Steve Klingaman

Steve Klingaman
Minneapolis, Minnesota,
January 01
Steve Klingaman is a nonprofit development consultant and nonfiction writer specializing in personal finance and public policy. His music reviews can be found at

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MARCH 28, 2012 2:10PM

ObamaCare’s Day in Court: Reductio ad absurdum

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Supreme Court

Wednesday's universal lead: “If the government can force people to buy health insurance, justices wanted to know, can it require people to buy burial insurance? Cellphones? Broccoli?”


One of the most useful and trenchant bits of commentary concerning the Supreme Court review of the Affordable Care Act—ObamaCare to you—was offered on Tuesday evening by Nina Totenberg, the National Public Radio legal affairs correspondent. She said what the conservative justices' questions revealed was just how much the country had changed.  What she meant was how far the country had moved to a very particular kind of conservatism that allowed even the most basic philosophical principles of the proper role of government to be called into question.

            At the most basic, reductio level, you have Justice Scalia asking if the government can force us to eat our broccoli.  But beyond that lie murkier analogues for the compulsion arguments rooted in the commerce clause of the Constitution.  “Why can’t the government force people to buy burial insurance?” Justice Alito asked, In that case, too, a burden of cost falls upon the taxpayer and government when a person fails to act in advance on their own behalf.  It’s a good enough question, if one that misses the issue of degree of burden that one must address in the provision of health care.

            If a person falls dead on the street with no family to provide for burial the government steps in the basis of a time-tested precedent—public health and prevention of disease—to deal with the body.  The cost of cremation, which runs in the range of several hundred dollars, is borne by the taxpayer for the good of all concerned.  But here’s the deal:  it’s only a few hundred dollars, the cost of perhaps 30 Advils as dispensed and accounted for under standard hospital accounting practices.

            So-called “charity care” is a different story.  Charity care arises from the fundamental ethics of the medical profession.  That principle is codified in law in various ways. The Emergency Medical Treatment and Active Labor Act (EMTALA), passed in 1986, effectively requires all hospitals to provide emergency care regardless of ability to pay.  No reimbursement is provided. Hospitals responded to the aggregate cost burden by pricing it into core costs at every level.  That’s one reason a hospital-dispensed Advil costs ten bucks.

            These hospital expenses were passed on to insurers, who passed them on to the businesses who bought the insurance on behalf of employees.  Most businesses passed on part of the cost to their employees, who have paid more for their health care insurance as unfunded hospital costs skyrocketed.  Today, the meme goes, every insurance purchaser pays an extra thousand dollars a year for unfunded medical care to uninsured patients who lack the means to pay for their care.  That cost is generally shared by employers and employees in varying proportions. The poor suckers who attempt to purchase medical insurance on the shark-infested private market bear that cost entirely upon their own.  Sometimes it makes the difference between being able to afford comprehensive insurance as opposed to just getting a catastrophic care policy.  All that to pay the bills of others!

            In 1986, no one came forward to challenge the constitutionality of EMTALA as excessive—and unfunded—government compulsion.  Why is that?  First, hospitals themselves saw charity care (to a modest degree) as part of their mission.  Physicians, to a point—as long as it was “affordable,” tended to concur.  Public health advocates saw systemic health benefits.  And generally, the principle—I call it the principle of compassionate care—made life less nasty, brutish, and short.

But now, in short, perhaps the principle of compassionate care is passé.  Maybe it’s pay to play, or to heal, now…or else.  Perhaps it comes down to that guy at the Rand Paul rally who shouted, to wit, “Let ‘em die!”  Is that where we are today?  I think, in some strange measure, that’s where the Court is heading. 

It takes systemic thinking to assemble the component parts of a web of public health for 300+ million people.  We lack that.  When a Supreme Court justice is incapable of understanding the principle of insurance—“I can see why young people won’t want to buy insurance, they’ll get it when they’re older.”—we are headed for trouble.  You almost have to think that nutcases like the Cato Institute’s Roger Pilon, vice president for legal affairs, who believes that Social Security is unconstitutional, are behind the wheel, and behind five of the justices on the Supreme Court. After all, why should the government be able to compel young workers to pay into a Social Security fund to which they personally may not live long enough to receive any benefits?  Why not just let them save for their own damn retirement?

When it comes to compassionate care, the paleoconservative position; the position which best characterizes mid- to late- 1930s reactionary thought about the Constitution and against the economic recovery plan of the Roosevelt administration, this kind of thinking holds sway in vast sectors of the public and maybe more that half the Court.  I think that’s partly what Nina Totenberg had in mind with her comment that the country had “changed.” How did we come to a de facto “Let ‘em die!” culture?

This recession, nasty, brutish and long, has made us mean.  Even our Medicare recipients want government out of their health care.  Really.  Aren’t we a little unhinged?

    If you follow the Cato logic on compassionate care, if you unravel the imperative for compassionate care and the thousand bucks a piece it costs us, you realize that even if you denied what one might call heroic medical measures to end-stage patients who couldn’t pay for it, you would still be left with an ocean of pain.  Most of the kind of dying that end-stage emergency room patients experience involves the potential for incredible levels of pain.  You can’t relieve that kind of pain with Advil, but you can with narcotics.

            Do our Cato friends of the Court wish us some kind of dystopia where black market solutions for end-stage narcotics are in order, or do we just allow them to writhe in pain somewhere, preferably out of sight?

            The truth is, you can’t deny compassionate care and maintain a civilized society.  The only way to pay for it in proper, fair, measure is to enact universal health care and spread the costs to the widest possible risk pool, the entire taxpayer base.  And yet 26 states howl that the federal government is engaging in blackmail by forcing them to widen the gates of Medicaid.  Those potential Medicaid patients are the most vulnerable among us.  And the states, it would seem, want them on the streets.

            Well, here’s my Swiftian bargain for the free marketers.  I call it the Mother of All Incentives.  Let the individual mandate go.  Use, as the Court advises, incentives only.  But repeal EMTALA so that any person who lacks insurance will no longer be treated. If they can’t pay, they can go to a medical bondsman (free market solution alert).  There, the patient’s friends and/or family can put their house up as collateral to guarantee payment for the treatment to come.  If the patient has no friends, then, well, that’s what churches are for.  I think Rand Paul (and Ayn Rand) would agree.  It’s a pay to play world we live in, and perhaps the vast majority of Americans would be just fine with having their health insurance costs cut by a thousand dollars a year once compassionate care no longer exists.

            Would they?  Or would they finally come to their senses and embrace a national health care solution?  I just don’t know.


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Some states reimburse for emergency medical care by what are known as uncompensated care pools. That's the way it used to work in Mass., before Romney care. Now we have the absurdity of (I kid you not) people who are too poor to buy health insurance but not poor enough to qualify for Medicare being sued by the state.

I think the decision will come down to a case of federalism: states can force people to do things that the federal government can't. The federal government only has 2 kinds of police powers, specifically granted in the constitution. The states existed before or independent of the federal government as political entities and have a full range of police powers--the federal government is constrained by the constitution in ways that the states are not.
The problem with the Federalism argument is the Constitution was drawn, in a significant sense, to give the federal government police powers. The fact that the Articles of Confederation didn't effectively de-funded the Revolutionary War, prompting G Washington to observe that the absence of an effective revenue system that essentially involves police power almost caused America's defeat.

A decent summation of the Constitution re: Federalism is it's designed to act in cases where the individual states prove to be incompetent. If anyone wants to make the case for the states as a whole being competent in containing America's vastly more expensive and less productive than other country's systems, let them speak. I have my rotten tomatoes ready.

The argument against Obamacare is, as you identify in part, brim-full of reductio ad absurdum (Plug: See my A Supreme Court Cure for Obamacare). The case is built on the specter of invisible monsters that will come, someday, perhaps, maybe, ya know, it could happen!

The Federal government -- rather, to state it properly, We, the People's Federal Sovereignty -- is not so limited it cannot act in this case. If that is doubted, or somebody wants to parse the Com. Clause and Necessary and Proper to declare that to be true, I refer them to the 10th amendment's confirmation that our dual sovereignty exceeds states "rights" (better: responsibilities/ prerogatives ) or Congress' discretion.

Though politics and law cannot be separated entirely, this case against is far, far more about politics than constitutional law. It's replete with buzzwords and BS. For example, I'd like to see where a "limiting principle" is constitutionally required, or that the popular election of lawmakers can't be described as an integral constitutional "limiting principle."

My Free Market (refer to plug) solution is those who want to opt out of being mandated to purchase h-care insurance should be tattooed so first responders know they want their liberty preserved. This way the EMT will know to call Dead Libertarian Pick-Up to have the carcass disposed of. Send the bill to the family or make a claim against the estate.

I'm contemplating writing about why we're seeing this dog 'n' pony show in the Court, so I'll end here.
"It takes systemic thinking to assemble the component parts of a web of public health for 300+ million people."

No, it takes humanist thinking and that is expanded medicare for all. Universal health care for all. 6% payroll tax will take care of 300 million people without the VENDORS milking the government and the citizenry dry. A single payer system.

Universal health care is applied to all other industrial societies. We give Israel $3 billion a year and THEY have universal health care. Why don't we use that $3 billion for our own universal health care for God's sakes instead of enabling building of drones and other weaponry?

People would rather see "lesser economic mortals" die in this country from illness and let the .01% extort obscene amounts of profit money in underinsuring the rest of us.

Once again, people like me are totally disenfranchised watching the kabuki games via media and the political evil and supposedly lesser evil talk about faux-justice and faux-fairness with appropriate health care for America. Bleeecccchhhh.

Obama could have let the doctors and nurses sit at the table and the economists who proved how much more affordable health care could be as well as high and competent quality care if universal health care had been implemented. But once again the corporatists and their pimped out pols especially the president are screwing the American people and the rest of the global 99% whenever they can.

congratulations on another cover.
The reductio questions are rhetorical but legitimate. They illustrate a point—that even though Congress is supposed to be a legislature of limited and enumerated powers, there are no longer any limits to what Congress can legislate upon. But why anybody but Thomas asks these questions is interesting, though, since they all accept the Revolution of 1937 as legitimate.

In 1937 the court essentially stopped enforcing any meaningful constitutional limitations against Congress. All the court looks for now is whether Congress has a "rational basis" to believe that such and such "affects" interstate commerce. Any silly yahoo can make the case for virtually any subject. Obamacare passes the test, as does everything else. Any novel limitation to this test will be just as arbitrary as the Revolution of 1937.

What the American people desperately need is for the court to just forthrightly state that is has interpreted the commerce clause so broadly that there are no longer any limits, and that the court will no longer hear any such cases anymore, and that the court should have stopped hearing such cases after 1937. That is the honesty we desperately need.
The situation can be described in classic terms; THE LUNATICS ARE RUNNING THE ASYLUM.

"You almost have to think that nutcases like the Cato Institute’s Roger Pilon, vice president for legal affairs, who believes that Social Security is unconstitutional, are behind the wheel, and behind five of the justices on the Supreme Court."

Almost? Please, Steve. What has happened is simple: Buckley Died.

He kept out the Kochs evil Daddy, he kept out the Welchs, his ideas were part of real academia, not the bought and paid for yes men of so ironically named "think tanks" which are simply the purchased constructs of some very evil and horrible people who Sir Bill himself termed, The Vulgarians, which just goes to prove being vulgar is not the exclusive domain of lower income citizens. We, at least most here on OS, remember the breadth of vocabulary the King of Conservatism had at his disposable, which makes the term, one he used regularly, even more informative and in fact very highly instructive and applicable to, for example, "justice" Thomas.

