DAR
Lv 7
DAR asked in Politics & GovernmentPolitics · 1 decade ago

If Reid is confident Obamacare is Constitutional, then why......?

" David Rivkin in the Washington office of Baker Hostetler, a former lawyer in the Reagan and Bush I administrations, has taken a bit of a bruising by his conservative friends and his usual liberal sparring partners for his view that the individual insurance mandate is unconstitutional on commerce clause grounds.

Under that clause, he argues, Congress can regulate activities that have an economic effect on interstate commerce. There is no such connection in requiring people to buy health insurance, he said.

Rivkin said he takes some credit for "teeing up" the constitutional issue for lawmakers and others by getting his views published in various media. And, he added, he sees signs of anxiety over whether the mandate is on firm legal ground in recent actions by the Senate Finance Committee.

First, he noted, Senate Finance Chairman Max Baucus (D-Mont.) ruled out of order an amendment to the health care bill that would have required expedited judicial review of the constitutionality of the mandate and the $750-per-adult penalty to enforce it. Baucus said only the Judiciary Committee had jurisdiction over such amendments, but Rivkin and others said that has not been common Senate practice. "I think the fact that proponents are hostile to expedited judicial review ain't a sign of confidence," he said.

Second, he said, Baucus sought an opinion on the constitutional question from the Congressional Research Service. The CRS report, although generally supportive of constitutionality, said the controversy concerning whether Congress can use the commerce clause to require an individual to buy a good or service is "the most challenging question" and a "novel issue."

And finally, Rivkin said, committee staffers told him that the enforcement penalty is no longer called a "fine," but a "tax," which, he added, "suggests considerable anxiety about relying on the commerce clause."

Rivkin, Urbanowicz and others who question the mandate's constitutionality on commerce clause grounds rely primarily on two U.S. Supreme Court decisions: U.S. v. Lopez, a 1995 ruling striking down a federal law regulating guns near schools, and U.S. v. Morrison, a 2000 decision finding that part of the federal Violence Against Women Act exceeded Congress' lawmaking power. In both cases, the justices did not find a substantial effect on interstate commerce and made clear that there are limits to this lawmaking power.

"If authority is implicit in the commerce clause to tell people to buy insurance, then clearly it's an unstoppable power and any number of individual behaviors can be policed," said Urbanowicz, managing director with consultancy Alvarez & Marsal Healthcare Industry Group. "I don't think we're ready for that. I struggle to think of a similar thing Congress has done in the last 200 years that would be like that."

Even the high court's most recent, major commerce clause pronouncement — Gonzales v. Raich in 2005, in which the justices upheld federal regulation of marijuana cultivated at home for personal, medical use — re-emphasized the requirement that the regulated activities be "quintessentially economic," Rivkin said.

"I don't need to be told how Congress has regulated every species of inter- and intra-state economic activities and quasi-economic activities," he said. "I know the history of the commerce clause. But this is fundamentally different. Here you don't have any behavior to regulate. You're compelling people to engage in behavior."

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=12...

What do you think?

And I'm sorry if this came up before, I thought I had posted it but don't see it.

Update:

Holy Cow, medicare was under the spending clause and states had to opt in. Also, now that it is paid for by 'beneficiaries' there is a contract aspect.

Update 2:

jaker, scary thought.

6 Answers

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  • Anonymous
    1 decade ago
    Favorite Answer

    Glad to know someone is working on this already.

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  • 1 decade ago

    A very good question. The precedent for requiring Americans to participate in Obamacare is the FICA "tax" levied on American workers to force them to participate in the Ponzi scheme known as "Social Security," an unconstitutional program that, if it were offered by a private company, would be prosecuted as investment fraud.

    Max Baucus enlisted the support of the insurance companies for Obamacare by offering them the services of the IRS as "insurance agents." Political pimping, pure and simple.

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  • weiner
    Lv 4
    4 years ago

    I think of it incredibly is the comparable reason conservatives elect Justice Kagan to recuse herself from the case. nicely no longer precisely the comparable reason thinking democrats actually have a factor collectively as the conservatives are merely doing their known whining. Democrats at the instant are not attempting to 'stack" the courtroom. they're merely declaring that Thomas's spouse is now a lobbyist and became into until now an activist against wellbeing care reform who mechanically promotes the "impression" she has. i ask your self who she ought to probable have impression over? and that i will trust you that conservatives manage Obama the comparable way they dealt with Clinton. I bear in strategies those days the place the conservatards could call Clinton a Muslim from Kenya. I bear in strategies that one lawmaker who sent around e-mails of the Clinton-era white living house backyard coated in watermelons besides as all those people who used a photo of Hillary Clinton morphed into an ape as their avatars.

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  • Anonymous
    1 decade ago

    This is a real can of worms. If the govt can force you to buy an insurance policy and that policy has to be designed by them then they could also force you to buy a car that has been designed by them. It would be a good way to make GM profitable, wouldn't it?

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  • 1 decade ago

    this whole health care bill stinks

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  • 1 decade ago

    Yes, please cons strike down medicare too while you're at it.

    You'll insure a permanent Democratic majority by doing so.

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