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January 14, 2010

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Sammy Re

"If insurance companies can't look at pre-existing conditions when writing insurance, no one but a fool will buy insurance until he is on the way to the Emergency Room or the hospital."

It may be that health insurance companies can not deny coverage based on pre-existing conditions, but they can disallow reimbursement for a reasonable period of time (e.g. 6 months) after issuance of a new policy. This would keep people from waiting until after being diagnosed with a significant condition.

Rob Crawford

But I am nonetheless fairly confident that the justices would, and should, defer to the political branches here. The alternative would be to strike down the president's signature initiative -- something that no Court has done in more than 70 years, for good reason.

So if a president and Congress turn the imposition of censorship into their "signature initiative", the Supreme Court should defer to them?

bgates

something that no Court has done in more than 70 years since the last time the political branches were this authoritarian.

Also,
people would buy insurance once generous expensive government subsidies were in place

Steve C.

I generally can read something written by Stuart Taylor and come away saying, "I get your point and it's a well made argument, but I don't agree." But in this case he is wrong. Whether or not to levy a mandate to purchase insurance is not a "political question". It's a question of fundamental constitutional law.

Can the national government force people to purchase a service from a private company under penalty of law? As Rob Crawford notes, this sort of defense implies that any dumb idea supported by the President and the Congress must be presumed valid even if it conflicts with the original definition of the federal government as being of limited and defined powers.

Maybe it's time once more for the Supreme Court to exercise the sound judgment they did 70 years ago and draw a bright line limit to federal power.

Old Lurker

It was rumored yesterday and seems to have come to pass per the news just now. The "fight" over the new tax on cadillac health plans has been resolved with the agreement that union members and state and local employees will be exempt from the tax until 2017, but non union members, and non government workers will have to pay it.

IANAL, but how is that legal or constitutional?

Thomas Collins

See LUN for an article discussing what Old Lurker was discussing in his post.

Rob Crawford

IANAL, but how is that legal or constitutional?

Does it really matter if it is?

If you look at what "The Rule of Law" means, this bill is about as far from it as can be conceived.

Old Lurker

Here is what Fox printed:

"A senior Democratic official speaking on background told Fox News that the threshold for exemption would be raised from $23,000 to $24,000 per family but would remain the same at $8,500 for singles with high-value plans. Dental and vision plans would be removed from that calculation, however.

State and local workers and union members are exempted until 2017. A Democratic source with close union contacts said labor leaders are not particularly happy with the tentative deal, but are much less angry than they were at the previous plan."

Old Lurker

Rhetorical question, Rob. Just being cute.

Appalled

OL:

Union retirement programs have been subject to different qualified retirement plan effective dates for years. Arguably, something like this is similar, in that pension plan qualification is what protects employees from realizing tax on the value of pension contributions based on their behalf. I don't know that answers your question of how -- just indicates that the distinction has been in tax law for quite a while.

TM:

If the government could take you to jail for failing to buy health insurance, or make you pay a fine to the court (as opposed to an excise tax), then Will might have a point. But I thought the "penalty" of failing to have insurance was a tax increase. Congress certainly has the ability to levy taxes under the Constitution, and courtesy of the 16th Amendment, there is little restriction on that ability.

bgates

there is little restriction on that ability

So we're living in a police state, then. Congress can't put you in jail for X, but it can impose a trillion-dollar fine for X, and impose a life sentence if you don't pay. X can equal buying insurance, burning a flag, burning gasoline, or sodomy, depending on the whims of our lords and masters.

Fresh Air

So can the genius Stu Taylor kindly tell us of another contract where one private party is compelled to purchase something from another party merely as a matter of being a citizen? Say, within the last, I don't know...70 years or something?

Thought not.

Yet another liberal masquerading as an even-handed analyst, further regurgitated by a weenie masquerading as a conservative.

Janet

I feel like my family is so screwed under this administration...and all of the lib. agenda. We are not union members, we are not Amish, we don't live in Nebraska. We have faithfully paid our 30 yr. mortgage. We saved up to send our kids to college - which one so far has gotten into on her own merits...not skin color or connections. Really, if everyone is a victim then no one is a victim. I feel like we are the only non-victims left...and everyone in the pack of greedy victims want a piece of us.

