Our beleaguered President has been dealt a setback of sorts on a legal challenge to the healthcare bill but it isn’t all bad news. Article HERE
US District Court Judge Henry E Hudson (a Bush appointee) ruled from his Virginia court today that Congress could not compel all citizens to purchase health insurance. He noted that:
"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]”
Maybe the judge has a valid point; since Congress failed to enact nationwide, single payer health care, should they be able to compel individuals to buy private health insurance?
But then, how come states can compel individuals to buy private car insurance?
I don’t know the answer to these questions but I do know at least a couple of exemplary legal minds that hang out at the beach so I’m hoping they will put forth opinions based on their knowledge of the law of which I am woefully bereft.
Hudson did say that portions of the law that do not rest on this provision are legal and can proceed. To his credit he refused to enjoin the law and halt its implementation since it does not go into effect until 2014.
There are 25 legal challenges currently making their way through various courts. No doubt this will all end up before the SCOTUS at some point. Hudson wants to circumvent further appeals and requested it go to the Supreme Court now. He wants the White House to sign on his request saying it would benefit them to get a ruling.
I say – Not so fast…
So far four of the twenty five challenges have been ruled on or are pending. Hudson is the first to make a negative ruling on any portion of the new bill. Two other rulings in Lynchburg, VA and Michigan have ruled in favor of the provision. Florida has a case they are considering.
Seems to me the White House might fare better waiting for more rulings to bolster their argument when they do come before the Supreme Court.
What do YOU think?
Rocky,
ReplyDeleteI'm not a lawyer, so I don't know -- I'll look forward to what others have to say.
I've heard it said that the portions of the reform bill people DON'T like are the ones that pay for the parts people DO like. As usual, we don't want to pay for anything but we want it yesterday. Hmmmm....
Seems to me that the basic idea behind Obama's approach was something like, "enact provisions that force private insurers to act like they don't have the soul of a stone -- force them to be good corporate citizens, and we'll have a vastly improved system for health-care access." It might work, I don't know.
But then, how come states can compel individuals to buy private car insurance?
ReplyDeleteBecause you don't HAVE to drive a car. There's a PUBLIC OPTION it's called the bus, the sidewalk, riding a bike on the public street, subways, etc. Transportation is not the same as healthcare.
This is why we were fighting so hard for the public option. It provides the legal support necessary for the mandate. And the mandate is necessary to get rid of pre-existing conditions.
I'm sure there are other ways of fixing this but this yet again proves why our healthcare situation sucks. Instead of healthcare reform we got health insurance reform. And I don't want health insurance. I want healthcare.
Single payer is the only way to go.
Excellent analogy SB thank you for the clear an simple explanation.
ReplyDeleteI was very disappointed that the public option did not make it through.
Do you think that if this provision gets shot down before the SCOTUS, it will also eliminate the provision ridding us of pre-existing clauses?
I agree that this form of the bill pretty much sucks. Still, as Dino points out it if some of this bill survives and proves worthy, it might pave the way to more meaningful reform later?
Of course you don't have to live either. Got Diabetes, cancer, heart disease, tuberculosis? Your kid born with a heart defect - hey you don't need that kid, do you? Well you can just suck it up and die, can't you - and reduce the surplus population.I'm OK, so screw you not one nickel to any of you lazy minority slackers.
ReplyDeleteOr you can go to the emergency room and throw yourself on the mercy of the taxpayer and cost us all far more than had we made you join a common risk pool.
We know damned well the opposition has nothing whatever to do with the constitutional casuistry that going on. This is all about money and "I've got mine - fuck you" which is the only consistent principal we're ever going to hear from the right.
The constitution is here to provide for the common welfare and was not meant to be an immovable stumbling block to progress but we're a nation on the way out and this is the sort of thing we have to expect.
Cpt Fogg I DO believe there is a judicial precedent supporting your right to life whereas there is not one supporting our right to own and drive an automobile.
ReplyDeleteBut I'm pretty sure you were joking, right?
Do you think that if this provision gets shot down before the SCOTUS, it will also eliminate the provision ridding us of pre-existing clauses?
ReplyDeleteIt will be truly ironic if the GOP says the mandate is unconstitutional, since it was THEIR idea to begin with.
But I happen to agree it IS unconstitutional for the government to demand that citizens buy a product from a private company. This will I hope pave the way to single payer.
Alternately there will be tweaks: get rid of the mandate and also ban pre-existing condition exclusions BUT there are strings attached to prevent someone from going without insurance until they get sick. No to certain claims within first three months or some such.
