Free Markets, Free People

The key question

Premise: The federal state, via the Constitution, claims the ability to require via mandate (and penalties if the mandate isn’t obeyed) that individuals buy a specific product from private companies.  That’s the premise at work in this new health care refom law.

Question: If that premise is upheld, what can’t the federal state require an individual to obtain/purchase if it so commands by law?

Discussion:  I’m leaving it up to you to carry on this discussion.  I’m of the opinion that the ability of the federal government to mandate such behavior is unconstitutional and will eventually be found to be so.  But if it isn’t, then I’ll have to back off my previous statement that this law isn’t a “fundamental change in the relationship between the federal state and the individual” and instead simply an expansion of what has gone on previously.  If upheld, it would be a fundamental change – and not one for the better.

Your thoughts?



Tweet about this on TwitterShare on FacebookShare on Google+Share on TumblrShare on StumbleUponShare on RedditPin on PinterestEmail this to someone

38 Responses to The key question

  • Question: If that premise is upheld, what can’t the federal state require an individual to obtain/purchase if it so commands by law?

    Answer:  Whatever is politically unfeasable at the time. Otherwise it’s indeed open season.  If they ram cap and trade through, why can’t they do something similar, such as mandating that all Americans must buy x amount of carbon offsets based on their footprint or face a penalty?

  • What ever happened to “choice” (in health care) ?  .. or is that just for abortions ?

  • I believe this law is blatantly unconstitutional, no if’s, and’s or but’s.  Can anybody point to where in the Constitution is gives the power to the government to force people to buy something?  If this is approved by the Supreme Court, the illusion of a representative republic under the rule of law based on a firm Constitution is dead and they are free to mandate ANYTHING they want on us.

    • I have this weird feeling that ultimately Roe v Wade will be used to declare this unconstitutional.

  • There are two matters here, not one. This is indeed a fundamental change in the relationship between the national socialist state and the individual whether it is deemed constitutional or not.

    On the constitutional question itself the real problem is that the jurisprudence of constitutional law, particularly down this alleyway, has become a mess of bad wires. It’s been driven that way for a century.

    The original limited government enumerated powers intent of the Constitution was mislaid long ago. And the current legislation is a new threshold of an all-powerful government.

    • The above is an astute comment.  I say that having studied Constitutional Law under Professor (now Justice) Kennedy.  The difficulty with discussing the Constitution is that it wears several hats for us.  Its job that is easiest to understand is limiting our actions when tempers are hot.  For example, a law that would make being a Progressive a felony might pass right now, given the numbers and temper of those who would support it.  However, by the time the process of a Constitutional amendment allowing such a law to be enforced was complete, cooler heads would prevail and the amendment would fail to be ratified.  In the meantime, Progressives could maintain their employment, go about their business and feel secure that they are protected from the temporarily upset majority by the existing Constitution.  The example could as easily be about Conservatives, but even if every Progressive voted for it there are simply not enough votes to create the problem.
      However, there were enough votes supported by Progressives (including votes that were bought and paid for) to pass this mandate, which (IMHO) is clearly over the line drawn by the original Constitution.  Which brings up another hat.  Under the Constitution, the SCOTUS can make up (read “interpret existing law”) reasons to enforce this law to allow it to function, even though it is blatantly unconstitutional,  at least until cooler heads decide that it must be done away with.  Whether or not this characteristic of the Constitution is a good thing has long been debated.  Suffice to say that this loose “interpretation” process is still with us.
      The challenge to the SCOTUS is to let this law stand without opening the barn door to many other, less attractive laws based on the same “principle”.  See “the penumbra” which supports abortion.  Few other laws have been allowed based on the “penumbra” principle.
      My point [at last!] is that discussion, especially discussion by lay persons who have not studied Constitutional Law is pretty much pointless.  Their interpretation of the Constitution is, and pretty much must be, filtered through their political beliefs and stating it as if  it were somehow separate or capable of being separate is nonsense.  And, yes, most of the discussion of those who have studied it is nonsense too, for the same reason.  Sigh.

  • The current SC is loaded with Euro-Statists, imho, form the Kelo decisions.  By Euro-Statists I  mean State & Big Money Private Interests scratch each others backs.  Of course the Private Interests that choose not to play, cease to exist.
    So, I don’t see forcing you to buy health insurance is inconsistent with that mindset.

    • As a side comment, I believe too much focus is placed on this aspect.  It is the biggest and clearest violation of the Constitution.  But if this part of the legislation is struck down, the travesty of the bill will survive.
      Most of us are on insurance and will likely continue to buy some kind of insurance even if we could opt out.  At least in the beginning.  The devastation to the availability and cost of health care will still occur though because of that.  And the government will still from funding from you somehow to pay the health care for those who, by someone’s measure, can’t afford it.
      Its an important issue.  But in this case, I believe its one of multiple means available to government to the same end.  At best we could  hope for a small detour on the current path.

