the conservative (and, you know, slightly racist) tendency to dramatically underplay the President’s ample and stellar qualifications.
Lord. Dupray here has a law degree from a good school, too. Are you telling me he’s a teaching jaunt away from being a constitutional scholar?
As for me being a racist conservative – you’re an asshole. I’m a progressive (http://exiledonline.com/from-an-exiled-online-reader-vip-health-care-reform/) who voted for Obama, and I still don’t have any regrets about it. Christ. Now Dupray has a perfect example of silly liberals accusing anyone who criticizes the president of being a racist. Good job, bunghole.
In response to another comment. See in context »Well said Jack.
In response to another comment. See in context »When someone asks him to lecture to a series of classrooms on constitutional law? Yes!
So why be the guy who downplays the ample qualifications of a black man? I don’t get it.
In response to another comment. See in context »When someone asks him to lecture to a series of classrooms on constitutional law? Yes!
Then you have low standards or an inadequate frame of reference.
So why be the guy who downplays the ample qualifications of a black man? I don’t get it.
Dupray, it feels shitty to be on the other end of this unfounded accusation.
Payne, go to law school.
In response to another comment. See in context »How do you guys know I don’t teach law?
In response to another comment. See in context »WTF are you talking about? You said it yourself – studied at Harvard, asked to lecture on Constitutional law.
That makes him a scholar of the Constitution. But, you know, that’s fine. Keep downplaying the stellar qualifications of a black man and keep telling me I’m the asshole. I’m sure some of your best friends are black, too.
You’re acting like “Constitutional scholar” is a title akin to “Founding Father” or “new Jesus.” I’m pretty sure it just means “scholar who studied the Constitution”, which Obama is.
Oh, poor baby got his fee-fees hurt! All you have to do is stop downplaying the ample qualifications of a black man. Pretty simple, seems like. I promise as soon as you do I’ll stop accusing you of it.
In response to another comment. See in context »Taxing is Constitutional. Taxing someone simply because they fail to buy something is not. Medicare, etc. is just a tax on income. You earn money, you pay. If they want to levy an income tax on everybody to pay for Obamacare, they can do that. But they can’t tax you just because you breath oxygen.
In response to another comment. See in context »Clearly wrong. Nontheless, not taxing somebody if they do buy something, which is the exact same thing, is completely Constitutional.
Regardless, though, Congress has constitutional authority to set rates of taxation. Collecting a tax from people who don’t buy something is well within their authority. Even if it wasn’t, its easy enough to construe it as the equivalent inverse – raise taxes, then credit that exact amount to everyone who bought insurance.
Your constitutional “challenge” will go absolutely nowhere.
In response to another comment. See in context »Going to the ER does not exclude one from hospital costs. A couple of years ago my wife had some chest pains and went to the ER. She had only a part time job with no insurance. She spent 40 minutes in the hospital, received good care and it was determined she did not have a heart attack. Before leaving she had to purchase some meds, nitro, just in case at over $200 despite the fact that they cracked a bottle already and gave here some…that bottle went into the trash. The cost of the stay was over $2000.00. At the time we didn’t have the money…she recieved threats of law suits, harassed by boiler room collection agency and a phony law suit. Their abuse made her cry…Boy did I have fun with them…some gumba pretending to be a lawyer…ripped him a new one. We made a deal with the hospital directly and paid it off. Lots of States don’t have health plans for the poor and some like Oregon…use a lottery system on who gets covered. So the ER government picks up the tab is a myth.
It’s not that it’s a myth. It’s just poorly understood. It’s more a disagreement over terms. And it’s not like it’s standardized or anything. A friend of mine was in a terrible motorcycle accident when he was 20 and needed to be life-flighted to a hospital where he was in a coma for several days. The whole thing nearly cost $100,000, and the hospital wound up eating the bill. It all depends on your circumstances, what state you live in, and the hospital’s policies.
I’m not defending the current system or anything. I’m just saying that if you need emergency healthcare – which America is basically the best in the world at – you will get it. Whether it bankrupts you or not depends on a lot of things, and this bill helps address a lot of that.
In response to another comment. See in context »1) From what basis do you think “America is the best in the world” at emergency health care?
2) Why do you think “you’ll get it” when you walk into an ER? ER’s have already been turning away people they know can’t afford it, with frequently fatalresults.
In response to another comment. See in context »You have been making a lot of incorrect assumptions here. I’m not saying that our emergency rooms aren’t overcrowded or that this reform won’t hugely benefit them. I’m saying that when you actually do get emergency care in America, it’s pretty much as good as it gets.
In response to another comment. See in context »And, again, I’m asking you on what basis you arrive at that conclusion. You’ve admitted that American ER’s are frequently overcrowded. What, in your estimation, is the general quality of care delivered by overstressed, overworked personnel and facilities? Why should I believe it to be “as good as it gets?”
In response to another comment. See in context »Boy did I have fun with them…some gumba pretending to be a lawyer…ripped him a new one.