Too bad; Sooooo sad
Trenchant analysis Steve, as always. Let's see if Supremo Kennedy can talk himself into a rationale for supporting the mandate and make it a 5-4 vote in favor of Obamacare, rather than 5-4 agin. But your larger point, of where the country has gotten to, politically, is what's relevant here and vis a vis Social Security, Medicaid, all the other entitlements. There is a growing, stark, class divide, in the society. The poor, and working class trash, is seen as a millstone around the Republic's neck, and nothing would be more desirable for the top 20%, not just the elites, but the top 20, meaning roughly 60-70 million Amerikans, than squashing and rebuffing the importuning of the great unwashed bottom 100 million peons. (Other mid level peons, allied with and subordinate to, the top 20 will be managed, and also taxed, so that laborers, ass-wipers in old folks homes, gardeners, cooks, cleaners, food preparers, etc. occupying the 40-60 percentile range, will be tolerated as necessary to the functioning of the society.) That is the underlying socio-political dynamic that all the superficial legislating, adjudicating, and politicking is reflecting...but it is still too early for some fascistic political leader to outrightly condemn the bottom 100 million and recommend their euthanasia or exile to Mordor, or somewhere similar...wink
The problem people have with EMTALA is first, that people who are not citizens or legal residents of this country use the system to receive medical care and that costs those of us who are here legally millions of dollars annually, amounts now in the billions and perhaps trillions over time. This does not even take into account the millions, billions, and trillions that those here illegally cost us in other ways. The second way is that far too many citizens and legal residents take absolutely horrible care of themselves and put extensive burdens on the costs of all the rest of us because of their choices. Smoking, over-eating, lack of exercise, excessive drinking, drug use, etc. Why should any of us have to pay more for the bad habits of others? Third, this entire problem was created from the fact that, as usual, congress passed an unfunded mandate. This unfunded mandate is what has resulted in the explosion of costs to those purchasing healthcare insurance.

The great thing with the burial insurance argument is that everyone agrees that it is an unfair shifting of burden to others, but because the overall cost is small when diluted to a country of 300 million, no one is up in arms over it, but on principle alone, we all know it is wrong.

Instead of tattooing those who opt out of a national healthcare, why not instead tattoo those who wish to opt in? Both methods are equally prone to sabotage. I need a license to drive, so I have to go "get" it. If I want healthcare, I need to go "get" the identification needed to acquire it.

The real question that needs to be answered as a country is do we believe healthcare is a right? If so, do we believe any and all levels of healthcare is a right, or just basic care or some mid-level of care? Do we believe this right extends to legal residents? Does it extend to illegal residents? Does exercising this right require anything of the individual to keep it (exercise, diet, etc.)? Part of why we are so divided on Obamacare and similar ideas of universal care is because we are divided on the questions that need to be agreed on before we develop a program to deal with dispensing healthcare. The issue is so unique that there are no other issues that serve as adequate comparison.
We have a constitutional right to make healthcare a legal right. It's not complicated.
I don't understand why so many people present arguments for why obamacare is a good idea as if they were thereby arguments for why it can't be constitutional. Y'all get that those are two different questions, right? It is possible for something to be a good idea, and still be unconstitutional. It is possible for something to be constitutionally legal, and still a horrifically bad idea. The SCOTUS isn't supposed to be deciding whether it's good, or necessary, or wise. It's supposed to be determining whether it's LEGAL, according to the rules currently in play.
The other issue the debate brings to light is the limits of libertarianism. "Let them die," is not a tenant of the liberalism that brought this country into existence, regardless of how it shows up today in terms of an interpretation of the constitution by the judges who currently make up the court.

I agree that the SCOTUS is supposed to be determining whether the health care law is constitutional and not deciding the wisdom of the law. But I have no confidence that they will limit themselves to the constitutional issues. The Republican majority has proven to be very political. Remember why we never had a President Gore?

If the law is struck down, it will be for political reasons-plain and simple.

The federal government has the right to regulate interstate commerce. We all participate in the healthcare market. The healthcare market is interstate commerce. The congress can regulate this market. There is no real constitutional argument against this law.
So...if Obamacare gets shot down because nobody wants to be forced to buy healthcare, does that mean I no longer have to have car insurance and mortgage insurance?
Larry3000 is a perfect example of libertarian excuses for abandoning self rule. The "Revolution of 1937" he cites is actually the Court abandoning the Gilded Age corporatist Court precedents. These were never an extension of "Founding Principles," but an expression of 1840-ish Libertarianism, which is not even close to life in post Revolutionary America, but a perversion of everything self rule and the Constitution stands for.

So, as the Larrys of the world would have it, the replacement of the Constitution for the rule of elites that defines the forces our Founders fought against. This disguised in the aberrant concept of "Libertarian Liberty," a bigger oxymoron than Jumbo Shrimp.
Larry can cite a couple of constitutional revisionist-negationists to make his case, but what he cannot cite is the actual Constitution or Founding history in essence.

Larry....the boat for Libertopia is getting ready to leave the dock...all aboard!
Paul - Maybe you should be the Solicitor General. Everyone has an opinion but in this case only count. And it won't be 5-4 either. And if there is even one stating this is constitutional ti will be for show. They ALL know it is not.

This was over before it started. This entire mess is a result of the fact that the votes were not there for a true single payer system like other countries.

I for one could have lived with, but not like single payer. ACA is just a mess. I think many supporters it like it because they see it as a way to single payer by evolution rahter than vote of any Congress.
If it's ruled unconstitutional, it will be 5-4. It's political, not constitutional, despite your claim of knowing it isn't, which you couldn't back up if you contacted AAA for a road map. Claiming all Justices know it isn't is simply you not knowing what you're talking about.
I see we are wading deep into the jumbo shrimp here, but with Paul on the case I know we are in good hands. Kate and MarkHenry, auto insurance laws are state laws, not federal. And that brings up the whole Mishegoss of the Tenthers who have this 1840's Libertarian proclivity to rolling back the clock, almost all the way the the Articles of Confederation in saying that ANYTHING not explicitly accorded to the feds belongs to the states. So, with that point of view comes the whole let's let every state have its own RomneyCare, heck it works with auto insurance, but of course it doesn't work, it would be like living under the Articles of Confederation with a who's on first thing going on all the time. Basically, these are state rights folks. If they had been in control all these years, we'd still have Jim Crow and worse. Leaving that aside, there would still be chaos in insurance markets. And then you'd have insurance Texas and Arizona style. One shudders to think. And yet, you have all these people, some of whom are writing above, who can think of no reason except war to have a federal government. Are we nuts yet?
PJO, since 1937 there have been no meaningful limitations to Congress's legislative authority. There should be. You would agree. That's my point.

The court has allowed Congress to regulate noncommercial, interstate activity; intrastate, commercial activity; and noncommercial, intrastate activity—all under the guise of regulating interstate commerce. You know this.

Abortion? Interstate commerce. Conspiring to sell a senate seat over the telephone? Interstate commerce. A janitor's working hours? Interstate commerce. Your toilet bowl volume? Interstate commerce. A city's transportation system. Interstate commerce. What Howard Stern says over a radio microphone? Interstate commerce. Growing and consuming, by yourself, wheat or marijuana on your own property? You get the idea. It's all absurd. It all shows that Congress legislates in any area without limit, and it shows that the idea of Congress being a legislature of enumerated powers is a farce.

As I stated, the rule, as enunciated in Heart of Atlanta Motel v. U.S. (1964), is that if Congress has a "rational basis" to think that X "affects" commerce, the court will rubber stamp legislation regulating X. Without pointing to some express prohibition in the Constitution, show me an example where Congress would fail this test.
The point isn't there's no limit, it's that the limits you would apply, and for no other reason besides an ideological wish, ignore function, practicality and even majority opinion. For example, Medicare is unconstitutional, as your mentor Woods claims.

When you decide to embrace a heterodox ideology like libertarianism, everything starts looking like undue violations of liberty. I have no problem with denials of CC claims when there is, at best, an overly-attenuated connection to interstate commerce and no national problems states could or do address, but I would decide that based on the case itself, not some rigid, dysfunctional and dis-American ideology.

In the ACA case, there is obviously a strong and undeniable connection, which is why the ideologues decided to fabricate a new standard. Laughable to constitutional and legal scholars and anyone even somewhat familiar with logic, but that doesn't matter to the Federalists when the end game is to achieve a political-ideological goal.

Let me see you make a case besides ideological, focused on practicality-as-function and reasonable resolution. Something tells me that's not in your DNA. The reason I hold zero respect for rigid ideologies is any idiot can claim all gubmint is a theft of freedom, as it doesn't require any thought. The ones who offer a more detailed presentation that relies on a claim of ideology-as-function, or that ignore that and offer only a stand-alone concept of "liberty" are simply articulate idiots.

Got something besides a constant complaint?
It’s very puzzling to see all the uproar about the mandatory mandate (see J. Cole above) when the PPACA will actually only affect 2% of the population (5% if we include subsidies). As discussed below, The analysis said 98 percent of Americans would either be exempt from the mandate -- because of employer coverage, public health insurance or low income -- or given subsidies to comply.

Health Care Mandate Will Affect Few, Study Finds

Original study: Eliminating the Individual Mandate: Effects on Premiums, Coverage, and Uncompensated Care. Timely Analysis of Immediate Health Policy Issues (note: this study was not peer-reviewed.)

The real question that should be asked is how the ACA will affect direct and indirect societal costs. Interestingly, this has already been answered last month:

The passage of the 2010 Patient Protection and Affordable Care Act (PPACA) in the United States put the issues of health care reform and health care costs back in the national spotlight. DeVoe and colleagues previously estimated that the cost of a family health insurance premium would equal the median household income by the year 2025. A slowdown in health care spending tied to the recent economic downturn and the passage of the PPACA occurred after this model was published. In this updated model, we estimate that this threshold will be crossed in 2033, and under favorable assumptions the PPACA may extend this date only to 2037. Continuing to make incremental changes in US health policy will likely not bend the cost curve, which has eluded policy makers for the past 50 years. Private health insurance will become increasingly unaffordable to low-to-middle–income Americans unless major changes are made in the US health care system.

Who Will Have Health Insurance in the Future? An Updated Projection

(The Annals of Family Medicinewww.annfammed.orgdoi: 10.1370/afm.1348 Ann Fam Med March/April 2012 vol. 10 no. 2 156-162)

The US health care system is still doomed, but it will collapse only a few years down the line. This means that a complete overall of the system is needed.
Broccoli and cell phones . . . . My fervent hope is that the conservative justices all get cancer and find themselves without health insurance. They'll find out real fast the difference between broccoli and health insurance.
Excellent piece, Steve.

Legal disscusions can become technical and stop making sense, or at least any moral sense. Are laws necessarily moral? Is the constitution necessarily moral?

What's scary, as you say, is that people -- not judges and lawyers -- seem to have lost compassion. I'd like to think that humanity's general direction is towards greater decency and civility, but the healthcare debate has really been so demoralizing.
We are such barbarians. In Ghana, each family pays $35 for national health insurance. Two years ago, I was working in a refugee camp when they extended health care coverage to the refugees there. What exactly is our problem?
Paul - well how much do you want too bet? My money says at least one of your 4 will be on the unconstitutional majority.
"The only way to pay for it in proper, fair, measure is to enact universal health care and spread the costs to the widest possible risk pool, the entire taxpayer base." I agree. And also agree with Jennifer's comment, what exactly is our problem?
Steve, I'm not as well-versed on the constitution as you and Paul so I appreciate these explanations. I do think that a single payer system is much fairer and less administratively complicated so if Obamacare is gutted, I'd like to think that the Dems come back with that. But it depends on the composition of the next congress and I'm not placing any large bets on that.
By now I think I'm well known for offering very assertive opinions, so I'm a juicy target for the one who proves me wrong. If one of those 4 "liberal" Justices joins the Federalist majority in striking down the law, then you will have an exclusive on being the one guy who got the jump on me. While this is opinion, not a factual observation, you would still get some credit, and the admiration of every OS right-winger I have shot-down and whose avatar ended up stamped on the side of my CPU. You would get some measure of vengeance for the carnage I have inflicted.

However, you probably shouldn't waste too much hopeful anticipation on the outcome.

You may be interested in this OEN piece:

GOP Justices Ignore the Founders
Good grab. It expands on what I talk about in my first comment.

There is no such thing as a constitutional standard of a "limiting principle." That's something the Federalist Society jammed up Scalia, Thomas, Roberts and Alito's combined and redundant asses, so it would be there when they wanted a specious snack of contrived constitutional crackpottery.

This was a pure political set-up from Day One.
What I'd like to know is WHERE ARE THE CRIES OF DEATH PANELS NOW? If the Government gets out of the ETMLA business isn't that what we're in for, the mother of all death panels?
Paul - I am also a ripe target for my strong opinions and you may well be right and I will be eating crow. I t could go 5-4 for you.
BTW, you can label me right wing if you want. I am a fiscal conservative. And I know a lot of people that are very liberal in Austin, that want ACA, but see the constitutional problems.