  • I know that I am going to be butchered for saying this, but I believe that we have crossed the Rubicon when it comes to The Clown™. I think that as a whole, the American people are starting to write him off as Jimmy Carter, Jr. He can only solidify this rationale of thinking with his plan to push to get illegal aliens naturalized.
    Meanwhile, another Obama nominee [read: crook, thief, scumbag] has withdrawn his nomination:

    • I’ll put that up there with your prediction that health care reform will definitely not pass.  I think your predictions, and view on all this, is shaped by what you want, not what is.

      • Well, Scott, Pot, Kettle, black.  But, you did get me laughing.

        • Except I’ve been right quite a bit.   So here is my prediction, shove it in my face if I’m wrong: The Democrats lose seats this year, 20-25 in the House, 5 in the Senate, but retain control.  Obama is re-elected in 2012 and the Democrats gain seats.  By 2014 health care is no longer a salient issue, and will have become simply part of who we are (and as an advanced industrialized state, something we actually can’t avoid).   But I do see a very good chance for a Republican to win in 2016, and alter, though not repeal, the health care system.

      • I think your predictions, and view on all this, is shaped by what you want, not what is.

        >>> You mean like your views on global warming and the US decline?

        • Well, US decline seems to be predicted quite frequently by people around here lately.   You all blame Obama, but it’s been building for decades.

          • You’re a dumbsh*t Scott. (That’s not ad hominem if it’s fact, btw).  People around here have been blaming every statist who’s come down the pike – Republican, Democrat, Progressive, whatever – for a long, long time.

  •  Even more ominous is, if the government can require you to purchase something then it follows that the government can also determine “who can and who can’t purchase something”. Now where have I heard that before?  It sounds almost biblical to me.  Fight back America, before it’s too late.

  • Martin and the others are correct; it is unconstitutional, but we have lots of bad court decisions that make for an argument to the contrary.

    Lots of things are unconstitutional, including social security, medicare, etc.

    • Luckily you aren’t the one who gets to determine what is constitutional or not.  The Constitution gives that power to the Supreme Court.    Therefore, by definition, what the Supreme Court rules is constitutional.

      • The Constitution gives that power to the Supreme Court.

        Actually, there’s nothing in the Constitution that grants any such power to any entity.  The Supreme Court gave itself that power in Marbury v. Madison, but it does not exist in the Constitution.
        Article 3, Section 1 reads in its entirety:

        The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

        For a political science professor, your knowledge of the Constitution is shamefully inadequate.

        • You beat me to it. This is high school stuff. Ph.D definitely means ‘piled higher and deeper’.

          • I notice he’s abandoned this thread at set up camp somewhere else.  I figured he wouldn’t admit to his error, he never does.

        • Scott takes only a marginal interest in his own field.

        • But it has been interpreted as giving the Supreme Court that power.  Otherwise, why would it’s rulings be so important?   Your understanding of constitutional law is lacking.

          • You said it was in the Constitution.  If it is in the Constitution, surely you can cite the Article and Section where it appears.
            Go ahead and find it, we’ll wait.  And if you can’t find it, have the grace to admit you were wrong.

      • Well that has become the problem, Scott. The Supreme Court is lost in its own jurisprudential wires and that obscures its line of sight into the first principles of the Constitution. Its bad habits have been compounded by bad legislation, which in turn gets compounded by bad faith.

        “A Republic, if you can keep it.”

        It might arguably still be a Republic, but certainly not the one we were charged by Franklin to keep.

        This thing is a crushing gigantism. Slovenly and dictatorial with its new crown of “universal” health care. And all the mad preachers and drivelling dons who once declared the Soviet Union a paradise, their ghostly heirs are out making excuses for this ugly piece of garbage just imposed on us all, against our will.

        • Martin, That last paragraph was poetic.   I agree with the sentiment as well, but it was also a visual pleasure to read. Thanks.
          Oh yeah, Scott Erb is an avatar created by a conservative satirist to stimulate debate on right leaning blogs.  He cannot actually exist.

  • If that premise is upheld, what can’t the federal state require an individual to obtain/purchase if it so commands by law?
    Slaves. I suspect that the Supremes will at least uphold the 13th amendment.

  • I suggest that the basic issue at question is not the constitutionality of the health care law, but rather one concerning the relationship that the American people have with the federal government.  I believe that the people want and indeed EXPECT Uncle Sugar to take care of them.  It seems to me that this is clear from decades of expanding nanny-state powers that the American people have accepted if not outright applauded.  Health care takeover is merely (much) more of the same.  In my opinion, had the dems not been so brazenly partisan, had they made an effort to get the GOP on board, this bill would have passed several months ago in many of its essentials with far less rancor and FAR less talk of repeal.  At the core, what people are angry about is not so much WHAT was done, but rather HOW it was done.  Let’s face it: Bush passed a whopping big entitlement (prescription drug benefit) with much fanfare, praise, and general public support.  The relatively few objections were mostly based on cost, not on constitutional issues.