Old Lurker

I take your point, Appalled. It still stinks. And to include state and local workers just makes it galling.

matt

so government employees don't pay into social security and are now getting another exemption, and we find that average salaries are much higher than in the private sector. The bureaucrats have made themselves the master class.

JM Hanes

Raich and other decisions like Kelo, are the culmination of a series of incremental precedents which have steadily expanded the scope of the commerce clause and the concept of public use respectively, beyond recognition.

Rolling back that tide will require more than most of the vaguely posited constitutional arguments I've heard to date, as formulated, for example, by Orrin Hatch:

"Congress can regulate commercial activities in which people choose to engage, but cannot require that they engage in those commercial activities."
What's missing is legal clarity on the basis for distinguishing between commercial enterprise/production, voluntary consumption and consumers qua consumers, not commercial entities. That would certainly require revisiting the medical marijuana opinion, when those lines were finally smudged out of existence.

The "coherent limits" argument seems a potential prospect for doing mounting a challenge, and IMO the most important one, but I'm not precisely sure what the actual vehicle for that case would be. I assume it would have to be put forward by State Attys General. Consumers themselves, either as individuals or as a class, would seem to have the same problem of standing that the birthers have run up against in terms of having to establish both substantive and unusual harm ex post facto.

I wonder if there might be fruitful ground to till in the oxymoronic combination inherent in "penalty tax," which seem to me to be two distinct concepts? Unlike taxation, does the imposition of penalties on the basis of a vastly expanded, legislatively engendered mandate for coercion essentially create an entirely new order of civil law, contraindicated, perhaps, by common law?

The flagrant discrimination on almost every possible front underlying the bill's massive, abitrary, internally inconsistent, matrix of exemptions, seems to me to be the most obvious route for challenging the bill's constiutionality. It is not, however, one that addresses the central issue of limiting government powers. Quite the contrary, one has to accept, as given, the government's power to impose the relevant penalties in order to argue discriminatory application.

The "signature issue" bit is a bizarre proxy for legislative intent.

JM Hanes

Forgot the disclaimer, IANOL!

JM Hanes

Misspelled the disclaimer! IANAL!

Thomas Collins

Appalled, I agree that union pension plans are under certain circumstances provided different treatment under pension laws. However, non-unionized employees can take advantage of the income exclusion for employer contributions to employee pension plans. If these news articles are correct, union plans get an exemption for several years for a class of tax (the Volkswagen tax [I call it Volkswagen, not Cadillac, because although these plans are fine, I define a Cadillac plan as a plan under which a Saudi potentate goes with his entourage to the Cleveland Clinic for heart treatment and commandeers virtually an entire hotel for his folks]) which exemption is not available for non-union plans.

Mr. Hope and Change. Hope for the unions (that the exemption will be extended and extended) and spare change for the rest of us!

Old Lurker

You write as well as many who are, JMH.

Ignatz

--You write as well as many who are, JMH.--

I'm assuming that was supposed to be a complement, OL.
But having read innumerable briefs and opinions over the years I'm not sure.

Old Lurker

You are right about that, Iggy. My friend runs one of the fancy DC lawfirms...always drawing from the top grads from the top schools. In the past, outstanding writing skills were assumed from those grads, but lately they have had to start reviewing writing samples before sending the offers out.

Ignatz

--Congress certainly has the ability to levy taxes under the Constitution, and courtesy of the 16th Amendment, there is little restriction on that ability.--

Including a tax for not engaging in an activity?
I don't think calling the penalty (why the scare quotes Appalled?) a tax escapes Will's Constitutional objection which revolves around the requirement that all citizens engage in a particular economic activity regardless of how the penalty for not doing so is characterized.

Appalled

TC:

I agree that stinks as a matter of policy -- but I doubt it is unconstitutional.