I hope that the courts completely shoot down the individual mandate; then there will be no choice but to go with the "public option".
ReplyDeleteAs fewer and fewer people are covered under insurance plans, the costs the providers need to eat goes up, which will further drive up premiums.
It makes me wonder if the CEO's of medical insurance companies have ever heard of the concept of long-term planning.
With regard to Robert's point, I've long wondered why something like an expansion of Medicare wouldn't be the easiest "sell" -- I mean, provided the Democrats get their majorities back at some point. Most people already know what Medicare is, and they like the program, so the GOP couldn't screech about "socialism" like they do with other, newer ideas. If you ask a forty-year-old, "Hey, would you like us to let you into Medicare?" doesn't that seem like an attractive proposition? I'd take that deal anytime!
ReplyDeleteSB, to my knowledge there is no judicial precedent finding a "right to live." There certainly is no constitutional provision regarding a right to live.
ReplyDeleteCertainly one doesn't have to drive but if you do, you have to have insurance. Not to protect yourself. In fact in some states you aren't required to have a policy to cover yourself, just liability insurance to cover if you do harm to the other guy.
Of course the significant difference is that the requirement for car insurance are state laws, not federal
As the courts have indicated (most have thrown out the lawsuits challenging the mandatory health insurance requirement) have shown, this is an issue up for debate. I certainly don't have a definitive answer.
I do think that the stronger argument is that under the authority of the Commerce Clause that the federal government can mandate the insurance requirement, but perhaps that's because I totally agree with the Captain's position on this matter.(This has been the findings of most of the courts that have addressed the cases contesting this provision of the health care reform act.)
I find it interesting that when a public option is offered as a counterpoint to mandated insurance purchase no one ever addresses what is the cost of a public option and how is it to be paid for? What is the exact structure of a public option? It has to cost something, where will the money come from?
Don't misunderstand, I'm not opposed to a public option, but won't it require that there be some kind of financial investment on the part of everyone in order to support such a system? Countries that have a pubic option of some sort have a much higher personal income tax rate than we have in the U.S.
There is no such thing as insurance coverage for all without money to pay for it. Expansion of Medicare would be nice, but how do we pay for that expansion? I would suspect that it would mean a significant tax increase and I'm not opposed to that, but whatever we do, someone is going to have to pay to do it.
The other issue is that the public option isn't currently on the table. Toss the current health care act and what replaces it and when? This lower court ruling is meaningless at this time. It'll have to withstand appeal all the way up the ladder to the U.S. Supreme Court. That could take years. The wheel of justice don't just turn slowly, sometimes it barely moves.
Stuff just shows up in my mailbox and sometimes it's actually of use. This is a link to an article that covers the legal status of the current 24 legal actions challenging the Health Care Reform Act.
ReplyDeletehttp://www.washingtonpost.com/wp-srv/special/health-care-overhaul-lawsuits/?sid=ST2010120605227
Sheria - great link, that's an interesting breakdown and not unexpected. The public option will most assuredly cost something. Most likely our taxes would go up significantly, that is true. Of course the flip side is our currently less fortunate citizens who can't get or can't afford health insurance won't die needlessly for lack of decent healthcare.
ReplyDeleteI would have loved to have seen a public option included this round but it was not and to toss the whole bill would probably be a mistake. It sucks, but it sucks less than what we have now. And again, perhaps if parts of this work well it will open doors to further reform later.
Question: Judge Hudson is requesting the SCOTUS consider the case now and wants the White House to sign on. If you had to deal with this on behalf of the US, if it were possible, would you want to bypass the lower courts and go directly before the SCOTUS now or wait until you had some lower rulings to use in your arguments?
Southern Beale - I would be interested in your response to this question also.
And I ask this purely for the academic aspect. I just wonder from a more legal view, what would be more appealing.
Hi Rocky, just getting back around and saw your question about the wisdom of taking the case straight to the SCOTUS. My personal preference would be to expedite things and go straight to SCOTUS. Going through the lower courts will just mean added costs for all of the parties and no decision by a lower court is going to influence the Supreme Court to any significant extent. Of course, the down side for the government is that if the SCOTUS rules that provision unconstitutional, then it's gone. However, that won't mean that the entire health care reform act is gone. The only provision at issue in this particular challenge is the mandatory purchase of health insurance so the decision will be limited to that provision.
ReplyDelete