I am not looking for admiration or vengeance.
I just think this is a bad law and needs shooting down.
As I have said here or somewhere else, single payer would have been the better choice and legal.

I was not against single payer it from a being taxed issue. I worry about the quality of health care.
"Today, the meme goes, every insurance purchaser pays an extra thousand dollars a year for unfunded medical care to uninsured patients who lack the means to pay for their care. That cost is generally shared by employers and employees in varying proportions."
Steve Klingaman

If providing emergency hospital care amounts to less than $1,000 for each covered employee, where do I sign?

Do you mean that the entire country is going through an almost civil war, a 2,700 page monstrosity of a Bill legislating a for the first time in the history of the country, a mandate that private citizens "must" purchase a service from a private vendor, fifteen panels are being created that will analyze every aspect of our healthcare system, change the relationship between doctors and patients, add 50,000,000 new uninsured to the insured pool, resulting in obvious rationing of services, and the list goes on and on...for roughly $1,000 annually!!

If allowed to stand, this unconstitutional legislation, will forever change the relationship between Big Brother Central Government and the people., Is it too difficult for so many people here to not understand that more power given to government to intrude into every aspect of our lives, by definition, means that we each lose part of our individual freedom.

The Founders fought a civil war to end such a stranglehold on the colonies. The Obama/Pelosi?Reid troika went over the line forcing an unpopular Bill through Congress, unread, a Bill with 2,700 pages already grown to 15,000 pages.
Joe Zollo,
Your analysis is beyond dispute.
Certainly when the Founding Fathers accepted Cornwallis' surrender at the Appomattox Courthouse, they never anticipated this aberration of the Confederate Constitution that is Obamacare.
No doubt that when Paul Revere rode through Atlanta shouting "Sherman is coming!" he also never anticipated that when General Lee moved on Yorktown that the 100 Years War was close to its end.
However, once George Washington arrived on the shores of Montezuma, John Paul Jones knew the Monitor would sink the Merrimac in the Battle of the Bulge, so his use of the atomic bomb on Hero Sandwich would be overkill.

Thanks for your concise recounting of US hysteria. Yes, Obamacare is surely unconstipatable! I would have never figured that out enema-llion years.
PJO, your ramblings on libertarianism are not even on topic. My reading of the constitution has nothing to do with "libertarian ideology." Back to my point. . .

I take it that you agree that there are no limits to Congress's legislative authority under the current case law. Even in case books, in the commerce chapter, there is the rhetorical question of what, if any, limits are there in the court's commerce clause interpretation. That's the whole point. It's what law professors jokingly ask their puzzled students. There are no limits, no thought experiment can come up with any. So the court should just stop the circus and announce that there are no longer any identifiable, objective, predictable limits. That would be fair and truthful.

"Function," "practicality," and "majority opinion" are strange tests for determining constitutional authority, and are nothing but euphemisms for government by judiciary. Interpreting written constitutions is not the same as a common-law judge resolving disputes between private parties regarding torts, contracts, etc.

Also, there is no such thing as an "overly-attenuated connection" limitation in the commerce clause test. All Congress needs to do is to say it has a "rational basis" to believe something "affects" commerce, dazzle the courts with "findings," and the court will rubber stamp the legislation. The connection to interstate commerce can be virtually nonexistent. I'm sure you've read Wickard and Raich.

The court has upheld congressional "surface mining" regulations, because Congress said it had a "rational basis" to believe surface mining impairs the "natural beauty" and value of surrounding land and thus "affects" commerce. The court rubber stamped this, unanimously, even though "natural beauty" and values of surrounding land are extremely attenuated connections to interstate commerce. The "volume of commerce actually affected," the court has said elsewhere, is not "relevant."

Again, my point is that since 1937 there have been no meaningful limitations on Congress's power, which can not possibly be correct. This should be an obvious statement. A wild imagination can not come up with something that fails the court's test. This illustrates that we are not living under the Constitution as ratified, which granted Congress only enumerated powers. Any justice subscribing to the post-1937 case law must uphold Obamacare and advocate for a total Supreme Court withdrawal from commerce clause case review, because the whole thing is currently a sham anyway so why bother with the make-believe procedure.
Just what I expected. You can't cut loose of your specious claims in order to craft an argument for a workable system. You're all about whining, and that based on BS babble about the commerce clause and "unlimited" power. Why? Because it's an ideological jerk-off.
If you can't offer anything related to governing, then why act as if the subject interests you outside of un-governing? You offer no solutions, just complaints.

Wickard was plainly within the scope of the CC, in order to prevent the total collapse of the wheat market. Too much being grown, overseas markets incapable of absorbing it, the result being a collapse of price. The argument for Wickard is perfectly reasonable within the scope of economic function, just not within the scope of those who whine about the unlimited nature of what does have limits. Again, just not the laissez faire stupidity ideology requires.

Raich was a big stretch, but one "Originalism Optional" Scalia was willing to embrace. Juxtaposed against his Obamacare crap-slinging, an exercise in high court hypocrisy.

The limitations are both political, which was expected when the CC was drawn, and within the Constitution in that it cannot violate other elements. However, it is very general, which doesn't fit the story line for those pointlessly carping about phantom limitlessness.

The rest of your screed is just more unsupportable babble, evoking phantasmagorical what ifs and as ifs and is-buts. At the end of your painbow, there's just another painbow. The Constitution was written by people who believed in government. It's no small wonder it confounds those who don't believe in government.

Try to remember these drafters also forbid corporate involvement in politics, often set the profit allowed to said for-profit corporations, set single-task limits for them, etc and etc. They were not brain dead libertarian anti-gubbermint, laissez faire ideologues. Your founding Fathers are Bastiat and Malthus in the main, with a smattering of selective JS Mill and a few others. Libertarianism is not an American-centered ideology, it's more like a global religion. It ignores function, and fulfills that requirement by being totally dysfunctional and nation-destructive.

But Larry, I at least expected you to bark some dogma about free market healthcare and point the finger of blame at our non-libertarian gub'mint. You disappoint.
Paul - maybe Larry did not offer any solution. But I did and will. A single payer system similar to Canada and European countries. Obama had control of both houses but could not get the votes for it. Why not? Please don't say it conservative fault. He didn't a single conservative vote. I guess he did not have enough sacrificial dems to slaughter for single payer.

You probably know history better than I. Did FDR have the same stacked Congress? I don't know, but he got his agenda through.
Had the revenues needed been a tax, specific like FICA and Medicare payroll, or just from general revenue, we would not be in court the last 3 days. Obama simply did not get the obvious solution. Maybe he as not a good enough leader. Maybe the country did not want it. I just know that he and congress settled for a horrible piece or legislation.

And I don't understand why it is so hard for you and the judges to understand the difference between regulating the farmer and regulating me. Does a milk producer need to homogenize it? Yes. Is my choice of milk severely limited by this? Yes. But am I in the milk market? No. I don't consume dairy for health reasons. Must I buy milk so you can afford it. NO!!

You assert the framers were for government. Of course they were. But I and many, assert they were for limited gov.
Why the enumerated powers if no limits.

What I really don't understand, and no on hear will answer is this. Do you really think there will always be an administration that will use this power to your liking?

I give you a hypothetical that is not absurd. Based of the same notion that we are all in the health care market.
You are undoubtedly a consumer of steel, or lets cal it metals. Do you want congress to make metal affordable by forcing everyone to buy an AR-15 and 1,000 rounds of .223 ammo? If ACA is upheld then so can this. And I don;t know why you think it won't happen. Why do you assume this power will be used for things you like? It will undoubtedly eventually be used to everyone's dislike.
Is that what you want?
Solid piece, Steve. "The truth is, you can’t deny compassionate care and maintain a civilized society. The only way to pay for it in proper, fair, measure is to enact universal health care and spread the costs to the widest possible risk pool, the entire taxpayer base."

That statement, and all the hoopla reveals why this was bad legislation from the start.

Great stuff here but, I think we get lost here sometimes defining what compassion "is" when we talk about the end result.
I do fear the Government. Simply when I "absolutely positively need to get a package "THERE" overnight', I look to FEDEX or UPS . The Post Office does a pretty good job with everything else but, at a staggering cost.
I read quality of care once in this whole thread-(Joe Cole). When my boy or wife is under the knife, if we are honest, we all want Dr. FedEx and Nurse UPS at their side.
We all have dropped something in the mailbox and hoped it got their on time. To see a loved one pushed through the double doors is unnerving enough, do we trust our government to create a system that gives our children's children the best chance of being delivered on time?
King of the typos I know but, I am multi-tasking-so sorry
Paul, apparently you need to read my words better. Exactly what is YOUR point that "we" (and who is this "we") have a constitutional right to make healthcare a right. You do have this constitutional right? I think that's a decision for SCOTUS and not you. You may think you have the right and you may want it to be a right, but it is not your decision on whether or not you have it.

Even still, I never said anything about that. But there is widespread disagreement on whether "we" want and have healthcare as a right and even if that answer is yes, there is widespread disagreement on just what level of healthcare would be included in this right.

Kate, do you really not understand what the difference is between this law and laws against uninsured drivers? Do we have any laws concerning uninsured drivers that approach 1000 pages, let alone 2700? Apparently YOUR solution works perfectly because otherwise we would not have creations of insurance that people carry to protect against uninsured and even under-insured drivers. Oh wait, we do...clearly your laws against uninsured drivers are working perfectly. What exactly happens to an uninsured driver when he or she gets into an accident? Does he or she still get his or her car fixed? No. So would it be your position that those who break your version of this law transferred to healthcare no get "fixed"?

Are you able to see a difference now?
And yes Kate, if this law is upheld; congress CAN then take the step of both forcing you to eat broccoli and banning you from drinking alcohol, or penalize you for not complying. After all, how you take care of yourself affects the costs we all pay for health insurance which we all are mandated to participate in, hello...that's inter-state commerce, and by default, congress has the authority over it. And rightfully so, ever heard of the obesity epidemic??? I have no problem paying for all these fat people to be in my healthcare pool as long as they have to get their fat butts up and stop filling their faces. I have no problem penalizing smokers even more harshly. It is not my responsibility to pay for the bad decisions of others.
There is a huge cash market in medical care, and many patients do not realize that (for the most part), with some work on their own behalf, they can get a lot of regular care, labs, imaging for cash at much much lower rates than what is billed on insurance. Just yesterday I located a $400 MRI for a friend with a ruptured disk. I also had a chat with her that going to the ER was the only way to get emergency health coverage. She has always been healthy, and active, and self reliant but some things you just can't get around.
Part of how the problem has gotten out of hand is people with insurance using it like a credit card, and in turn, doctors and practices being forced to continually bill up so that their measly remittance (allowed amount, on the EOB) is paid. The AMA repeatedly tries to squash any alternative care, which is part of people trying to proactively care for their health by not going to hospitals, avoid going on expensive medications, avoiding surgeries, and insurance rarely if ever recognize them as valid out of pocket costs toward deductibles. On the other side, we have fully insured individuals who see no point in taking personal responsibility for their health because their insurance pays for it.
The bigger questions and smaller questions fit into the puzzle- emergency care should not be for a cold, and if you are needing a knee or back fixed, it should be fixed regardless of ability to pay- one cannot be a productive citizen if they are disabled. And easier, more accessible primary care for cash should abound. Licensing more professionals who are not MDs to make medical decisions so that the costs go down, and simple medications are more easily accessed is necessary- but is continually fought over by the AMA- who only represent about 25% of MDs, and certainly not the rest of medical professionals in this country. See whose writing these laws about access, about policy, about distribution, and it's the 1% of medicine- not the 99% of medicine users.
We have a constitutional right to make healthcare a legal right.
That's not a statement that needs clarity, but you don't know what you're talking about, so clarifying something so simple and true would only result in you still not knowing what you're talking about.
However, the first federal single payer health insurance and care plan was passed in 1798, signed by Adams. But what did he and the 5th Congress know about the Constitution?

PS--look up the difference between a constitutional and a legal right. For what it's worth.

You sure do a lot of comments where you sound certain of what you're saying and evidently, that you're educating somebody.

Such as this:
"americans cannot be forced to buy a commercial product or service, unless there is a constitutional amendment to that effect."