JMH:

I think too much of the constitutionality argument is being focused on the commerce clause, and not enough on Congress taxation power, which is subject only to the limitation that the tax promote the general welfare. I just do not see a Supreme Court overturning a Congressional finding that broad based legislation like this is not intended to address the general welfare. (There is a lot of chatter in the Volokh Conspiracy on this issue which I have LUN-ed.) What's maddening is that there are a number of state attorneys general writing correspondence on this issue, and none discuss in any way Congress' power to tax.

JM Hanes

Appalled:

I was pondering the ramifications of distinguishing between a penalty and a tax, but I haven't checked out Volokh yet.

Appalled

Ignatz -- Will's argument is Commerce Cause Based. Congress power of taxation is a separate enumerated power, and is based on the 16th Amendment, as well as the original document itself. Take a look at the Volokh stuff I have as an LUN, which is probably the most literate defense of the "it's unconstitutional" opinion. But note also that the author recognizes that this opinion flies in the face of current Supreme Court precedent.

JM Hanes

OL:

One of the most disheartening things about the Libby trial was how abysmal and sloppy the Fitzgerald briefs were, in almost every way, compared to the clarity of Libby's filings.

Appalled

JMH:

You are on the right track, because there is a distinction, and it crops up in the law from time to time. I have encountered it, oddly enouh, in issues involving bankruptcy, because a tax and a penalty sometimeshave different priorities in the bankruptcy estate.

JM Hanes

Appalled:

If it's defined as a tax, I'd guess you'd have to go for unconstitutional discrimination. Distinguishing that from, say, progressive discrimination, could be a tricky proposition. It would also leave the federal powers question out of the equation. I wouldn't be surprised if that's why the AGs are concentrating on other alternatives.

clarice

I believe the SCOTUS has already ruled that the federal govt cannot regulate wages and hours of state employees under the commerce clause. That being so, I don't see how the govt can compel them to buy health insurance either. They are not employed in a way that brings them into interstate commerce.

Ignatz

--Ignatz -- Will's argument is Commerce Cause Based.--

That's my point Applalled.
His contention is that the commerce clause does not empower congress to force the citizenry to engage in a particular private economic activity, especially one that is expressly reserved to the regulation of the states; private health insurance.
Whether the penalty for not complying is called a tax or fine does not bear on that point.

Extraneus

Simple solution: eliminate the third party.

JM Hanes

Ignatz:

If the defining the penalty as a tax passes muster, there's no basis for a commerce clause challenge.

JM Hanes

Ignatz: I was describing what I believe is the argument above, not asserting it.

Old Lurker

Simpler solution: eliminate the Democrat Party.

Danube of Thought

I sent George Will the following e-mail this morning;

"Thanks for your concise discussion of the limits on the reach of the commerce clause.

"I believe that the individual mandate would also violate the protection of "liberty" under the 14th Amendment under existing Supreme Court precedents. The Court has already held that the 14th confers a "liberty" right to send a child to private school; to teach a foreign language in a parochial school; to marry; to procreate; and to use contraceptives. Surely one has the right to refrain from buying health insurance."

Still awaiting his reply...

Extraneus

Heh, good point. It's a wonder that nobody on the Republican side has developed a simple freedom argument. I think people would get that.

"Does this policy proposal preserve our freedoms, or does it reduce them?"

"Why do the Democrats want to limit our freedoms?"

"Why don't we have the freedom to buy insurance from whichever company we like best?"

Etc., etc.

Even people who don't feel knowledgeable about the Founding [ahem, Mika] or the Constitution would warm to that simple argument.

Somebody with a megaphone should take that on. It'll be easy.

Danube of Thought

I think Appalled's analysis is wrong. There is little doubt that the congress could levy a tax, collect it, and then say that it is using the proceeds to purchase insurance policies for the uninsured. But that is not what it proposes to do: it is saying, "you will spend your money to purchase a product from a private entity according to our direction, or we will fine you." And anonymous senior congressional staff had made it very clear that the penalty for refusal to pay the fine is, indeed, jail.

Note, among other things, that once taxes are collected, one never knows to what purposes the proceeds are being put: money being fungible, once collected it gets disbursed according to the whims of each succeeding congress. (Witness the telephone tax, enacted to finance the Spanish-American War and repealed in 2005.)

centralcal

O/T: But, Red State has another video of the attack on the Weekly Standard reporter.

