Law Professor Richard Esenberg writes about the the legal challenges coming against ObamaCare, whether those challenges can stop it, and why this bill is so dangerous.:
Still, the individual mandate may be different. Professor Barnett writes that “[w]hile Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.” It’s one thing to be subject to regulation because you are providing for yourself what you would otherwise buy in an interstate market. It’s quite another thing to argue that, because your refusal to consume a product may affect interstate commerce (if the young and healthy do not insure, the old and sick will have to pay more), you can be made to buy it.
Some scholars and lawyers prefer to emphasize Congress’ authority to tax and spend to promote the general welfare. Jack Balkin, for example, thinks that this makes the case for the constitutionality of the individual mandate “easy.” For Professor Balkin, there is no need to construct Rube Goldberg-like scenarios of commercial impact. “The government can make you pay taxes,” he says. Because the failure to insure will result in a tax (as opposed, I guess, to a stint in Leavenworth), there is nothing to see here.
Perhaps not. There is certainly case law that, while not mandating that conclusion, provides some substantial support. But it ought not to be that easy. The power to tax is, the power to destroy. While taxes may have a regulatory purpose, there should be some limitation on the ability of Congress to accomplish by taxation is there truly no limitation on Congress’ ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person’s income because she has failed to do what Congress cannot compel her to do? Does a fine become permissible as long as it is connected through the Internal Revenue Service?
Without getting into the doctrinal ins and outs, this should not – and might not be -as easy as my old law review colleague believes it to be. There may yet be room to argue that Congress’ enumerated powers impose some limit on its power to tax, particularly when the tax is imposed in an effort to coerce certain behavior or to penalize a failure to act. Were I to wager on the question (which may turn out to be an exercise in reading the mind of Anthony Kennedy), I would expect the Court to uphold the individual mandate. But the day that it does will be a tragic one for the Republic.
The reason will not be the survival of ObamaCare. It is, I think, a poorly conceived proposal that will do more harm than good. As written, it seems likely to fail and, if not abandoned, may well lead to a single payer system. But we have survived worse.
It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously – and now ironically – thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what – save some other constitutional restriction – it cannot require you to do – or prohibit you from doing.
I appreciate that many people – including most of my colleagues in the legal academy – see nothing wrong with this. There are, to be sure, still political constraints on Congress. Even if Congress can ration trips to McDonalds, it won’t.
The extent to which you are comfortable with this may turn on the extent to which you are comfortable with the centralization of authority and, in a world in which Congressional enactments are increasingly delegations of authority to bureaucrats, your confidence in the capacity of experts to “get it right.”
Tom Maguire asks, where will it stop?
Since the topic is health, suppose the government legislated that all of us must submit to semi-annual weigh-ins, with testing for nicotine use and illegal drugs, subject to an income tax penalty for declining the test. Suppose the Congress also mandated that we must sign a “Consent to Search” form allowing the Food Police to conduct snap inspections of our kitchens, in a zealous quest for excess butter and ice cream.
Oh, but that would never happen right?
Yeah, just like we thought the government would ever be allowed to FORCE us to buy something…or else.
But either way, whether it survives the legal challenges or not, this bill will be a war for decades to come. The debate is not stopped. Every year we will have one funding crisis after another. Every year we will be taxed more and more. What will we become if this does survive?
We only have to look at Great Britain to get a glimpse of the future. The National Health Service—socialized medicine—was created in 1946 and touted as the envy of the world. It’s been a contentious issue ever since. Its cost and coverage are perennial subjects of debate. The press, especially England’s most popular newspaper, The Daily Mail, feasts on reports of long waiting periods, dirty hospitals, botched care and denied access to treatments.
A Conservative member of the European Parliament, Daniel Hannan, last year in an interview on Fox News denounced the NHS as a “60-year mistake,” declaring he “wouldn’t wish it on anybody.” As prime minister, Margaret Thatcher bravely cut NHS spending in the 1980s, but current Tory leaders regard criticism of the NHS as too risky. “The Conservative Party stands four square behind the NHS,” its leader, David Cameron, said in response to Mr. Hannan.
House Speaker Nancy Pelosi believes ObamaCare would have a more congenial fate—that it will become as popular as Social Security and Medicare with voters. She’s kidding herself. Social Security and Medicare were popular from the start and passed with bipartisan support. ObamaCare is unpopular and partisan. It’s extremely controversial. Its passage is far more likely to spark a political explosion than a wave of acceptance.