You should explain that to the 2nd US Congress, that, in 1792 passed the second Militia Act, requiring every man between the ages of 17 to 45 to:
"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 power 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..."

This private purchase mandate was enforced by a financial penalty, ranging from a month's pay to a year's, and possible court martial sanctions beyond that.

George Washington signed that into law. But what did he and Adams, and many, many of those who drafted and ratified the Constitution know? You should, perhaps, curb your enthusiasm for your thoughts.

Most Americans wanted a single payer system. I'm not a fan of the private purchase mandate, but the question was constitutional, even though I now know the game was rigged.
PS to Citizen--
Medicare is constitutional. All conditions of that law being met, you have a legal right to Medicare services. Maybe that will help you understand.

PS to baltimore--
Medicare can be delivered through private insurance brokers, such as Blue Cross. Also, the products and services used are not government created, but are also private market. Therefore you are commandeered to purchase private market services and products by a law that has been upheld as constitutional.
You are right, Steve, we are getting down to questioning the fundamentals of what makes a nation and national community even possible. Are we a nation or just a geographic expression of separate individuals all occupying the same space simultaneously.

But what principle separates the government's ability to confiscate our money or compel its expenditure for a social purpose like health care and the ability of a government to confiscate our bodies in a draft that sends us off to war. Conservatives will say that national defense is a legitimate role of government. But why is the threat to the nation from foreign enemies any greater than a threat to its citizens who are uninsured if more Americans die due to ill health than are killed by our foes?

The Supreme Court has no power except the credibility it has with the public and the habit to obey. The Court is at a real crossroads here and I hope they know it. It can't be good when members of the Court are mixing socially with parties in an important case like this, or when their wives are earning money from one of the sides.
PJO, you must be reading another debate. I don't think the framers/ratifiers were anarcho-libertarians, so you're swatting at straw men. I'm focusing on the commerce clause case law and why its absurd for lacking any meaningful, predictable limits.

I argue that there are no identifiable limits to the court's post-1937 commerce clause interpretation, an argument based on reality, and one that most law professors and legal scholars would probably agree with.

The court should therefore stop hearing commerce cases and stop the whole pretense.

Your response: you don't seem to agree or disagree with this argument, but rather complain that I make this observation. You then point out that the founders weren't anarcho-capitalists.

Got any other non sequiturs to waste my time with?
Paul, it appears you still don't understand the questions being asked. Yes, you have the constitutional right to make healthcare a constitutional right...but that point is absolutely pointless. You have the constitutional right to make ANYTHING a constitutional right. It's called amending the constitution. Ever hear of Prohibition? Suddenly drinking is no longer allowed...constitutionally...well until we repealed it. We could do this with anything. We could constitutionally remove the right to healthcare, or to limit how far the right would go, or we could affirm it. THAT is the question people are divided upon. Until that question is resolved you aren't going to solve the problem of coming up with a mechanism to dispense something for which people don't agree on how much of it (healthcare) of even if it should be allowed. You can still have Medicare and choose to no longer allow heart transplants to be a part of can even do it constitutionally. You could create or disassemble any of it any way you want. The SCOTUS at any point could declare anything passed by congress as null and void, the SCOTUS at any point could overturn any decisions made by previous courts, including their own. SCOTUS gets to define intent and interpret how ANY language should be read.

You have a constitutional right to make healthcare not a legal right too. Big deal...
You had me until the last paragraph. I just can't go there. I understand why you proposed it though.
Paul - I know you are fielding a lot of posters, but I wonder why, besides the fact that I am not a well liked person here, I can rarely get an answer to a simply question. For that matter Larry as well.

I simply ask do you think you won't one day have to buy something you may not like such as a gun (and interesting you brought up the militia law).

And Larry asks should the SC stop hearing CC cases.

We can both pretend to be constitutional lawyers, but we aren't really. And I grant you seem to have more case history
at hand than I do.

But I am asking if you really wanted this and the potential ramifications. And by virtue of asking you I am asking everyone, yet no on answers .
Does everyone here really think this precedent won't bite them in the ass in the future?
Single payer would be constitutionally more simple. It would be based on the tax power, not the commerce clause. Without researching the history, I would assume that Medicare and Social Security are based on the power of Congress to tax for the welfare of the public. Though frankly, I don't see the constitutional problem with ACA under the commerce clause, either. There is most certainly a rational basis for it. Red herring arguments such as whether you can be forced to eat broccoli are silly and any justice who blurts such a question should be embarrassed. Under a rational basis test, the government has to articulate a reason. It's not a terribly restrictive test, as someone pointed out, but it still requires that the underlying reason for the legislation be *rational*, not trivial or spurious.

I do not like this law. I agree with Joseph and others who said it was a bad law. It is certainly not the most elegant solution. But that is not a constitutional requirement. It just has to make sense. Today, an uninsured individual can cost their community and the federal government hundreds of thousands of dollars. Prices are skewed because the fundamental principle of insurance, the spreading of risk, is not followed. What's new is not the concept of an individual's actions affecting interstate commerce, it's the application of the risk-spreading issue to the commerce power. That's what people are having a hard time wrapping their heads around.
Larry wants to say the Commerce Clause has no limits. That is not true, as I pointed out, so now Larry wants redundant confirmations. What Larry really wants is to weed-wander through some jurisprudence, which can be fun, but won't resolve his false premise that there are no limits. Not all constitutional questions reduce to some "limit" beyond political will. It's called democracy. His statement that we should just quit hearing C Clause challenges is a fallacious all-nothing argument which, ironically, removes one of the limits he says don't exist in recognizable form. He's just blap-flapping. Same is true about his excuse that Most Would Agree. Total BS, and unworthy of serious consideration. The point I am making, and which is unquestionably true, is there are political limits as well, and the unpredictable nature of C Clause happenstance DOES mean you cannot draw "Bright Line Limits" to the extent he wants to see them. His is also an extension of the "Illiterate Founders Theory," which says they were just too illiterate to know how to write those "firm limits" into the clause. The obvious point is THEY DIDN'T WANT TO. What Larry wants and what they wrote are two entirely different things.

Who planted the delusion in your mind that there has to be a constitutional amendment to apply laws that general powers do not prohibit? You're doing a lot of talking to arrive at a totally wrong conclusion. The right to have healthcare laws is already there. It doesn't need an amendment, but to say it's not allowed would. Same with Prohibition. As far as the idea of writing an amendment to affirm what is already there, what's the point? There is no point. Let's write an amendment affirming the Constitution is The Supreme Law of the Land. How about an amendment that affirms it was written in 1787?
Your problem is you have a false premise and are talking in circles trying to clarify your false premise, then starting anew, as if it's written on a Mobius strip. You're not making a lick of sense, and are doing that at great length.
I neglected to address you directly. Forgive me that transgression. Given that you cannot prove your premise, I was left to imagining why you were drawn to that flawed premise. Given the Constitution, in the whole, is in serious violation of libertarian dogma, I offered the explanation that your ideology was compelling you towards stating your false premise. An expression of angst over those Founders not lopping-off 98% of the Constitution to reduce it to a libertarian template. So you describe it as having no limits because you think it should be as stunted and limited and as liberty-absent as libertarian ideology.

Forgive me if I'm wrong about that, but if I am, please provide me the genesis of your thinking that leads you do saying there are no limits where obvious limits exist. I have to admit that doesn't interest me, but perhaps it would be cathartic. I'm only thinking of your well-being.
I don’t know what’s meant by “how far the country had moved to a very particular kind of conservatism.” After all SCOTUS struck down much of FDR’s New Deal - ergo his threat to pack the court. Change?

But the question “would they finally come to their senses and embrace a national health care solution?” begs the question. The majority might very well embrace a national health care solution - just not this one.

I won’t argue with your policy arguments but this too begs the question for they were all asking: How does this pass constitutional muster. That really is the only question the court can and should decide. Law - not policy. Obama Admin hitches it’s wagon to the star of the Commerce Clause but this is not regulating commerce (as, for example, fair housing laws or interstate public accommodations) but mandating a certain kind of commerce – creating commerce

So SCOUTS might very well embrace a single payer national health care solution - just not this one. You point to distinctions with no legal difference. The difference between forced funeral insurance (cremation) or broccoli and health care insurance that are the same in kind (all commercial products) but just different in degree and that’s the way the law works. Equal protection.

That’s the danger of setting a precedent. If you impose a mandate on private health care that precedent, as a matter of law under the 14th amendment ‘equal protection’ clause, opens the legal door for all the other options the justices expressed concern about. Equal treatment under the law. All classes of products must have equal treatment before the law. It’s the LAW. The constitutional question becomes: On what rational basis can the law justify treating one group of commercial products differently than all other groups? That’s the inescapable, and sole, legal question. And they are right. The equal protection clause mandates that if the product of health insurance can be mandated that set precedent allowing Congress to mandate on other products and those producers will have a perfectly sound legal argument - the legislature can ergo grant us equal protection under the law too. And with all the power corporations have over legislatures do you really think that won’t happen?

I’m not saying you are wrong (you are not) but that you just don’t confront the only problem the court must address — the law and it’s already legal mandate under the doctrine of equal protection.

Granting the legislature power to legislate here does grant the power to make the same kind of legislation there. It’s an inescapable consequence. The legal question is not health care per se but legislative power. And the court does not have the power to say, “Okay. But for health insurance only.” I can not single out one product for disparate treatment to the exclusion of all others. That’s not a power the court has and granting it to a legislature gives every other producer of anything the legal right to mandate it’s purchase if the legislature thinks its sound public policy. Disparate treatment. We do this with tobacco and alcohol but we call it what it is in fac: taxation. The traffic in products is a legitimate commerce clause restriction. Who must pay what costs is not - that’s taxation.
Wait a minute Steve: Come to think of it the comparison of auto insurance and saying that “auto insurance laws are state laws, not federal” is a distinction with no legal difference here and you beg the question. Not so fast.

The comparison goes to the heart of the only legal issue before the court - legislative power. THE question (the only question before the court) is: Does the legislature (in this case Congress) have the right to legislate in this arena. Obviously, if the states have the right Congress does. It’s axiomatic that no state legislature can do what Congress can NOT do and to admit a state has the right is to concede Congress also does. No brainer. THAT ASTUTE OBSERVER MADE THE PERFECT ANALOGY. Yours is a distinction with no legal difference.

So: What is the distinction that grants legislative power in the area of auto insurance but not health insurance. It’s a perfect question. What did these SCOTUS arguments have to say about that?

Obviously I have a choice to not have a car but I don’t have a choice to not have a body. But still even I beg the question: What gives a legislature (any legislature) the constitutional power to mandate auto insurance but deny it the right to mandate health insurance - both products are of the same nature. So we have to stay with the only issue before the court: legislative power.

The auto/health is a prefect analogy and the state/federal is a false one.
Fran - I think you are wrong when you say it is a no brainer.
The auto vs health is not a perfect analogy to support ACA.
No one forces you to have auto insurance just because you are alive. Only if you want a car. And if you decide no to have a car and insurance, my rates go up, but that is too bad for me, not you.

As for state vs federal power , the judges did have something to say about this. I don't mean to be a smart ass, but if anyone has not listened to the audio, they should.

It was pointed out the the states have police powers (not meaning crime stopping, but regulating) that are NOT given to Congress in the enumerated powers. All powers NOT listed in the enumerated powers are left to the states. The state can impose things upon itself that the feds cannot impose on it. The states cannot violate the fed laws/constitution (such free speech/discrimination) but they
can impose restriction on themselves the fed cannot.

I would have to assume that if a state tried to make you buy car insurance just because you are alive, the people would have the same argument in federal court that is going on right now. The citizens would say that use of power by the state is unconstitutional.

Do you want to buy car liability insurance if you own/drive no car, in order to keep my rates down? Do you want to buy home owners insurance for liability/fire/theft if you own no home just to keep my rates down.

Should we all buy a specific policy to cover loss a all musical instruments because few of us own extremely expensive ones and want insurance to be cheaper. I would argue that almost everyone owns some kind of a musical instrument sometime in there life. That means they are in the market and should insure the loss of such item, regardless of its value.
PJO, I've already given my explanation why there are no limits to Congress's discretion under the court's commerce clause interpretation.

