Constitutional challenge to the health care reform bill...

[Erinos Wrysing]

http://www.snopes.com/politics/soapbox/connelly.asp

I posted the snopes version just to coddle the local lefties here!

[Ddrak]

I'm sure it will play out in the USSC, but to me it sounds like the GOP is just butthurt and crying like a whiny bitch whether it ends up passing or not. They're going to have a hard time in 2 years countering the argument that they are fighting *against* everyone having health care.

The snopes article was definitely a good thing to link - it gives good play to both sides. I think there's fair points on both sides but none of the people commenting there really matter.

Dd

[Partha]

Five words:

Second Militia Act of 1792.

[Kulaf]

Five words:

Second Militia Act of 1792.

No clue what point you are trying to make. The Presidents power over state militia is clearly spelled out in Article II Section 2.

[Fallakin Kuvari]

They're going to have a hard time in 2 years countering the argument that they are fighting *against* everyone having health care.

I don't think they are, considering the program doesn't kick in for 4 years.

[Partha]

Five words:

Second Militia Act of 1792.

No clue what point you are trying to make. The Presidents power over state militia is clearly spelled out in Article II Section 2.

From the Second Militia Act of 1792:

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Clearly, the government has the power to compel the citizenry to buy things, since this never ever ever got challenged by anyone.

But I REALLY want them to overturn this. No, seriously, because then the VA goes away, too.

IX. And be it further enacted That if any person whether officer or solder, belonging to the militia of any state, and called out into the service of the United States, be wounded or disabled, while in actual service, he shall be taken care of an provided for at the publick expense.

Going to be fun, watching Republicans run against the VA.

[Kulaf]

No that is an incorrect interpretation. Allow me to highlight:

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia

Followed by:

That every citizen, so enrolled ...

So...yes the President as Commander and Chief can order the militia to supply themselves.

[Ddrak]

The government isn't forcing people to buy things anyway. If I read the act right (which is always a dodgy question) then you could just say it's applying a tax to people who haven't got their own insurance. A lot of this is going to come down to legal technicalities, and it's unlikely the bill will be thrown out as a whole anyway.

Dd

[Fallakin Kuvari]

Partha using the Second Militia Act of 1792 to justify this healthcare bill's requirement that everyone purchase some sort of healthcare is completely hilarious.

@Dd: It certainly is requiring that people buy healthcare coverage because there are penalties if they do not ($2500 fine or 5 years in jail, iirc).

[Ddrak]

@Dd: It certainly is requiring that people buy healthcare coverage because there are penalties if they do not ($2500 fine or 5 years in jail, iirc).

My point was you could equivalently view that as a $2500 tax on people who don't buy coverage, or 5 years prison if you refuse to pay tax. Both are permissible via the constitution.

Dd

[Embar Angylwrath]

Except its not a tax. It's not codified as a tax, nor is it a legislated tax. Its a requirement to purchase something in the open market, with criminal penalties if you don't do it.

Most legal scholars I read say this is the vulnerable par of the bill. There is no consensus on the constitutionality of this provision. Both left and right leaning scholars can be seen arguing that it is legal, and others that argue it isn't. Some argue that its an untested area of the Constitution (my personal view as well).

[Partha]

Actually, it's not a requirement to purchase anything, because you can get an exemption from having to purchase it.

[Lurker]

@Dd: It certainly is requiring that people buy healthcare coverage because there are penalties if they do not ($2500 fine or 5 years in jail, iirc).

Source please.

Not only are your numbers wrong on the fine, but the bill specifically says that no criminal action or liens can be taken against someone who doesn't get insurance and doesn't pay the fine. Next you'll be trotting out the 16,500 new IRS agents bullshit.

Anyways, a successful constitutional challenge to the individual mandate portion of the bill is extremely unlikely and it wouldn't lead to the end of the health reform law. This is just the latest thing some hucksters are using to dupe their confused fans / base.

[Fallakin Kuvari]

Dear Jackass:

Note the "iirc" in the brackets. That means, if I recall correctly.

Thanks,

'Wingnut'

[Fallakin Kuvari]

Actually, it's not a requirement to purchase anything, because you can get an exemption from having to purchase it.

Only if its against your religious beliefs, iirc.

[Lurker]

Wrong again. Does it bother you at all that you are completely wrong about stuff you are so passionate about? Especially something as extreme as believing people will be doing jail time for not buying health insurance?

And putting iirc at the end of everything is a lame cop-out. You fill your head with garbage. Practically nothing you "recall" is going to be be correct.

[Fallakin Kuvari]

Its hardly a cop-out. I say iirc because I've moved on from the healthcare thing and am reading history and fiction right now and barely paying attention to the mess in Washington.

IIRC: The $2500 fine or 5yrs jail was either in the bill or the addition of it to the bill was being debated.
I know for a fact that "opting out" of the program if it conflicts with your religion was discussed as being in the finished product.

[Embar Angylwrath]

I beleive as it stands now the IRS is responsible for making sure the fine, if assessed, is collected. However, they can't lump a penalty on top of the fine, nor can they seize an asset or pursue criminal action (even though its a crime). About the best they can do is take it out of your refund, if you have any. He also indicated that absent any other tools, there's not much more he can do. With the only threat of non-compliance is a "lien" against any further refunds, an no other penalty normally associated with taxes, a person can just flip the bird at the system. There's practically no consequence for non-particiapation.

[Ddrak]

Most legal scholars I read say this is the vulnerable par of the bill. There is no consensus on the constitutionality of this provision. Both left and right leaning scholars can be seen arguing that it is legal, and others that argue it isn't. Some argue that its an untested area of the Constitution.

Yeah - that's what I'm getting. My point was it will probably come down to perverse technicalities one way or the other. I'm guessing any successful challenge will be extremely narrow in its effect anyway.

Dd

[Embar Angylwrath]

Alluding to what Lurker said earlier...

Even if the requirement to purchase insurance on the open market is decalred unconstitutional, it would not render the entire bill (law) moot. It would only invalidate that portion of the bill. And since the bill (law) hasn't been fully dissected and analyized yet, its hard to say if this will be fatal to the implementation. I doubt the Dems put something responsible in there about budget neutraility. They seldom ever do (nor do the Reps).

At worst, if people don't pony up, and the IRS can't/won't collect, then that expense will become another one in a long list of un-funded mandates. People who dont contribute will get a free ride, with no other penalty than the possibility of a reduced tax refund. And since almost 50% of households don't pay taxes... you get the picture.

This is entirely on the Dems. They had neither the will, nor the courage, to fund this adequately. They left plenty of escape routes for anyone who wants to dodge this. Without the penalties collected (and other miraculous happenings), the measure won't pay for itself. I'm almost tempted to cancel the health insurance my company pays for its employees just to prove a point, but I'd rather do the right thing, even if the elected representatives won't.