    As for the Constitution itself, I suggest that it can be (and by many people IS) seen NOT as an iron-clad set of rules and enumerated powers, but rather as a flexible framework for a government of the people to do their collective bidding.  President Washington, in his innaugural address, state that the purpose of the government was to provide “for the security of [the peoples’] Union, and the advancement of their happiness”.  Can it thus be argued that the Constitution is or should be a barrier to anything that “advances our happiness”?

    O’ course, I’m a stodgy old American who believes that rules are meant to be followed, and that President Washington and his fellows at the Constitutional Convention absolutely meant for the Constitution to be a barrier to the people doing damned fool things like putting themselves massively in debt and completely under the thumb of a government that, at various times, we’ve ALL felt to be pushy, capricious, or downright tyrannical.  But I think that I’m in the minority, and the SCOTUS will no more shoot down ObamaCare than it did Social Security, unemployment insurance, or any of the other New Deal laws that remains on the books to serve as a leash around our necks and a drain on our national treasury.

    What people want, they usually get.  Whether they live to regret it is another matter.

    • I believe that the people want and indeed EXPECT Uncle Sugar to take care of them.
      I believe there are some people like that, but I rather suspect more people are of the “I know what’s best for everyone else and god damn it, they should be forced to do what I say.” In my family, my mother often comments on the people walking on our street who are unemployed males smoking cigs, talking on their cell phones, etc. to “without a job, how does he have money for cigarettes, how does he have money for smokes, etc.” This also leads to “restaurants should serve healthy food”,  that rich man should help out that poor man, etc. Its the controlling instinct many have (not just progressives.) I bet even the staunchest libertarian occasionally has one of these moments.
      I also think that these people have severely overestimated the power of the government to help a certain class of people. Many people who are eligible for medicaid, etc. don’t sign up for them. I wonder how many of the unemployed yahoos playing hoops and drinking beer down the street at 11:00 a.m. on a week day actually turn in a tax return to get their tax credits, or whatever. That said, food stamps seems to have done very well in delivering the goods. I guess no matter how lazy you are, food is a priority you can’t ignore.
      So, I would put the food stamp program connected to the insurance program to make sure we get maximum compliance. Dock them 750 bucks of food stamps unless they show proof of insurance.

      • Harun… I rather suspect more people are of the “I know what’s best for everyone else and god damn it, they should be forced to do what I say.”

        You’re right.

        Two natural constituencies for democrats: freeloaders and wannabe-despots.

  • Just like how the mortgage interest deduction is unconstitutional.  If I don’t have a mortgage, my tax is X, but if I have one and pay interest, my tax is X-Y.  And, since the mortgage interest deduction has been found unconstitutional, this one is too.

  • So does this mean you can be required to pimp out your daughter, and pay taxes on the transaction?

  • This is an interesting debate, and I honestly hope it is more than an academic debate, I would love to see SCOTUS rule on this. We know that Constitutional challenges to Medicare have failed, but there are differences, primarily the mandate to buy a product from private industry and the mandate is not dependent on recieving a paycheck.

    Clearly actual universal healthcare with a payroll tax to pay for it would be Constitutional, since it would essentially be Medicare extended to age zero, but that of this public/private mandate?

    I think in the end it will pass the Constitutional on the basis of Article 1, Section 8, the power to levy taxes. There is no restriction on Congress that taxes cannot be discriminatory and in fact, many taxes are discriminatory. You pay a different tax if your income is from investment than if it is from labor, same with mortgage holder vs non-mortgage holder, payroll employee vs dividend income, etc… In fact, virtually every tax is discriminatory. The tax on people having health insurance would be different than the tax on people not have health insurance, just another example of a discriminatory tax.

    That’s where I think this thing will come down, on the fed’s power to tax, and it will be upheld.

    Still, I would kind of like to see it struck down, since the fix would be an improvement, but ironically, the people that are bringing these lawsuits would see the fix as decidely opposite of their intentions.

  • Looking at the original question, it seems to me that if this passes without any substantial challenge, then there would be no legal recourse for people if the GOP took power in 2012 and passed (without a single democrat vote) a bill mandating compulsory gun ownership in the name of “public safety”, barring the supreme court giving a quite-frankly hypocritcal alternate interpretation of the commerce clause.
    But by all means, as long as it’s something people like (free health care for everyone!) then we’re just going to go along with it, aren’t we?
    Is that kind of what you were asking? I’m new.