Maybe it's that you are unfamiliar with the case law to fully appreciate the futility in saying that the post-1937 court has commerce clause limits. That's forgivable. I'm not sure what "political limits" are, but I'm sure they are not judicial questions.

Again, if Congress has a "rational basis" to think that something "affects" commerce, and then regulates that thing, the court will rubber stamp. That's the silly test, which means the court will never find any limits ("rational basis" tests are never violated), and which means Congress is really a legislature of general and indefinite, rather than limited and enumerated, powers.

Leading architects of, and advocates for ratifying, the Constitution explained that Congress's power was enumerated and limited and that therefore a bill of rights was not necessary. So much for that idea.
Joseph: Read again pleas. That is the issue. The question presented was that auto insurance is ok because that's a state law not a federal law. The question here is what in the Constitution permits a legislature to make law in this area. Obvious is a state can legislate on an area (demanding the purchase of a produce) the fed Const allows it. You can not make state law it the federal Const would forbid it. Erg if as state can the feds can. No brainer.

You are going way off into Neverland and not showing a good comprehension of the legal issues.

First of all ‘police powers’ *do* include crime stopping as well as other regulation and we are not talking about ‘want to but' insurance but required to do so. But products: guitars is one of your examples.

In any event you are confusing apples with oranges. We (and the court) are talking about two different doctrines. States Rights/Federalism and Preemption

You are referring to Article I, section 8 and the 10th Amendment. Article I, section 8 of the US Constitution sets forth the authoritative capacity of Congress which may only exercise the powers that the Constitution grants it, subject to explicit restrictions in the Bill of Rights and *other protections* in the Constitutional text. The 10th Amendment states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This is the states rights argument. Federalism. But enumerated powers are broad and sweeping. Such as the power to do what's *necessary and proper' to *regulate commerce*, provide for the *general Welfare*. It’s silly to say that health care or auto insurance are not “enumerated” in the Constitution; neither are segregated lunch counter but clearly congress can regulate there. Regulation of commerce is an enumerated power, health and welfare is an enumerated power. Congress can legislate almost anything under the commerce clause or the necessary proper clause - almost.

That’s the issue the courts will decide. That is not what I am talking about. If the Fed wanted to regulate and auto insurance mandate it could because that power is *enumerated* as *necessary and proper* to protect *health and human welfare* as well as *interstate commence* etc — all *enumerated powers*.

If it does then state laws will be preempted and the state may not legislate in that area except as within the fed law. Preemption.

My only point is that any law a state makes must still pass federal constitutional muster. If the state can mandate auto insurance that must be unmissable under the fed Const. States can only grant more protection than the fed but not less.

So the auto/health insurance is still a good analogy. The fed could lake law preempting state law and mandate auto insurance and you can’t argue that auto insurance is not *enumerated* It IS under *commerce* and *interstate travel*. Nothing in the U.S. Const says auto insurance is the exclusive domain of states since it’s not mentioned in the Constitution but still it falls under *enumerated*. That’s the issue here. The ONLY issue. It’s not the courts domain to judge the policy arguments - they must defer to the legislature as long as the legislature is within it’s federal bounds. THE ONLY QUESTION HERE IS BY WHAT AUTHORITY MAY CONGRESS REGULATE HERE. If every judge hates the law they may still not strike it down IF it’s within legislative bounds. Stay focused on that.
As I suspected, some would advance the notion of a Mother of All Incentives, which I advanced as satire, as a straightforward solution. Here's a letter ("No Care for Freeloaders") that the Minneapolis Star Tribune somehow saw fit to print that proves at least some of us are getting meaner:

"As a conservative, I am a strong believer in personal responsibility: You make the decisions; you take the consequences. Big government shouldn't be able to force you to buy health insurance. But if you make the decision to have no insurance, you need to take the consequence of having no health care unless you can pay for it out of pocket. Don't expect me (through my insurance premiums or my taxes) to pay for it for you.

The laws on the books (before Obamacare) force emergency rooms to treat people who come in whether they can afford it or not. This isn't freedom, or free-market capitalism; it is just government health care for freeloaders. As soon as the Supreme Court overturns Obamacare, I hope and expect that the true conservatives in Congress will pass a "No Care for Freeloaders" law -- if you don't have insurance and don't have a big wad of cash in your back pocket, you sit outside the hospital doors and stay sick, or die if that's what it comes to. At least you will die proud to have kept your liberty.

This just might have the same effect as the "individual mandate," since no rational person would decide not to get health insurance if they had to live or die with the consequences. If the court does strike down Obamacare, "No Care for Freeloaders" might just be our only path to universal and efficient health care.


Let's say Michael gets his way, and after there is no Affordable Care Act, or at least no individual mandate, EMTALA, too, bites the dust. There remain poor, but otherwise seemingly healthy twentysomethings for example, who, feeling invulnerable, forgo insurance, despite knowing they have no access to uncompensated care. Let's say, one, or several tens of thousands, experience conditions like acute appendicitis. Barred access to care, in a strange city without family assistance they are turned away from hospitals to...what, "die with the consequences, as Michael advances? We are talking about young people with great promise, large student loan bills and perhaps questionable judgement about health risk factors. Now dead. But at least we have preserved Michael Schwartz's principle of personal responsibility. "You make the decisions; you take the consequences." Really?
Face it, if they had wanted something besides the standard limits to apply, including political will and ability, they would have accounted for that. Your statement there are no limits is wrong when said once, and bordering on inane when repeated.
Those who wrote and ratified the Constitution simply do not agree with you and never did. If you want to make some desperate "originalist" argument, I'll be happy to shoot that down as well.

Congress already has the power to mandate private purchases. The first time that happened was 1792. Mandating insurance purchase would no more lead to mandating any other market purchase that wasn't passed by Congress under the Commerce Clause than political will and ability would allow.
Congress could regulate auto insurance, the question is why would they want to?

The limits are that the law not violate other constitutional provisions, is to a certain degree of significance, related to interstate commerce, and there is the political will/ability to pass the law. Unless the SC applies their new creation of the specious non-activity, those are the limits.

However, explain how John Q Citizen is not already within the healthcare risk pool. It seems the difference is between paying and non-paying.
Cogent arguments you've made here -- too bad they won't receive a fair hearing by the Supremes. If healthcare is a right -- and EMTALA says it is, and in my view the Preamble certainly implies that it is as well under the "promote the general welfare" clause.

Some hardasses argue the Preamble has no legal status, but that's a specious argument. Surely the mission statement that precedes the Constitution should enjoy equal, if not superior status, to that which follows from it. Pinheads are free to disagree.

But frankly, all that's beside the point with this Court. There is no logic involved in these deliberations other than the logic of politics.

Listening to Scalia play this deadly serious business for laughs -- yeah, Antonin, lung cancer is really funny -- disgusts me. He strikes me as Rush Limbaugh for those with an education. This twit is the most out of touch and over-rated of the bunch. Sure he can Jesuit with the best of them about how many angels can dance on the head of a pin -- but he has zero -- NONE -- compassion -- unless it's for the rights of poor maltreated corporations. He is a perfect negative example of why Obama used empathy as a criterion for his appointments.

But by a small margin -- a very small margin -- he's better than Clarence Thomas, whose opinion was bought and paid for long before the Court ever took the case. Thus he sees no need to embarrass himself by asking questions -- he'll just let his clerks hand in their homework assignments and sign his name to them as his "opinion". Call Clarence revenge of Pappy Bush and Lee Atwater.

As I said previously, the only hope I see of Obamacare standing is if either or both Alito and Roberts decide in favor of insurance companies, who are after all the real beneficiaries of this godawful bill.

If the legislators in either party had any guts, they'd simply have adopted the Canadian system whole cloth, or at least made Medicare available to everyone and taxed everyone for it. But that was not going to happen.

The only real saving grace for the ACA is that it may end up being the proverbial nose of the camel in the tent. That puts me in mind of the old joke about a camel being a horse designed by committee. Well, this camel is lame and it has lumps instead of humps. Alas, I fear when it comes to real healthcare reform, we'll never get over the hump.
PJO, how am I wrong? Give us an example of a thing or activity in our daily lives, that if Congress should legislate upon and regulate, the Supreme Court will strike down as unconstitutional for being beyond the commerce clause authority.
P.J. As usual, as always, I can't untangle your snarled syntax of hearsay conclusion totally unsupported by any credible authority. My eyes glaze over.
Of course we understand that "It is possible for something to be a good idea, and still be unconstitutional", just as we understand that something can be legal and still be grossly unjust. Or as Anatole France once observed:

"The law in its infinite majesty . . . forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread."

Or if you prefer a biblical reference, Jesus said:

"Man was not made for the Law, but the Law for Man."

I think you catch my drift. Human understanding evolves -- or at least we hope that it does. To suggest the view that every matter was addressed with specificity in the Constitution is not only Absolutist, it is Absurdist.

The Founders intended that document to be flexible and pliable, else they would have been a damned sight more specific about what was in it. Obviously, they were a helluva wiser -- or at least more principled -- than the insurance company executives that drafted the ACA and ran it to 2,000 pages filled with bennies for those who don't need the govt's help.

The bill could have be written quite simply, on one page or so -- you know, like Paulson's bail-out proposal for trillion-dollar bank bail-outs. To wit:

"We hereby adopt the Canadian healthcare system.:

or failing that:

"We hereby declare Medicare available to all citizens."

But thanks to the same conservative -- nay, reactionary -- crowd that once proposed and supported mandates, that wasn't possible. So we were left with this atrocity, which we ought to accept because it's at least a step in the right direction, rather than another step backward, which is perpetually the wont of those who are not conservative at all, but merely backsliders.

To cite another example, Wall Street corrupt but probably "legal" practices over the last decade or so are desperately in need of reform. But alas, political cowardice prevented a proper solution there, too.
Such inequities and dubious legalities need to be addressed, even if the Constitution has to be "curved" a bit to do so.

There's nothing new about a broad interpretation of the constitutionality of new laws, it's been done from the founding; and has been mentioned here and elsewhere, it was done extensively with the New Deal.

What grown-ups understand and accept is that desperate times call for desperate measures. Reactionaries prefer instead to pout and whine and aspire to the "good old days" that never existed -- unless one counts the Fifties, when the maximum tax rate was 90% and unions were their most powerful.

Well, if that's you're argument, count me in -- I'm willing to go back to unions and high tax rates for those who get the most from govt and proportionally pay the least for what they get.
I simply pointed out the flaw in your premise. That I used far fewer words to negate it shouldn't glaze anyone's eyes, so I'll assume your eyes were glazed by reading your own wordy and flawed analysis. The equal protection concept doesn't apply here. It's absurd to think it would. You don't really know what you're talking about, to respond in kind (but with the accuracy you avoid).

If Congress had wanted to use the power affirmed in 1792 to perform the extrapolation you falsely assume would be an unqualified extension of power and, strangely, something new, they've had 220 years to do so. So far, it's only happened again in a direct way recently. If you were thinking there could be court challenges to apply this power to anyone or any entity besides Congress, you would be wrong on that as well. That's true whether the plea is based on equal protection or equine proclivity...or iniquitous puffoonery.

You're grasping, as usual. Now you want to move the goalpost to "in our daily lives." That has no bearing on the point of limits. You're as aware as I am of the limits that have been applied recently, and trying to figure out some example to prove a point that has no relationship to the known limits could only result in either affirming those limits or become a contest of non-sequiturs.
The Hunger Games. Not so far-fetched after all.
Sorry PJ but you never ever "simply" say anything and I can't untangle that snarled syntax either. Few things are more tiresome than a blogger who tosses over some cryptic 18th century erudition to tell us where SCOUTS whet wrong. Quick, post your phone number for I am sure at last five justices will scramble for the advice they and all their Ivy League clerks so stupidly overlooked.
I'll reiterate and reduce it to something anyone can grasp.

You don't know what you're talking about, but do it at great length.

I'll give them your number so they can explain those elementary concepts you don't understand. You were wrong. It's that simple.

I know if you could offer a factual rebuttal, as I did for your comments, you wouldn't have to resort to whining.