Um, might want to take the 5th on that little adventure libtree. Practicing law without a license is a crime.
Just saying.
In response to another comment. See in context »No, the collector was pretending to be a lawyer.
In response to another comment. See in context »Bill,
It sure is as I reminded the shit on the phone and so is sending out an official looking document from a State one is not practicing in or even filed…the county court house was not amused. I did not pretend to be a lawyer…the guy on the phone did…I was just aware of these predatory collection agencies and looked these guys up. It was pretty funny, he started with lots of jargon and ended up sounding like someone out of the Sopranos.
In response to another comment. See in context »Sorry man – misread the comment. Nice job calling him out on it then!
In response to another comment. See in context »1. geez, makes me ashamed it takes a konservasaurus to make this valid point on the legality of the mandate… as i’ve posted elsewhere, this ‘oversight’ is driving me nuts…
2. the poster who said ‘oh, they wouldn’t ebber, nebber put nothin’ unconstitootinal in a bill…’ is a moron… grow the fuck up…
they do that shit ALL THE TIME: the constitution is now looked upon as something to be defeated, to be worked around, to be ignored…
(tell me about quaint shit like kongress declaring war, etc…)
as far as i’m concerned the TOTALLY anti-constitutional -but ACCEPTED!- practice of so-called ‘executive signing statements’ is PRIMA FACIE evidence of a dictatorship…
(NEVERMIND ’secret’ exec signing statements, are you fucking kidding me ? ? ? THIS is America ? no, its amerika…)
3. as i’ve said a number of times: the motto of this health insurance bailout should be: THEY DIDN’T EVEN TRY ! ! !
IF saint obama had put his popularity, political goodwill, and bully pulpit towards single-payer (or public option, or medicare-for-all), HE WOULD BE A HERO TO 90% of us…
(oh, but -oopsy daisy- guess he and the dem’rats wouldn’t get millions of the health insurance parasites and big pharmas donations…)
instead, HE DECIDED to WASTE ALL his political chips on BAILING OUT MILLIONAIRE masters of the universe…
fuck him…
art guerrilla
aka ann archy
eof
The mandate is the potential achilles heel – but it’s far from a forgone conclusion.
On the whole health insurance v. car insurance thing, there is a difference. While the state can mandate you get auto insurance if you wish to drive your car, the state cannot mandate that you buy the car. if you don’t want to buy auto insurance, don’t buy the car.
It’s a bit different with health insurance as your body kind of comes with the package and you can’t opt to not get one. So, can the government order you to insure yourself? It is far from clear.
The remarkable part of the opposition argument is that the mandate is the only thing standing between the private insurance model continuing for a bit longer or crashing in a relatively short time. If the mandate goes (which, by the way, would not tube Obamacare- it would simply tube the health insurance companies) the private insurance model will end soon and all we will have left is the government to step in as the sole payer system with the exception of those who can afford to buy a private policy.
Kind of a damned if you do – damned if you don’t for opposition approach don’t you think? The private model can’t survive without the mandate, yet the opponents are fast to argue that the mandates are wrong.
[...] How Obamacare dies: NOT buying health insurance is NOT Interstate … [...]
It never ceases to amaze me the lengths that pro-state, freedom-hating cheerleaders will go to in order to justify expanding state power over individuals.
Uh…I think you got confused. You’re suppose to be for State rights and against expanded federal powers. You need to bone up on the Tea Party manual.
In response to another comment. See in context »Today the health care industry, next Obama is going to take on the excessive costs of the law industry…your next Rick….so enjoy your celebrations tonight with your comrades, abortionists, and hordes of illegal aliens
In response to another comment. See in context »Hey Andy, the Russian word for comrade is ‘tovarish.’ We’re all going to start learning Russian soon, for obvious reasons. Rick already knows ‘tovarish’ because his 90’s X-Men cartoon featured the Russian mutant “Colossus,” whose strength and durability represented communist superiorism.
In response to another comment. See in context »The health care bill creates 159 new government agencies to regulate insurance and medical care for Americans.
And as Obama-cuban-style health care destroys private sector insurance and front line medical services, even more of these gestapo run government agencies will be needed
http://newsmax.com/InsideCover/tom-price-healthcare-democrats/2010/03/20/id/353358
Senate changes rules to protect death panels….they have inserted fine print to make a super majority vote of 67 to change their gestapo death panels:
“”As the chair has confirmed, rule 22, paragraph 2, of the standing rules of the Senate, the necessary affirmative vote shall be two-thirds of the senators present and voting. Let me go to the bill before us, because buried deep within the over 2,000 pages of this bill, we find a rather substantial change to the standing rules of the Senate… Clearly a rule change. ”
http://www.wnd.com/index.php?fa=PAGE.view&pageId=119775
My concern is that the mandate was included as poison pill to delay or do away with serious healthcare reform. I wouldn’t put it past the corporate toady dems to include something they knew would end up being a win/win for the industry, at least for the next few years. A generous parting gift to their friends who have grown rich at the expense of the sick.