What have the Democrats brought upon us? They don’t know and they don’t care. As the funding crisis worsens the lies about more benefits while costing less will be spotlighted. The lies that the state Medicaid programs will flow smoothly even if 30 million new people are added to the rolls will be spotlighted. The lie that it will cost only 900 billion or so over 10 years will be spotlighted.
The Democrats have created a new entitlement as our economy is sinking.
This should answer just how irresponsible they can be. Doesn’t matter what it costs, what it does to our economy, what it does to the republic. All that matters is retaining power, and they think that giving people free stuff on the backs of others will keep them in power.
Question is, are they right?
See author page
ilovebeeswarzone–
I’d say that’s why we’re freaked over it, money is always the primary interest in government. And it would be ok if we could clean out the corruption out more often. This is one of the lessons from Jesus’ saying “Render unto Caesar what is Caesar’s and unto Gd what is Gd’s” To me this is saying, you don’t get better government in a theocracy, you get worse religion. However, He never advocated overthrowing the government, because the world needs governing.
pat i agree of your comment except that i find that the leader of a SUPERPOWER should be chosen very wisely by his people because he could be very deceifull by being gifted with a tongue that could lead his country into chaos and incapable to fix that,,bye
pat there is 2 pat on the other post[democrat admit…]now which one are you ?the one on 14th in the other post or the one below on the other post, bye
drjohn and yonason —
I am betting that neither of you knew that about the bill, did you? Here all this time the GOPers yelled about the mandate being unconstitutional, and now we know that the “mandate” is optional? W.t.f.? What was the purpose of giving you cons 72 hours to read the bill before it is voted on, if you weren’t going to read it anyway?
ilovebeeswarzone,
I’m the Zonie who responded to #14. But I’m not #14. Once long ago I was registered as a Democrat because in this state you had to choose one or the other, since then we can register as an Independent and that’s what I am now. The downside is that I can’t vote in either primary.
and I’m the pat that wrote the posts above you, Bees.
so pat one of you will have to take a number thank’s for clearing it and you’ll have to get in touch with the other pat so you can take a diffrent number bye now i will answer the other pat
@BRob:
Are you really that stupid? “You don’t have to use our plan, as long as what you do is exactly like our plan,” means it ISN’T “OPTIONAL,” moron.
Sign the pledge…
http://repealitpledge.com/
as found here…
http://www.c3headlines.com/
Mata, this was just put up on the Daily Caller concerning the IRS and the HCR bill.
Now Democrats are touting protections they have added to limit the reach of the tax man. “The bill specifically prohibits the IRS from confiscating taxpayer assets, from using liens or levies, or imposing criminal penalties of any kind — including jail time — because of a lack of health care coverage,” Speaker Nancy Pelosi’s office said in a statement.
The health care law signed by President Obama Tuesday says that, “notwithstanding” other federal laws, taxpayers “shall not be subject to any criminal prosecution or penalty” for failure to pay the fines
Read more: http://dailycaller.com/2010/03/24/democrats-tout-restrictions-on-irss-reach-in-health-care-law/#ixzz0j9xS0ySV
I don’t have clue as to how you fine someone but can’t enforce the penalty for not paying the fine.
Pat pat pat Patvann.
It’s like some sort of strange vortex of snake-haters.
@Inspectorudy:
So, Inspector Rudy. Just out of curiousity, and since there is no language in the bill that Obama signed into law that I can find that alters IRS Code, would you be inclined to believe the same bunch that said kids are covered from day one… ooops… we mean from 2014?? LOL
Don’t get me wrong. I know on which side you live, guy. What I’m saying is there’s a lot of media and a lot of mouth pieces going on about a 2409 pg bill that the lot of them never read. And now they are getting caught with their knickers down by stuff they promised that just ain’t so. I suspect this isn’t the last of it either.
So let’s go back to what I said. Can they jail you for not paying the fine? No. Not directly. But if that leads to liens or judgements for indirect reason, they can garnish wages and have you jailed.