Nobody in the Court cited the 14th Amendment "equal protection." Why? Because it DOES NOT APPLY. It's not what grants or refuses Congress the power to legislate a mandate. It has zero application. It is not a consideration. Congress already has that power. It can exercise it anyway they wish. The ACA mandate case entered the Court with the presumption of constitutionality. It is still perfectly constitutional. If the specious arguments used prevail, and private purchase mandates are stricken down based on the idea you cannot force somebody into the market in order to regulate them, THEN such an act will be unconstitutional. If held constitutional, it will owe nothing to the 14th amendment. It cannot be extended by anyone because of the 14th. Congress could legislate other mandates, but that wouldn't be because of the 14th. The 14th doesn't apply in this case. Forget the 14th.

There. I'd ask if you're satisfied, but I don't expect that. I'm just shooting for "educated" on this point.
Fran - I realize police powers DO include crime stopping. I was just pointing out it is more that that.

I think you are w3anting to argue that the enumerated powers can be interpreted as broadly a you would like thus anything a state can do, obviously the fed can do.
Will I disagree. But who am I?

Listen to the day 2 audio. The judges that count have something to say about it.

I still say a stat requiring car insurance for everyone without a car would violate fed constitution under same argument as the ACA.

But it does not follow that because states can mandate insurance of "drivers/car orders" that the fed can.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Do you not understand this quote. No, the states cannot violate the constitution. But it clearly says the states can do some things to itself that the fed cannot do.

Just because the state can do something to itself does not mean it is also within the fed power. It is not. We can argue it all day and each have our own logic but again I refer you to the judges comments/arguments on day 1 and/or 2. Listen to it all if you have not.
Fran - maybe there is a moral imperative for national health care and maybe the founders would have embraced it.
Great. So lets get something like Canada and/or European countries.

Single payer may actually be the best thing for me personally. ACA was a bad solution with political exemptions all over the place. thus defeating the purpose. I would argue that the exceptions violate "equal protection" but it not argued. I simply don't want the implictions of the CC power or the unfair exemptions.

A hike in income tax or a specific tax does not open the the door like ACA would.

Let them go back and get single payer. I will accept that because it has no other implication other than Congress can tax. We all already know that.
I held back a bit in case you replied, Fran. But here it is anyway, an inapplicable 14th amendment examination.

It is a state/federal "Federalism" question of the commerce clause. If it were addressed as a "liberty" question, under the 5th/14th as substantive due process, then the Massachusetts law could be taken down if the federal law was. If the mandate is stricken, you may see this argument anyway, but it wouldn't prevail. If a "liberty" sdp question, it could threaten Soc Sec and Medicare, which are strictly within the Gen Welfare spending clause, not commerce.

However, it's a commerce clause and, to some smaller extent, a spending clause question. This is defined by application and intent. It will be decided by declaring it constitutional, or as exceeding the C Clause because non-purchase is described as non-economic and therefore not commerce.
The 14th, as I've heard before, doesn't apply, either under equal protection or substantive due process.
PS-- Note that, despite all the Tea Partarian, conservative, libertarian, right-wing blather about LIBERTY! in this case, the challengers didn't dare raise 14th substantive due process, as it would have been an attack on Soc Sec and Medicare. Though they say (wrongly) Congress didn't and doesn't have the power to pass either, they sure chickened out when push came to the shove destruction of their blather and a massive public rejection of their case.

Hiya Steve! Long thread, eh?
I doubt that your solution would work. We now live in the post-yuppie era. People no longer give a damn, about their fellow man. They only care about themselves, and how much wealth they can accumulate. These are the people running things today. So people like myself can either ship out, or try and weather the storm.
The finest legal minds are supposed to be representing us @ SCOTUS. Instead, we get paid-for partisan politics and snide comments about broccoli. Swell.

Sorry PJ but I can't untangle that snarled syntax either. I never said the court was taking about the 14th amendment but discussing the legal doctrines at play here. The court need not mention the 14th amendment etc for they presume the lawyers before them went to law school, pass a bar exam and don't need lessons in rudimentary law. and FYI I have practice law for over 20 years and, assure you, I do know what I'm talking about.
Joseph: You totally miss my point. Completely. I have a transcript for day one. It is 92 pages. As to what the court argued you will have to cite page:line of the transcript.

The court does not talk about auto insurance. The discussion was the "must buy" requirement. Kate very sensibly argued that if a state can mandate auto insurance or a penalty why can’t Congress do the same for health care? What in the Constitution reserves that legislative authority to the states exclusively? It’s one of the most astute questions I’ve heard yet. But not one know-it all has given her a substantive answer.

I was merely responding to Steve’s dismissive analogy in that regard “Kate and MarkHenry, auto insurance laws are state laws, not federal.” It’s a perfunctory dismissal the argument via a distinction with no explained difference. I merely pointed out this was not a refutation of Kates argument which no one has taken the time to refute. It’s a central issue. Merely dismissing it as state v. federal begs her very astute question and it’s no answer.

The issue is LEGISLATIVE AUTHORITY to make one buy a product. Any legislature. If the state can do so to regulate intra-state commerce why can’t Congress do it to regulate inter-state commerce. Kate understands perfectly. The answer does not lie in an irrelevant snark from another about the number of pages. She seeks a substantive answer.

Specifically, substantively not some airy their. What law? Specifically. She is asking the most important question. But everyone has begged it.

What, in the Constitution permits a state to mandate auto insurance but prevents Congress from, mandating health care. Merely saying one is state and the other is fed no answer at all.

I am not saying I know the answer to the question (though I proffered a few possibilities) it’s a very erudite issue. I’m just saying that no one else here does either.

Citizen demeans, “Kate, do you really not understand what the difference is between this law and laws against uninsured drivers?” No citizen. It’s her question. Since you know so much why not give her a substantive answer. She asks the most relevant question of anybody hear and not one has answered and that goes to the heart of the debate.

The question here is: Can the government make you buy...? Can the government make you buy? Can the government make you buy? The answer is OBVIOUSLY A RESOUNDING YES because state governments to so with auto insurance. Nothing prevents the Feds from regulating in this area if it wants and ergo preempt stat laws but it prefers to defer to the states. Here is a possible difference: the government only makes DRIVER’S buy auto insurance - not everybody. People can opt not to drive. But the question for certain classes of people the government CAN make you buy. If you fly a plane the fed (FCC) makes you but liability insurance. If you are a government contractor the same applies. There are many such examples.

We don’t know how the court will come down. My only point is that Kate asked the most relevant question. The answer is yes, the government can and does make you buy certain things. Both state and Fed. Well then why not everybody and under federal health insurance mandate. No one here has attempted to answer this threshold question. The court eventually will and I suspect that it’s the every body difference and no way to about it - like not being a driver.
There is a very practical aspect to health care and health insurance that is often not discussed.

If people are without health insurance and thus cannot afford medical treatment, and we decide not to give them care that they can't pay for, many of those people are going to end up not dead but disabled. We would see people who were blind because they could not afford a 30-minute cataract surgery. We would see people unable to walk because of diseased hip joints. We would see people disabled with heart problems because they could not afford bypass operations. We would see people disabled from strokes because they never went to the doctor and thus never found out they had high blood pressure. We would see people who were very sick from gall stones who couldn't afford cholecystectomy operations. We would see people disabled from chronic pain caused by all sorts of diseases. We would see people disabled from sports accidents.

In many cases, the disability would be total or would eventually become total. Once someone becomes disabled, now you have a REAL problem. If anyone thinks health care is expensive, try disability.

Once someone is disabled, we either let the person die in the street, or put him in some kind of care facility. So we say "we're not going to pay for Fred's $30,000 hip replacement," and they we end up paying $3,000 a month to maintain Fred in a nursing home for the rest of his natural life. Or we let Fred crawl around the street begging for money. And overall, there would be tens or hundreds of thousands of people in that situation -- in nursing homes, group homes, living in public housing supported by SSI disability payments, or whatever. No longer productive, unable to pay for medical care, and also unable to pay for any of their own living expenses, for the rest of their natural lives.
Mish - a very practical point. The whole business of making health insurance a business, and of all the people who 'don't want to pay for someone else' is that it's short-sighted and will bite 'em in the ass. In Canada, where everyone has government-paid (not government-run) health care, our outcomes are better, everyone's covered, AND THE COST PER CAPITA IS LESS! There's something screwed-up in the thinking of the Americans who are in charge of this mess.
Like, y'all gonna pay for the uninsured, like it or not, so you might as well do it NOW and upfront.
A number of hairs have been split on this post, but we are pikers compared to the "buy broccoli or die" clowns that sit on the Supreme Court. Rather than go for courtroom titters, which seems to be Scalia's only aim (his decision having been made long ago), the Court should provide a definitive answer to two simple questions:

(1) Is healthcare a right?

Answer: Yes. The Preamble implies and EMTALA insists that it is. If the Court wants to argue otherwise, it must strike down EMTALA or make itself look even more foolish.

If the Court holds that healthcare is a right of citizenship -- which to me is as at least as self-evident as the right to life, liberty and the pursuit of happiness, since absent healthcare one is often deprived of life, liberty and the opportunity to pursue happiness -- then surely the federal government not only has the right but the duty to do everything in its power to "promote the general welfare" with same vigor -- and coin of the realm -- as it does to "provide for the common defense".

(2) Can the Federal government force citizens to buy products?

Answer: Yes. If the states can do so, surely the federal govt is entitled to do so. This argument is, or certainly ought to be, settled law. To argue that the federal government is inferior to the states is to revert to the roundly rejected Articles of Confederation.

Why was that confederation of states roundly rejected by the Founders -- and with it the notion of "states rights" (at least as that heresy is propounded by its supporters then and now)? It was simply inoperable. And if it was inoperable with thirteen states, how pray tell, is it supposed to work with fifty?

If our own experience as a confederation isn't sufficient proof of the folly of loose confederations, one ought to look to the former USSR and the former Yugoslovia, each of which functioned as a putative country only so long as they were ruled by dictators.

But alas, these questions won't likely be answered by this Court. This Court's likely ruling in this case, and certainly its ruling in Citizens United, ought to give pause to every person contemplating throwing their vote away on a third-party candidate on the Left, or what's even more irresponsible, sitting this election out in a pout.

That leads to my final question: What would be the likely ruling in this case, as well as in the case of Citizens United, had Al Gore appointed two justices to the Court, rather than He Whose Name Can't Be Spoken by a Republican?
Francoise, My statement that auto insurance is administered by the states was in no way intended to be dismissive, nor was it in fact. Brevity, sometimes, is useful.

Tom, I agree with you wholeheartedly. Health care is a right If the Constitution can support a right to privacy, it can certainly support a right to health care. A significant portion of our health care expertise derives from our state-funded research and teaching university infrastructure. In addition, a federal medical funding infrastructure has introduced countless benefits into the field of health care. But your point, that it comes down to "general welfare," is primary.

The problem with too much of the analysis above is that it ignores the importance of legal precedents at the level of the federal judiciary and the Supreme Court. When Larry 3000 makes his assertions that SCOTUS has been off-base ever since 1937 he is merely informing us that he is a Constitution ideologue and fundamentalist who does not understand how precedent works in our system.
Allow me to quote you:
"That’s the danger of setting a precedent. If you impose a mandate on private health care that precedent, as a matter of law under the 14th amendment ‘equal protection’ clause, opens the legal door for all the other options the justices expressed concern about."

The 14th, again, doesn't apply the way you say it does. In fact, it's not a consideration. At all. Zip. Zero. Nada. Null. Irrelevant.

This is the point of my disputation, and I am correct. Your silly attempt to argue from "authority" ignores you were wrong, for reasons I stated. Glaring logical fallacies aren't substantial rebuttals. Ignorance of how the powers of Congress apply does nothing to enforce your error. Perhaps pushing wills through probate has led you to believe you're an authority on the Constitution.

Again, if you had a factual rebuttal, I assume you would have used it. The 14th doesn't apply to powers Congress already has, and the ACA is a reflection of those powers, which do not in any way rely upon the 14th, nor does the 14th add a consideration on what other acts may be legislated into law.

Your responses are just whiny attempts to cast the aura of your mere presence into a valid point. Sorry, Fran, you. do. not. know. what. you're. talking. about.

Note that you and I have joined in the same cause here. I say you are wrong, and you're proving that by the absence of any constitutional example or any example drawn from jurisprudence.