In this one, Meehan seems to deliberately "target" John following his question to Coakley. He changes his position from the left (in the video frame) next to Coakley and skulks quietly around to the right (in the video frame, behind McCormack).

After Coakley answers another reporter's question and begins to walk away, Meehan strikes.

This video shows clearly how deliberate it was. LUN

Janet

Wow centralcal...no getting around it, Meehan is a thug.

Extraneus

No wonder he apologized before that one came out.

I know squaredance was taken to task, but they really do hate us. If they could get away with it, they'd be a lot worse.

Fortunately, they don't have the gun advantage, at least where guns are still legal.

Somebody in DC should start a Self Defense for Conservatives class.

Danube of Thought

It is probably worth pointing out that it took an amendment to the constitution (the 16th) to provide for a tax on income. The fine for failure to buy health insurance does not even purport to be related to income.

Fresh Air

It strikes me as entirely plausible that within the next two years, Tea Party representatives will have begun circulating petitions to amend the constitution. We badly need one to reign in the Commerce Clause, and I would argue term limits as well. These would both be extremely popular and difficult to argue against. But moreover, they would be exceptionally effective at driving home the point that the Media/Plutocrats need to be cuffed, muzzled and, if necessary, shot by the unconsenting citizenry.

If one of the conservative justices were to drop dead of a heart attack in the next two years, I think we could have major riots on our hands as the statists try to expand their illegitimate claims of authority to regulate every facet of American lives.

On the other hand, it's entirely possible the tide will be reversed by chastening the Mediacrats this year, then walloping them in 2012, with an added asskicking of the Flower Children Teleologists like Boxer, Pelosi, etc., etc.

Major swings in the Congress almost always occur when seats open up, but not until. A serious smackdown this year will prompt a great many resignations as the rats leave the ship to take on ambassadorships and other cushy sinecures at places like the World Bank, courtesy of the Zero Full Employment for Liberals program.

We're really on the knife edge, waiting for the butterfly in South Boston to flap his wings...

DebinNC

Wow, that video should end any thought of Meehan's appointment to that Board of Whatever. If he has to be confirmed, he's toast, or we're in worse shape than I feared.

DebinNC

Somebody in DC should start a Self Defense for Conservatives class.

Thank goodness McCormack didn't retaliate. Meehan's "apology" referred to regretting "my part in it"...as if McCormack had something to apologize for too. He doesn't, as the video shows.

Extraneus

I'd have liked to see him get up and give Meehan a mawashi geri to the side of the head.

Janet

If he has to be confirmed, he's toast, or we're in worse shape than I feared.

We've got a safe school czar that started an organization that advocates fisting, child-adult sex, sexual experimentation for elementary age children, children having sex with strangers in public restrooms,...
We hit bottom awhile ago and have been digging ever since.

centralcal

Janet, Deb, Ext: A second watching shows him (Meehan) turning his back to whomever is filming and slightly leaning in to his cohort, also "proecting" the candidate Coakley. Words are exchanged and I think he was indicating his planned assault to the other fellow. The body language would seem to indicate so.

The purple sweater under his suit coat is so apropos. The Democrat party is almost nothing but thugs anymore.

glasater

CC--

I noticed that 'comment' to the other fellow also. Thanks for picking up on it.

centralcal

glasater: I hope ALL who watch it pick up on it. It is so obvious that he is planning to do something. He didn't like the question, the candidate didn't want to take the question, so . . . let's send a "message" to the questioner.

Extraneus

It was the after-the-fact body language that told the story in my opinion. McCormack had his hands raised, to show he wasn't being aggressive, trying to get away from Meehan, and Meehan was on him the whole time.

Mae geri was probably more appropriate at that point, or perhaps a knee, since they were so close.

narciso

Speaking of someone who really didn't even get the cliff notes for the Constitution, in the LUN, the line 'if she were a plant. . .'

Melinda Romanoff

narciso-

She is a genius for the gaffe, isn't she? A student of Biden, she is.

Pofarmer

and courtesy of the 16th Amendment, there is little restriction on that ability.