Let’s examine the opening line of the “no criminal penalties” bit they are touting… It says:
What is IRS Code but one of those “other provisions of law”??? This is precisely why the Joint Committeee on Taxation sent off a note about IRC 7203, which addresses *willful* failure to file or pay….
Now let’s use your own link to prove exactly what the Joint Committee on Taxation said is, and remains, true:
So let’s go back to the beginning again. If you do not pay, will they immediately jail you? Attach your assets? Place a judgment against you?
No.
Will they investigate *why* you didn’t pay, and demand proof of your inability to pay?
I’ll bet my bottom dollar they will… they are desperate for that cash because it’s built into their lyin’ ass budget.
Now, if they determine you are *willfully* not paying a fine or penalty, they most certainly can impose that “other provision of law” that is “not withstanding” by using deliberate tax evasion. And this is exactly what the Joint Committee on Taxation was pointing out.
Are they seeking to jail impoverished people? No. But they will prosecute conscientious
objectors in a heartbeat.
So, as usual, Pelosi is either dumber than a box of rocks from Skookum’s back yard, or she is lying thru her teeth. Either one works for me.
@BRob:
Once again commenting on something you have no knowledge of, eh?
Best read the posts above you before you beclown yourself again.
yonason and Little Dog —
Let’s take this SLOW shall we?
Medicare and Medicaid are voluntary programs for the states. They don’t have to take the money and they don’t have to be involved. Obamacare includes billions of dollars to every state to fund the transition. So there are two ways of getting out from under the mandate:
1) drop out of Medicare and Medicaid altogether, or
2) create your own program.
If your argument to a judge is that “Obamacare involves the feds forcing a mandate on individuals to buy insurance”, my first question as a judge is
“How is any individual harmed by having medical coverage, especially of there is a subsidy to buy it?” The laws against suicide, too, encroach on individual freedom . . . but is anyone harmed by that? And
“If the government forces hospitals to provide care to anyone who shows up, why can’t the government force the individuals to have some financial coverage for that care, so the rest of us are not burdened by the uninsured’s un-paid-for care?”
Y’all still haven’t given me an answer to either question, but I am still waiting. These two questions alone will sink the cons’ lawsuits. But it gets better . . . .
The judge will then ask
“Mr. McCollum, isn’t it true, as the US attorneys state here, that the states can opt out of the mandate by getting a waiver and setting up their own plan?”
“Yes. But that plan would have to be universal.”
“But that is a deal between the federal government and the states, that it be universal, correct? Not a mandate on the individuals in the State of Florida that they have their own coverage?”
[McCollum, cornered] “Um . . . sorta. If I follow you.”
“We can agree that a mandate on the State of Florida to cover all its citizens is different than a mandate on the 23 million individuals to get their own coverage, correct?”
“Uh . . . can I take a bathroom break?”
“No. I am almost done here. A mandate on the State of Florida to cover all its citizens is different than a mandate on the 23 million individuals to get their own coverage, yes?”
[indeciferable]
“Mr. McCollum, isn’t it also true that the states can opt out of their federal mandate by opting out of Medicare and Medicaid?”
“I really need to pee . . . .”
“So wouldn’t it be fair to say that the mandate on the states is actually through the Spending Clause power? You can get rid of the mandate by not taking the federal money by not having a federally funded Medicare and Medicaid program right? You can have a completely state funded program, or no program at all, and there would be no mandate?”
[McCollum wets pants] “Yeah . . . I guess so . . . ”
“Mr. McCollum . . . did you actually read the statute before you filed your lawsuit?”
“That was someone else’s task. I just signed it.”
[judge turns to fed’s attorneys] “I will not entertain a motion for sanctions until 30 days have passed, enough time for them to rethink their complaint.”
* * * * *
That, cons, is why the most curious law suit argument is toast.
This is the first “right” that we get, that the government forces us to partake in…
We have Freedom of Speech, but nobody is forcing us with threats of jail and fines if we want to sit down and shut up.
This is the first “Right” that forces another to give away their property to another. Can we all now get plumbers to work for less then their costs? Yes, “time” is a persons property…just ask any lawyer.
SPEED BUMP?, or DEATH KNELL?
Hopefully the latter.
_________________________________________________________________
One way or another, ObamaScare (and virtually every other Demoncrat initiative) MUST be stopped or reversed.