I appreciate your assistance, but you needn't be so crabby to your partner-in-proof. Instead of responding to this and given you have established a pattern, I'll just figure you would make yet another off-point and fact-absent defense of your error. That will save time and pixels.

Besides, I wouldn't want to take any time away that you would spend chasing ambulances.
JP. Thanks but I will decline conversations about constitutional law with people who hold themselves out as experts but reveal they don't know squat. Merely issuing dicta “it’s not a 14 th amendment issue” without refuting the substantive argument with substantive rebuttal that to even demonstrate you understand the issue presented is just plain ignorant.

The issue as I presented it and *as the Court discussed it* is a 14th amendment equal protection issue in this context. That is EXACTLY what the justices questions were targeted towards. Their ENTIRE line of questioning was directed at that legal consequence. If the fed mandates the public be forced to buy one product (health insurance) what's to prevent an industry that markets another (broccoli was the delightful snark of one justice) from lobbying Congress (which the big business essentially owns) to enact a law that requires citizens to buy their product too as long as they can convince Congress of the strong public policy health and commerce reasons? That’s the question the Court posed. That is an equal protection 14th amendment question.

If the Court permits Congress to do it in one case, that sets precedent and provides other industry lobby a rock solid 14th amendment equal protection argument. “On what rational basis can you single out one class of product (health insurance) and treat it differently (‘disparate treatment’) to the exclusion of all others. That is a classic 14th amendment equal protection question PJ AS A MATTER OF LAW (not a matter of my OPINION). The justices presume they are not talking to high school sophomores or arm-chair pundits to whom they must explain the rudimentary substance underlying their question. This is the classic Socratic dialectic of all legal debate in oral arguments and the court presumes the lawyers before it are not dunderheads who don’t get the drift of the rudimentary law their questions addresses. In others words that don’t have to spell-out what they presumes these lawyers already know.

Aside from that I prefer to have legal discussions with people whose opinions demonstrate that come to the debate equipped with a rudimentary substantive legal education or who are interested in learning something as opposed to know-nothing charlatans too full of themselves to learn anything from anyone. Have good day
Thanks Steve. Unfortunately, as here, brevity begged the question and dismissed the most relevant legal issue. Indeed Kate's very astute question is the heart of the legal debate and has been given short shrift. That people dodge or ridicule it only demonstrates they come to the debate not very well equipped with the rudimentary legal foundation.

Your own post demonstrated a wisdom to not pontificate on matters of which you have no expertise but rather addresses other issues you seem perfectly competent to discuss– public policy and the shift in the court. An issue, that I think few have addressed. In commentary.

But the court here is not interested in your policy arguments - that’s the legislature’s job to which they would prefer to defer. Obviously Congress agrees with you. But that is not the Court’s domain. That is off limits for the Court. It’s not here to second guess the wisdom of a law but only to pass on it’s constitutional muster. That’s respect for separation of powers.

However your comment on Scalia re: broccoli misses the point of his question which I have explained elsewhere here. That you miss what was obvious to the lawyers there is certainly not your fault. But the Court presums the lawyers get the drift of the rudimentary question which has been batted back and forth ad nauseam in the briefs that no one here has read.

In any such oral argument we must understand we are coming in at the end of a long conversation we have not taken the trouble to read. Rather than hash it all out again Justice Scalia (as all good lawyers do) was able to reduce all that past erudite legal discussion into a nutshell. To anyone not privy to the substantive debate that got all these lawyers together for this final argument that might well seem reductio ad absurdum. But to those on the bench and at bar it made perfect sense and they all understood perfectly well what he was driving at. No need for him to spell it out. He is not here to educate us but the grill them.

Just know he is making direct (though perhaps cryptic to a laymen) reference to a classic equal protection 14th amendment question. This is the classic Socratic dialectic every law student is familiar with. It’s the way law is traditionally taught. The questioner presumes the class has done its homework, read the case law, and comprehends the substantive implications of the question. The understandable failure to grasp all this is why courts are reluctant to have oral arguments broadcast to people sure to pontificate on a final argument while not sufficiently briefed on the law - not having done all the homework.

Though I dislike him Scalia’s nutshell broccoli summation was genius and, I assure you, all the lawyers at bar knew EXACTLY what he was driving at even though it appeared absurd to everyone else. This is the talent of impressive judicial temperament. Every lawyer there knew what he was driving home. Don’t expect journalists to even try to explain all this to you.

Broccoli: The essence of all equal protection discussion is: on what rational basis do you treat this class of persons or things different than that class? How is that constitutionally permissible? It really is that simple.

Keep in mind that is a very different question from whether or not a legislature has the authority to MAKE this law but only addresses its constitutional muster on the equal protection question. Two very different issues. I hope that helps.

Finally its Francoise and in Frank and not Fran as in Francine. :-)
If you want to be considered a Frank rather than a Fran, you ought to change your name. You must not know much about French; when you add the 'e' you get the feminine form. Voltaire was Francois-Marie Arouet de Voltaire, not Francoise!
I continue to hear arguments here about how many angels can dance on the head of the pin. What ought to be clear from the rhetorical question I posed -- "What would be the likely ruling in this case, as well as in Citizens United, had Al Gore appointed two justices to the Court, rather than He Whose Name Can't Be Spoken by a Republican?" -- is that the legal justifications thrown-up by the Court in support of its decision will be window-dressing for the political and ideological considerations that will be the real reason for the Justice's decision for or against the ACA.

To pretend, as legal scholars are wont to do, that the decision will be based purely on the law or precedent is either delusion or hogwash. The judges will make up their minds for political and ideological reasons, and then cite the law to suit their prejudices.

Meanwhile, millions of Americans will be left to dangle in the wind about healthcare -- a travesty that is not the case in ANY other industrialized western nation, not to mention a few third-world countries.
As someone who speaks French, I can say the following:

Françoise is used for women and François is used for men. Furthermore, note how the letter "c" should be used in both names. Jeff J. is right in his assessment.
The Court did not in any way approach the 14th amendment. The question was necessary and proper, the tax and spending clause and the commerce clause as to whether you can coerce somebody into commerce for the purpose of regulating them. You say the 14th means other industries and I guess people can demand the government mandates purchases from them as well. That is simply stupid. You pulled that one outta your wazoo. Nice one...uh...counselor....

However, I would like to retain your services because I want Congress to pass a law mandating the government purchase items and services from my company as well. No doubt with the certainty of your 14th amendment challenge being powerful, Congress will rapidly pass that legislation and start writing me checks. You are so sure you will take this on a contingency basis. I'll cut you in for 10% of all proceeds!

If you did want to file a far less absurd lawsuit, you could make a claim, perhaps, that the ACA isn't applied equally. You want an exemption from the law because the Amish have one, for example. That would be a real 14th case. The 14th usually applies to people, but...

Under your interpretation--
"All classes of products must have equal treatment before the law."

You might decide to represent a box of Brillo. No doubt the box of Brillo feels it has been unfairly kept from the mandated purchase law and soap-infused steel wool has been denied equal protection. When the boxes of Brillo, huddled on store shelves and trapped in under sink darkness in kitchens across the land cry out: Who will speak for us?...
...The answer will come back, loudly and clearly: Why, indeed, it's Francoise Arouete, defender of consumer products and inanimate objects!

Your 14th amendment argument is a absurd fraud, from aardvark to zygote, Fran. This is why you can't defend it. You can search the transcripts of the 3 day oral arguments before the Court. The 14th amendment is mentioned exactly zero times. This is because real lawyers and fairly real Justices were debating the issue. They know Congress' power to legislate on the spending clause, the commerce clause and the sweeping clause aren't in any way compelled by the 14th. They also know the 14th would not lead to ANY legal challenges by any industry demanding their products be mandated.

Oops! Scratch that. My bad. Certainly Francoise Arouete will launch that great constitutional battle! The argument won't be brilliant, but it will be Brillo, and while his constitutional case won't shine, his stainless steel briefcase will.

I can't wait until next week, Fran. I'm figuring by then you'll be an astronaut.

It has a search feature. Plug in the 14th amend and equal protection and you can see how it works.

When you get: Your search did not match any documents.

You'll know it's working.
Tom: Okay already! One might argue that to even ask the question is to answer it.

But you are very mistaken if you presume and independent judiciary can’t be just that. History, if you care to bother reading it, pretty well refutes it. Indeed, Eisenhower always said the Republican Earl Warren was “the worst dammed mistake I ever made.”

The majority of justices in Brown v. Board were conservative Republican appointees. The majority of justices in Lawrence v. Texas were conservative Republican appointees. The majority of justices in Roemer v. Evans were conservative republican appointees. The judge who ruled in the California Prop 8 case was a Reagan appointee. And a significant number of the state supreme court justices who upheld the Right to Marry or struck down laws banning it were, likewise, Republican appointees.

I could go on for pages giving examples of courts packed with Republicans that disprove your cynical theory and that delivered liberal or even progressive decisions one after another. But I guess it’s to much to ask that you provide some basis in fact to refute the ‘delusional hogwash of legal scholars’ so why bother.

But if you actually believe your cynical view and dislike this Court so much then you’d better work your ass off to make sure Obama gets a second term so he can make at least one more appointment to tip the balance and possibly strike down Citizens United because a constructional amendment (for anyone who knows that history) is about as realistic as building a snowman in Hell.

But I’d agree, the Court is where any president leaves his most lasting legal legacy and if you think this Court is over the edge then TREMBLE TO FEAR what will happen to it if disgruntled liberals and progressives hand the election to Romney. Wise up before taking to tainted bait with a hook sticking out. I’d wager money that a good portion of the so-called disgruntled anti-Obama liberals and progressives are nothing more than right wing propaganda shills funded by the Koch brothers and posing in liberal/progressive drag. Sheep are for fleecing.

Aside from that, since you are so well informed, please name “a few third-world countries” that have universal health care. This might lend at least an appearance of credibility to what otherwise might be fairly classified as delusional hogwash.
PJ: this is probably hopeless but I'll try again. There are two issues floating around here and if just two issues get you so abysmally confused then I can't to much about that. Apples and Oranges (or broccoli) (1) Does Congress have the legislative power to enact this law or is that reserved exclusively to the states and not being 'enumerated' (a term of legal art) in the Constitution and (2) IF SO then how can it pass muster on 14th amendment grounds. Broccoli!
PJ, suffering the malady common to most trolls you obviously didn’t even read what you respond to; but I understand this is too much to ask.

I have no interest in slogging through your haystack looking for non-existent needles. Once again, it does not matter one hoot if the court never mentioned the 14th amendment or equal protection in oral arguments - this is all covered in the briefs of which there are dozens. The court presumes the lawyers at bar are not nincompoop ignoramus Internet trolls but that they comprehend and equal projection question when it’s handed to them. Why health care and not broccoli IS an equal protection question those with even a thimble fill of legal knowledge should be able to comprehend if they desire any credibility. Justice Scalia is not going to sit there and say “Hey moron here’s an equal protection question.....” He presumes any seconds year law student would recognize and equal protection issue without spoon fed.

Aside from that I have no interest in debating law with charlatans who are not teachable because they think they already know everything. So I leave you to drown in your own sea red-herrings.
The 14th doesn't matter. To put another screw to it, what would make a mandate purchase different from a entirely tax-based purchase in that regard? Answer: nothing. So, where are the 14th challenges from companies demanding the gov buy their products? After all, they're spending people's mandated tax contributions with Lockheed Martin.

Further, it is an act of Congress. Another absurdity is a Court challenge based on the 14th that would force Congress to pass another purchase mandate law. Give me a minute and I'll think of a way to ridicule that thought.

The 14th has nothing to do with it. You were wrong, you remain wrong and you have illuminated this well beyond a typical error by repeatedly trying to insist you're right and, in a bold-faced violation of the immutable laws of nature--that I am wrong!

Broccoli, asparagus, Fruit Loops, used tires, face cream, board games, trees, textured vegetable protein, baby strollers, etc, etc, etc. Doesn't matter. You're wrong.

Unless you have something to prove your point, which you'll find buried between Sasquatch and Jimmy Hoffa, there's nothing more to add.
Kanuc et al. I am not French but American. It's a typo I am stuck with because Open Salon admin can not correct that once it's imbedded at inception. But one might at least hope that before dissecting French tenses those with an I.Q. above 85 can look at a photo to get a clue. Sorry. I know. Too much to ask.
PJ. Spoken like the 24 karat ignoramus too many of is are too familiar But who could expect less? Google around and perhaps you can ferret out Jared Loughner’s email address to become pen pals for you share some of the same obstinate anti-social tendencies. Now off to bed with you little one and don’t forget that bottle of whatever poison it is you suck on.
Well, you added even more. Amazing.