The restriction would be the second.

Fresh Air

Brown +4 in new poll by Suffolk News/Ch. 7.

narciso

We laugh at that,but then we see this aspect of her handywork and the humor fades real quickly, in the LUN

Melinda Romanoff

Dorothy's take down of this whole sham was electrifying when she first wrote it. She was probably Paul Gigot's best hire. None of that sordid history os the least bit funny.

But Coakley's lack of knowledge of fifth grade civics is pretty funny.

Sue

How accurate is Suffolk?

cathyf
There is little doubt that the congress could levy a tax, collect it, and then say that it is using the proceeds to purchase insurance policies for the uninsured.
You can argue that this is almost exactly what the social security tax is. Levy a tax, collect it, and then say that they are using the proceeds to purchase retirement annuities.
Fresh Air

Sue--

Who knows? The margin of error is supposedly +-4, so it's still technically a toss-up. But from every single poll and anecdote regarding internals, this race is moving towards Brown in a big way.

Danube of Thought

True, Cathyf, but the tax is in the first instance imposed on income. If you elect to be a beach bum--a hugely undervalued American right, in my opinion--you need not pay either an income tax or a payroll tax. But if this bill passes they can come and take you away from Windansea Beach just because you're an American.

My wife is the most wonderful person on earth. She never had to pay a payroll tax. But they will ding her daughters for this one.

bgates

Could some of you Mass residents explain this for me? Here's my understanding of the race:

Martha Coakley is a woman who wouldn't prosecute a man for raping a 23-month-old baby girl with a hot curling iron (he's now doing consecutive life sentences), blocked a brain-dead assault victim from saving someone else's life by becoming a heart donor, and kept an obviously innocent man in jail for years to posture as tough on crime.

Her office is threatening prosecution against garden clubs, but she literally stood and watched as her staff assaulted a journalist. She's Attorney General, but the state police have endorsed the other guy.

During the rare moments in the campaign that she hasn't been on vacation, she's managed to insult Fenway fans and Catholics, during a race in Massachusetts, which is a word she can't spell.

Despite all this, the worst-case scenario for the Democrats is that she loses by about four.

So I guess my question is, weren't there any Democrats willing to say, "As a fellow Democrat, I share Martha's contempt for liberty, but I lack the very many appalling characteristics that will repulse anyone who has access to information outside of Party-approved channels, so make me Senator instead"?

narciso

Yep, she's a real 'rocket surgeon' yes that is not a typo. Like I said before, she's a weakstandard bearer in a terrible economy, and I think Brown had make the field goal,
crossing more than one metaphor.

bgates

Well, narciso, it's not over 'til it's over the fat lady.

And she's not a "weak standard bearer", she's a Weekly Standard beater.

glasater

Could someone please print up bgates' comment @12:22 AM in a leaflet and hand it out at grocery stores in the bluest areas of MA?

Rocco--Jane?

caro

bgates! Masterful.

Fresh "Levi" Air

I am in awe.

Porchlight

Good morning! Robert Costa says that the Suffolk poll, which has Brown +4, is "one of the best, if not the best, Bay State poll."

Suffolk polled 500 likely voters and the sample was designed to match voter turnout (based on registration perhaps?): 39% Dem, 15% Republican and 45% unenrolled (independent).

Costa at NRO

Porchlight

oops, sorry, thought I closed that tag

Jane

Someone who can link the location needs to send bgates' comment @12:22 AM to Insty. Or give me the link and I will. That sums up the race brilliantly.

And then I will tweet it, and print it out.

Jane

In MA dems always cheat.

Rocco

Great poll results with only 1% undecided. The Independents have made up their minds! I heard that the first question the pollsters asked was, are you aware of the upcoming senate race? If they knew the answer, the next question asked them what the date was. If they knew that answer, the poll was conducted.

Michele McPhee has been urging her listeners to wave their wallet when they see a Brown bumper sticker or yard sign and then safely return it to your pocket or purse. So last night I waved my wallet whenever someone honked or waved. People loved it and more and more cars would honk, beep and wave when I waved my wallet at them. I put it away safely, when it got a little darker.