PATVANN the more pat the more snakes w’ll catch 🙄 bye
patvann —
As it stands now, you have the “right”, via federal mandates on hospitals, to receive care even if you cannot show you have the money to pay or insurance to have a third party pay on your behalf. So please explain to me what is so wrong about you being required to pony up for insurance to pay for the care you have the right to demand?
And since this is done through the tax system IF you don’t get insurance on your own, how is that any different than government taking tax dollars to pay for something else that benefits you, like the air traffic control system?
And the better point — how are you harmed by having private health insurance?
You cons are freaking out over a philosophical opposition to something that is good financial planning and basic common sense: adults should insure themselves and their children against catastrophic medical expenses, which can amount to the millions in a bad case. Only today’s cons would find this basic point of adult responsibility to be some kind of Hitleresque policy of “government tyranny.”
You really have your head pretty far up the Obama/Pelosi/Reid rear tranny, don’t you, billy bob. No one argues that having insurance is responsible, and desireable. The problem is that health insurance has become cost prohibitive. And your party getting into the business of price fixing insurance premiums, and adjusting payouts to accommodate for the costs, isn’t anything close to a logical cure. None of it does anything to stop the reasons health costs are rising. And it’s not because of insurance provider profits.
What is most objectionable is what you, yourself, wrote…
Yes.. it is government tyranny. Personal responsibility is not to be construed with compliance with government mandates, backed up with the full force of IRS enforcement. And that’s your flaw. You figure to control people’s “responsible” characteristics by tort. That is the definition of tyranny… imposition of oppressive conditions by outside agencies or by force.
This is quite natural for you… a cradle to grave nanny government type. It’s just not natural in the country created by our framers and founders. Thus the “philosophical” opposition you so easily diss.
@BRob:
What’s wrong is that the government can’t run it, will destroy quality health care, drive prices through the roof, and ration what little they remain able to supply. What’s wrong is your scenario is a fairy tale that can’t work, like all other failed socialist programs.
The private sector is what has made America great, not the government. Every time government gets involved in something, they screw it up. Government’s job is to make sure we all play fair and stay honest, and to come down on those of us who don’t. Government innovates nothing, except waste when they try to.
And why are they so incompetent? Well, apart from not knowing as much about medicine as Doctors, or about insurance as insurance companies, they are crooks.
@MataHarley:
Nice. You’re always a joy to read, but you seem to be getting even better. That little vacation must have been restful?
Billy Bob’s thought process would lead to the gov. telling us what “Healthy” food to eat. Say good bye to all of the fast food and pizza parlors. Say goodbye to any form of alcohol too. Then there is the “Sports” activities that we stupid humans indulge in like scuba, sky and muff diving that can be injurious to our health that would banned to save on potential health related costs. The speed limit in our new gov underpowered, mandated automobiles would drop to 50mph or less. Motorcycles would be out naturally. Movies would have to be G or PG to prevent any type of imputed violence. All knives would only be sharp one inch in from the point which could not be pointed to prevent injury. Guns? Forget the 2nd amendment and all of the violence that is generated by honest citizens. Remember we all have to pay for the good and the bad guys health care. So if you actually shot a rapist or robber it would cost us all more in the long run. This list could go on and on and it will if the nannys in DC don’t butt out of our lives.
Just triaging here on the home front, Yon. Swamped with work, it was tax time and I had to incorporate the new biz I started. And when I did get free time, I’ve been researching/trying to second guess brief arguments on the states’ challenges. Oddly enough, there isn’t a plethora of SCOTUS or district opinions on unfunded mandates. Interesting, eh? Might be time for one….
@Blob
You can always identify a NeoFascist by the way they conflate words and meanings to suit their own purpose.
I do NOT have a “Right” to receive care…I have “permission from the state”. Learn the difference. You have a Right to bear arms. Should we fine you if you don’t own the “required” caliber weapon? You have “permission from the state” to drive a car….Or should we tax you for not driving?
I already pay for my own benefits. So should everyone else. Why should you pay for mine, and visa-versa? The government takeover of Healthcare payments have nothing to do with the need for air-traffic controllers, because there is no existing private version being run out of the market.
I’m not. I want to keep it that way. With Obamacare, my privately paid-for insurance is jeopardized, AND I have to pay more in taxes to support those who don’t prioritize their life’s bills.