No, the 14th was not an influence, not a question, not sub rosa, not between the lines, wasn't a consideration, and you're a fool to keep trying to find ways to say it is, was or will be. The 14th would not, under any circumstance, at any time, in any way, compel Congress or the Court or fairies or bogiemen to mandate purchases of other products. Your most recent response is just you confusing "proper" with "equal protection." I think, but at this point it's hard to tell what drives your delusion.

Next time just suck it up and either ignore correction or admit your screwed up. As a dog returns to its vomit, so does a fool to his mistakes. I hope, for your sake, it tastes better the second time around, but it's never going to become mom's chicken noodle soup.

At this point it's safe to say you're an idiot.

Your problem is I am not.
If anyone else is as confused as Fran, though that's unlikely...

The "broccoli" thing is about the Court affirming the mandate power for various stated reasons, thus ALLOWING, NOT COMPELLING Congress or anyone else to mandate other purchases. It has absolute zero minus absolute zero to do with the 14th amendment.

The issue at play is the fact that your pen name didn’t match your avatar. Thus, before trying to ridicule other people, perhaps you should have reviewed your pen name one more time before clicking “return.” This way, people won’t be questioning whether or not the writer has an IQ below 85. And it’s spelled Kanuk. I know it’s too much to ask.
This is an easy google: "Patient Protection and Affordable Care Act" & "equal protection"

That query will result page after page of hits and directly referencing many of the briefs in this case that argue equal protection concerns under both the Fourteenth Amendment (as it applied to states) and the Fifth Amendment (applicable to the fed).

Narrow the query to: "Patient Protection and Affordable Care Act" & "fourteenth amendment" and you get many more pages also linking directly to the brief in this case.

That ‘equal protection’ is an issue in this case for many reasons is beyond dispute. But that begs the question. When Scalia asks legal counsel why how the government can, under the commerce clause, mandate health care and not broccoli that IS an equal protection question because the essence of all equal protection questions is: on what rational basis you can treat one class of persons or things differently than others.

The first thing any law student learns on Con. Law I. is how to spot an equal protection issue. Easy: on the facts. Treating one class differently and giving preference of others is the ESSENCE of equal protection. The fact of disparate treatment is the trigger. Scalia doesn’t need to point that out. He presumes he’s talking to someone who went to law school. The law can and does grant such preferences the question is whether it’s permissible.

The discussion was not on day 1 btw but day 2. In all, the word "broccoli" was mentioned nine times in a variety of instances during Day 2 of the oral arguments, according to the official transcript. Justice Antonin Scalia was the first to question U.S. Solicitor General and Obama administration lawyer Donald Verrilli. His theory: “All citizens are in the market for food. Why couldn't the government make its citizens purchase, say, broccoli?”

To pass muster you have to make an acceptable distinction with a difference. J. Roberts did not like the distinctions offered. Judges don’t sit on the bench and say to the people in the audience, “Oh, by the way everybody, this is a conversation about equal protection.” They presume every lawyer know this from law school. Yes, the topic is the commerce clause but the question is still one of equal protection. How can the Commerce Clause justify this and not that. That IS an equal protection argument by definition (opinions have nothing to do with it) and they don’t have to taboo in on their foreheads.

The implication was clear (at least to legal minds): if the Commerce Clause can be justified to make one by this class of product how can you deny them at same mandate to buy other products the governments thinks you should buy for sound policy reasons?
Yes, there was a time when the Supremes were actually jurists, and when Republican appointees surprised the President who appointed them. But, alas, that was back when the Republican Party was run by grown-ups. That all changed for good in 1980, although the seeds of that party's destruction were sown in the '60's with its embrace of the Southern Strategy, which was a reaction to Brown v Board and the civil rights legislation under Johnson. In the interim, the GOP has gradually become the new AIP (Americn Independent Party).

Even comparatively moderate George H W Bush crawled into the sewer of racist politics to get elected, and his appointment of Clarass Thomas as a replacement for Thurgood Marshall was as despicable an appointment as I've seen in my lifetime. He might as well have said, "You want a nigger, I'll give you a nigger."

Once upon a time, I, too, had great respect for the Court, even when I disagreed with its decisions. But, alas, the Court has lost all credibility with Bush v Gore and Citizens United. And if it rules against the ACA, it will not be on the merits, but on the politics.
You're still wrong. You're wrong and you don't know crap from Shinola about law, and if you are a lawyer, you are the most unstudied, incompetent lawyer to ever bribe his way past a bar exam.

There are scant "Googles" combining the ACA and 14th amendment "equal protection." One is an analysis from the Alaska AG. It is a legal opinion, not a S Court filing. This is what it says about Equal Protection--

""Equal Protection Claims
Some have suggested that requiring individuals to buy health insurance violates the equal protection clause because Congress has exempted certain categories of persons, such as those with incomes under the poverty line. Others have indicated that it violates equal protection to exempt individuals in certain trades or who are members of a union from additional taxation.

These arguments need not detain us long. “Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes.” “Congressional selection of particular entities or persons for entitlement to this sort of largesse is obviously a matter of policy and discretion not open to judicial review.” Indeed, with “taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Thus, to withstand an equal protection challenge to a tax classification, the federal government merely needs to show that “any reasonably conceivable state of facts … could provide a rational basis for the classification.” This test is so low that Congress’ classification “may be based on rational speculation unsupported by evidence or empirical data.”
Moreover, “[t]he presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.”
Based on the above, the Act will very likely withstand an equal protection challenge. First, there is no evidence that the Act’s classifications are a “hostile and oppressive discrimination against particular person or classes.” Second, while some may see certain exemptions or deductions as unfair, tax exemptions and deductions are “a matter of grace Congress can, of course, disallow . . . as it chooses.""
Gee, Fran, first, no suggestion that "Equal Protection" invites other businesses to demand their products be mandated. Then, the AG reaches the conclusion the 14th cannot be successfully applied to the ACA. Of course, he's a REAL lawyer. The 14th applies to the equal protection of People, not products. That I have to point that out is a bit amazing, but you're plainly not normal. Delusions of grandeur and lies. tsk, tsk!

Up next, another challenge. This was an actual case, but dismissed.

""A Michigan federal judge on Oct. 7 dismissed a constitutional challenge to the health insurance mandate/federal income tax penalty of the Health Care Reform Act, saying Congress has a right to try to eliminate cost-shifting by uninsured Americans (Thomas More Law Center, et al. v. Barack Hussein Obama, et al., No. 10-11156, E.D. Mich., S. Div.).

The plaintiffs allege violations of states' rights under the 10th Amendment to the Constitution, the free exercise clause and the Fifth Amendment's equal protection and due process clauses. They moved for a preliminary injunction on the commerce clause and tax powers claims.""

And it got kicked from the court.
Here's another--
""The comprehensive pro se lawsuit by two New Jersey activists against the healthcare-reform bill alleges, as one of its fifteen counts, that certain elements of the bill constitute racial discrimination, hence a "den[ial] [of] the equal protection of the laws.

In addition, Nicholas E. Purpura and Donald R. Laster Jr, the originating plaintiffs in Purpura et al. v. Sebelius et al., say that the bill labeled "HR 3590" contains provisions that violate Title VII of the Civil Rights Act of 1964, the title dealing with discrimination in employment.""

Again, People, not products. This also never saw the S.Court, for what should be obvious reasons. Copy, paste and Google. It's irrelevant anyway.

Legal definition 14th amendment, first clause--

Section 1 of the amendment has been the centerpiece of most of this litigation. It makes "All persons born or naturalized in the United States"citizens of the United States and citizens of the state in which they reside. This section also prohibits state governments from denying persons within their jurisdiction the privileges or immunities of U.S. citizenship, and guarantees to every such person due process and equal protection of the laws. The Supreme Court has ruled that any state law that abridges Freedom of Speech, freedom of religion, the right to trial by jury, the Right to Counsel, the right against Self-Incrimination, the right against unreasonable searches and seizures, or the right against cruel and unusual punishments will be invalidated under section 1 of the Fourteenth Amendment. This holding is called the Incorporation Doctrine.""

Golly gee, Fran, they forgot equal protection of consumer products. Those bastards! They killed Kenny!

The Alaska AG's analysis is the best of the Googled documents. It shows that the 14th doesn't apply and that it certainly applies to people and discrimination and unequal treatment, not products, not businesses demanding equal purchase mandates, and not a complete fabrication as is your inane, prattling, fact-absent, legal knowledge-devoid steaming pile of wazoo-deposited crap.

You're a fraud, dude. Simple as that. I'm calling you a faker, a phony, a mini-mind (lower than 85 IQ) charlatan. A lawyer wannabe who lies out his arse, which is also the source of his legal ideas. OR--the World's Most Incompetent Lawyer. Take your pick, as one is no worse than the other.

I noticed you have fooled a few people around here. Shame on them for not examining your claims, but your incompetence sticks out like a sore thumb. That you have a habit of insulting others, delivered with condescension, just makes it funnier.

And for my money, your writing is garbled gobbledegook. You run over the possums of your premises, back up, run over them again and again. Half-wit circumlocution that sounds like a wannabe lawyer who hasn't even bothered to watch old Perry Mason reruns.

Now go forth and launch that Brillo lawsuit. Maybe you can convince a box of soapy steel wool that you have anything resembling a logical or legal mind. Your above attempt at a recovery is just an embellishment of your ignorant anal ysis.

You've been outted.
More fun--

Definition from Nolo’s Plain-English Law Dictionary

The right, guaranteed by the Fourteenth Amendment to the U.S. Constitution, to be treated the same, legally, as others in the same situation. If a law discriminates between one group of people and another, the government must have a rational basis for doing so. A law that discriminates on the basis of a supect classification -- that is, it makes a distinction based on race, gender, or another trait that has historically resulted in discriminatory treatment -- is constitutional only if there is a very compelling reason for the distinction.
Gee, Fran, no mention of your:
"All classes of products must have equal treatment before the law. It’s the LAW."

John Q. Brillo has no standing. Mr. Brillo's demand to be purchased by mandate is not justiciable. Mr. Brillo's owner or market representative has no claim under the 14th.

Equal protection under the law for Congress. There's a new one. Speaking of new one, how does it feel getting torn a new one?
It's not at all about Equal Protection, it's about equal power to do mandate the purchase of a product. That may be curbed by a definition of on what it can be applied, or knocked-down entirely. We'll see.
It's about the power to legislate mandates, at least it is to both legal and logical minds. Spending Clause, Commerce Clause, Necessary and Proper, but not the 14th.
You should "taboo" that on your eyelids.
I was wondering how you were going to end this...

"I just don't know" is perfect, and troubling. Another great one Steve~
I didn't like your idea of let the uninsured fend for themselves, including "no hospital, buckwheat," but it does have a logic. I would like the compassion side to win on health care, as it has in Europe. Maybe we need a WWI and WWII on our soil to knock out our self-righteous selfishness.
That some trolls admit to getting their Con Law education from a NOLO book just goes to prove that education is to bloggers is as TV is to crack.

But if Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them? see Professor Einer Elhauge of Harvard Law School in the New Republic. Professor Einer Elhauge points to three mandate equivalents passed into law by the early Congresses. These bills were signed into law by none other than Presidents George Washington and John Adams. As Founders go they are pretty senior in the hierarchy and can be relied on a reasonable idea what the Founders intended to be the scope of congressional and governmental power. Indeed, the individual mandates passed by the founders are directly applicable that the claim that original intent precludes affirming the heath care act.

First, in 1790, a Congress including 20 Founders passed a law requiring that ship owners buy medical insurance for their seamen. WASHINGTON SIGNED IT INTO LAW.

Second, in 1792, another law SIGNED BY WASHINGTON required that all able-bodied men buy a firearm. (So much for the argument that Congress can't force us to participate in commerce.)

Third, in 1798, a Congress with FIVE FRAMERS passed a law requiring that all seamen buy hospital insurance for themselves. ADAMS signed that legislation.