[...] How Obamacare dies: NOT buying health insurance is NOT Interstate … [...]
I just stopped by to do my “I told you so” dance. I told you we’d pull it off!
Bill you should check out David Frum’s piece today, “Waterloo”
http://www.frumforum.com/waterloo
Congrats Brian. My hat is off to you and your gang – you did it. Now brace yourself for what comes next. Fortunately politics is pretty dynamic; it is all just battles in a never ending war. See you on the next battlefield!
In response to another comment. See in context »[...] YesterdayIs Obamacare's mandate constitutional?Bill DuprayAmerican Conservative11 hours agoHealth care reform is going to pass, for better or [...]
So how is Obama’s Waterloo working out for you today Mr Dupray?
Remember just last week you told me that 2008 was “ancient history” and “utterly irrelevant”? Would you like to back that up?
Or is the Scott Brown Revolution so great that we just haven’t been hammered by its effects yet?
Congratulations, your guys won it for now, and unlike many on the left (especially the left) and the right, I am always gracious in defeat. However, I maintain that 2008 was ancient history and this November will continue the trend that began in the fall: There will be a wipeout of historic proportions.
Hope you’ll come back and congratulate me when that happens.
In response to another comment. See in context »As health care goes so goes DOMA, DADT, banking regulation, and immigration. In Obama’s next term we’ll get to cap ‘n trade again. See you on the battle field, come well armored and never underestimate the prowess of a Chicago community organizer again or those who got his back!
In response to another comment. See in context »The “trend” that began in the fall was losses by Republicans in 3 out of 4 of Congress’s special elections. You better hope that’s not the trend that continues.
Dems will lose seats. I doubt Republicans will pick up enough to control either house. No nation has ever rolled back national health care systems. Conservatives in those nations don’t even try. Conservatives in this one don’t even try to roll back Medicare; indeed, they promise (and deliver, Part D!) its expansion. The age of American health care is here and it’s not going anywhere.
In response to another comment. See in context »We penalize people for not purchasing something all the time. The mortgage tax deduction penalizes me for not being a home owner. Where is your outrage, where is your threat to sue on my behalf?
C’mon Brian. The deduction is for people who have bought a house. They chose to buy, they get the tax break.
The correct analogy in your case would be they slapped a new tax on you because you didn’t buy a house. Same deal with health insurance. Those who don’t buy it get taxed.
In response to another comment. See in context »Still using tax policy as a form of social engineering. Where is your outrage over that?
In response to another comment. See in context »No outrage. Both sides do it and it is perfectly Constitutional. This one particular trick has never been done before and it is not. The reason is that there really are limits to what the government can do. This is an example.
In response to another comment. See in context »As an attorney I’m sure you know that Congress’ power to tax are broad and far reaching, unlikely the high court will rule against this bill. Your following bad course here for your party, if you want to win over the American people roll your sleeves up and get to work on fixing American’s problems.
In response to another comment. See in context »Oh, sleeves are rolled and we are working on fixing Problem Number 1 – Obamacare. Personally, you can check back here for the next few years and check our efforts to hobble, repeal, defund and otherwise remove this cancer, root and branch. The game is on. We’re just getting started. This issue will never go away.
In response to another comment. See in context »You gotta get elected first.
In response to another comment. See in context »Bush proved it takes more than rolling up your sleeves to get shit done.
Good luck though. Have fun campaigning on “I’m going to make sure insurers can drop your coverage!” “I’m going to make sure insurers can reject you for pre-existing conditions!”
It will be interesting to watch you guys try to sell that.
In response to another comment. See in context »But they did slap a tax on him because he didn’t buy a house. That’s exactly what they did! There’s absolutely no difference between a tax rebate for homeowners and a “you didn’t buy a house” tax. They’re the exact same thing.
In response to another comment. See in context »Justin, getting a tax deduction is not the same thing as raising taxes on someone who didn’t get it. Your wanting this to be true does not make it so. It is logic, not opinion.
Giving a business a tax break on a business lunch is not the same as raising taxes on your lunch at Burger King.
In response to another comment. See in context »It’s literally exactly the same. How could it be different? Two scenarios:
“Hi, everybody, new tax: if you didn’t own health insurance this year, your taxes are $700 higher.”
“Hi, everybody, new tax: we’ve raised taxes by $700 this year. However, there’s a new credit – if you owned health insurance this year, you get a $700 credit.”
These two schemes are exactly the same. Identical! You can do the math yourself if you don’t believe me. Add up the total tax increase for each class of person in each scenario, and see for yourself.
A tax credit for compliance is literally the exact same thing as a tax levy for non-compliance. Identical in every way, except perception.
In response to another comment. See in context »The youtube links to Ken C. are broken. Could someone post fixed links?
Thank you!