Adults SHOULD insure themselves. Why won’t Obama and you Fascists let us? Why won’t you let the cures proven to work be put into place?
Answer: POWER
Mata, yonason, etc. —
I keep coming back to the practical and you people keep going off on these Randian flights of fancy. You may THINK that government is evil tyrannical, etc., but the reality is that our ELECTED GOVERNMENT is a function of the choices the voters of America have made. You want to live in a state of nature where you can do whatever the hell you please? Be my guest. But that ain’t this country and never has been. Feel free, however, to find one that is more to your liking.
I love how you cons always dodge discussing the government benefits you suck up with gusto. But guess what? You non-insurance bearing weasels get your broken legs set on MY DIME. So I, for one, am pretty happy that, in exchange for getting that care, government benefit leeches are now required to get insurance for you and your unfortunate offspring. Now maybe the hospitals will have to offer less uncompensated care . . . you know, that other category your cons don’t like to address when you talk about your “right” to have health care and have no insurance.
It is not “government” driving up the cost of health insurance. . . because, before Tuesday, the feds weren’t even involved in health insurance! No, it is people with no insurance who run up a $107,000 hospital bill, then don’t pay it. Funny you cons never discuss how wrong it is to have a “nanny state” when you are sucking on the government teat . . . .
MATA I might add also the danger of the ones who will try to collect the tax or the fee is about caracters that are on the bully inclined might push it at your place and get you angry enouph to throw them out and you go to jail or pay the fine ..and that was a sneaky tactic from the employee ,a scenario.design in advance to shine,the more they would get the higher they get in rank
@Blob
Oh. My. Gawd. The fact that the Fed is responsible for 40% of all healthcare expenditures, is completely foreign to this twit…I guess Medicare is paid for with cookies and unicorn scat.
This boy is willfully retarded.
Really dood. You have nothing else to offer here, other than entertainment.
While everyone bandies about the health care mandate aspect of this, you are completely ignoring the gigantic tax increase. Let me do the math for you BRob: someone in the top tax bracket in a state like California will be paying 39.6% + 3.8% + 9.3%, more than 1/2, on interest income from his or her savings. Once inflation returns, most of that “income” is actually just inflation on the original principal. For example, if inflation’s 3% and interest is 4%, you keep 2% nominal but lose 1% in real purchasing power. How can you defend that as fair? More than that, is it wise to effectively punish savings and use the tax system to reward or increase consumption in an economy that’s already borrowing to cover a shortfall between production and consumption?
Make no mistake, the ultra-wealthy, including the big Hollywood stars, ball players, CEOs, trust-fund heirs, and wealthy litigators won’t be paying these taxes – their armies of lawyers and accountants will see to that. The goal of the ultra-elites is to buy the votes of the masses by stripping the wealth of upper-middle-class wage slaves who don’t have these options, to achieve a uniform mediocrity. It won’t work, though – utlimately discouraging work and savings while rewarding the opposite is unsustainable. Once you’ve quashed enough economic activity, you’ll never close the deficits.
@BRob:
The voters were lied to, by the pols and by the MSM, and by clowns like yourself. The only time you dare to tell the truth is when you think it won’t matter anymore.
They called us all kinds of nasty names when we said it was Socialism, and that we were lying. But now THEY are calling it what it is, because they think there’s nothing we can do about it.
http://gatewaypundit.firstthings.com/2010/03/sharpton-americans-overwhelmingly-voted-for-socialism-when-they-elected-obama-video/
But then, telling the truth up front isn’t something you are capable of.
THE GIMLET EYE: hi, LET me say that I visited your site and was very impress with all the difrents subject which you wrote very well, now I was wondering if you stop completly or for a while april but MAY JUNE JULY are not there. april was very interresting. bye
Hello, ilovebeeswarzone,
Thanks for the kind response! I’m glad you liked my material. I have not done much with my website lately, being so very busy with other matters. I’ve just been able to tinker a bit here and there the last few weeks. My main interests are politics, history, economics, government, law, and, of course, conspiracies. That covers a lot of ground, so don’t be surpised to see a wide variety of entries on various subjects.
No, I have not given up. I am planning to gear up again very soon with some new items of interest. There is no lack of potential material, that’s for sure!
Good luck
http://the-gimlet-eye.livejournal.com/