Woke up to a Brown sign in neighbors yard this morning, a nice surprise.

Rocco

With friends like this

Scott Brown may not share the political values of most of the state and may lack the experience for the US Senate. And, let’s be honest, his nights probably aren’t tied up with Mensa meetings. But he’s out there hustling, meeting, asking, and convincing. People respect that, a lot.

I think the Kennedy family share in most of the blame. They were very late endorsing Coakley because they were upset with her for announcing her candidacy so soon.

Jane

Rocco,

Can you email me at fwdaj@live.com? Are you phone banking this weekend?

centralcal

bgates: excellent summary of Mah-tha!

cathyf

Jane -- the link is

http://justoneminute.typepad.com/main/2010/01/constitutionality-of-the-health-care-mandate.html?cid=6a00d83451b2aa69e2012876d8652d970c#comment-6a00d83451b2aa69e2012876d8652d970c

(for future reference, go up to the comment, and the direct link to it is the timestamp -- in this case "January 15, 2010 at 12:22 AM")

Appalled

The LUN addresses the tax consitutionality issues from a solidly conservative viewpoint. I don't know that I agree in its entirety, biut it at least takes a pass at the issue. My thought is that the penalty could be desined in a way that passes constitutional muster, and not be subject to apportionment among the states, simply by designing the penalty as a phase out of deductions, or tying it to income.

As for the Commerce Clause, to the extent the bill imposes a jail sentence or civil penalty (other than a tax) for failure to buy insurance, it would at the very least violate the intent of the framers, and probably violate current precedent.

As for the tax issue -- "framers" would include those who put together the 16th Amendment -- something that ought to be remembered.

rse

Rocco-

I was just about to link that same editorial.

The comments make it clear that that MENSA swipe helped Brown further.

It just reenforced the condescension that has become anathema to voters.

DebinNC

FOX: "House and Senate negotiators resumed marathon [health care] talks with Obama at the White House around 9 p.m. Thursday. The president left the Cabinet Room meeting shortly after 1 a.m. Friday and the session ended about 25 minutes later.... The meeting came after most of the same lawmakers spent more than eight hours at the White House on Wednesday trying to hammer out a deal."

Are the Dems trying to get a bill signed before the MA polls close on Tues.? Given the union carve outs and other changes (and the object lesson of Ben Nelson being booed out of the NE pizza parlor this week) is that possible?

cathyf

Sorry, the url got cut off... Go up to the comment and right-click (or CTRL-leftclick if a mac with no right button) on the timestamp and a menu will come up. One of the options should be something link "copy link address" (wording differs by browser) and that puts the link into the paste buffer and then you can paste it into an email or twitter or whatever. One thing to be aware of is that the link is 205 characters long not sure if you can tweet it...

Rocco

rse

I didn't read the comments...thanks. Severin calls it the Boston Gob.

Jane....done

Jane

Thanks Cathy and Rocco.

I sent it to Glenn (oops - now with the wrong link).

Someone else should do it as well with the right link. It is too good to miss.

caro

Jane, I made a tiny link to the bgates comment so you can tweet.

http://tiny.cc/2RGVq

caro

Jane, I made a tiny link to the bgates comment so you can tweet.

http://tiny.cc/2RGVq

caro

or maybe not!
carp.

glasater

Good morning Caro--

Here's a link to bgates' comment.

It worked on the browser I use fwiw.

Danube of Thought

"...the penalty could be designed in a way that passes constitutional muster, and not be subject to apportionment among the states, simply by designing the penalty as a phase out of deductions, or tying it to income."

No one is really aware of exactly what's in the bill, but it's my current understanding that the penalty is not tied to income at all, although the subsidies are.

Having read all that I can find on the subject, I think that if I were on a federal appellate panel I would feel compelled by the precedents to uphold the bill against a commerce-clause challenge, but if I were a Supreme Court justice I would not feel that striking it down was a departure from principles of stare decisis. I think that, because of the compulsion to act in a commercial way (as opposed to regulating such actions), it could properly be viewed as a case of first impression.

The comments to this entry are closed.

Wilson/Plame