CNN: Appeals court says key parts of health-care reform unconstitutional

[Popeman38]

http://www.cnn.com/2011/POLITICS/08/12/health.care.ruling/index.html?hpt=hp_t2

"The individual mandate exceeds Congress's enumerated commerce power and is unconstitutional," wrote Chief Judge Joel Dubina. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

This ruling conflicts with another federal appeals court in Cincinnati, which found the "individual mandate" to be lawful. That sets up an almost certain oral argument and final ruling on the matter from the Supreme Court in coming months.

With the ruling in Cincy, and this ruling in Atlanta, looks like we are definitely heading to the SC on this. And with the current make-up of the SC, I would expect a 5-4 decision ruling the individual mandate unconstitutional.

[Tulane Skins Fan]

You are probably right about the ultimate outcome. I do think that once this gets declared unconstitutional, there are going to be lawsuits to throw out Medicare and Social Security as Constitutional, and I can't see how they fail.

[Baculus]

You are probably right about the ultimate outcome. I do think that once this gets declared unconstitutional, there are going to be lawsuits to throw out Medicare and Social Security as Constitutional, and I can't see how they fail.

Medicare, SS, and the individual mandate are not the same thing (derived from taxes vs. mandated purchase), and those previous programs have long been upheld as constitutional.

If the mandate is thrown out, then that's what the Democrats get for using a Republican idea such as the mandate! But really, though, a single-payer reform would have been more preferable.

[RichmondRedskin88]

We just finished discussing this in my boss's office at my internship literally 2 seconds ago. Our customers are medicaid

[Tulane Skins Fan]

Medicare, SS, and the individual mandate are not the same thing, and those previous programs have long been upheld as constitutional.

I'm not saying I agree with it. I'm saying Medicare is basically health insurance for the elderly that we all have to pay for, and social security is basically retirement for the elderly that we all have to pay for. If the opinions are going to be based on its unconstitional because the commerce clause doesn't allow congress to force people to purchase anything, then those lawsuits are going to be coming fast and furious right after this one. and they'll have a good argument.

[Baculus]

I'm not saying I agree with it. I'm saying Medicare is basically health insurance for the elderly that we all have to pay for, and social security is basically retirement for the elderly that we all have to pay for. If the opinions are going to be based on its unconstitional because the commerce clause doesn't allow congress to force people to purchase anything, then those lawsuits are going to be coming fast and furious right after this one. and they'll have a good argument.

Well, taxes pay for many services and functions, and the power of government to levy such taxes (however unsavory) has long been recognized. Basically, they would have to sue for all taxes to be abolished, taking your point to the ultimate conclusion, and I doubt if that would happen. I think you're partially right, but I don't see the Supreme Court finding those programs to be unconstitutional, unless the conservatives veer hard right, which isn't impossible (though unlikely, IMO).

Eh, seeing how Michele Bachmann may become the GOP presidential candidate, upon reflection, maybe you're right. :-P

[twa]

Medicare, SS, and the individual mandate are not the same thing, and those previous programs have long been upheld as constitutional.

Yep...Dammit

you would think a lawyer would explain the clear differences

interesting on their reasoning on severability, I think that will be decided a bit differently

[Tulane Skins Fan]

I disagree, only because taxes pay for many services and functions. Basically, they would have to sue for all taxes to be abolished, taking your point to the ultimate conclusion, and I doubt if that would happen. I think you're partially right, but I don't see the Supreme Court finding those programs to be unconstitutional, unless the conservatives veer hard right, which isn't impossible (though unlikely, IMO).

Aren't we talking about a tax in this case? Buy health insurance or you get taxed. Right? Apparently, that is unconstitutional.

Well, at least according to this court. If the SC finds that, people are going to start opting out of payroll taxes claiming they don't want medicare when they get older or social security.

[Mickalino]

Yea, I don't see how you can practically rule Medicare and SS as unconstitutional, even based on the health care reform premise, because what happens to all the money people already put into it ? You can't deny future benefits to people who were forced to pay into, or invest in it, unless an exception is made like a grandfather clause.

[Popeman38]

Aren't we talking about a tax in this case? Buy health insurance or you get taxed. Right? Apparently, that is unconstitutional.

Well, at least according to this court. If the SC finds that, people are going to start opting out of payroll taxes claiming they don't want medicare when they get older or social security.

No, it wasn't a "tax". It was a fine, imposed for your breaking the law. The law stated that you had to pay out of pocket to purchase a service. I agree with the spirit of the law; the execution, however, seemed very clearly a violation of Congressional powers.

[Tulane Skins Fan]

Yep...Dammit

you would think a lawyer would explain the clear differences

interesting on their reasoning on severability, I think that will be decided a bit differently

It comes down to how the justices are getting to these decisions. If they are saying that the commerce clause does not allow government to tax people who don't have health insurance, then someone is going to file a lawsuit saying i shouldnt be taxed for medicare and social security. Its a matter of time. And depending on the wording of any SC decision, they may end up with a great case.

I'm not sure why the severability would go differently, except for one reason: if the issue is not severable, i.e. if parts are constituional and other parts are not, then the big businesses stand to lose a **** load of money and we all know the SC doesnt like that. However, in recent years Thomas has been willing to stick it to big business when issues of constituitonality are in front of him. We'll see.

Edit:

What's the difference between a "fine" and a "tax." Its really not much if you ask me.

[twa]

It's a fine until they need it to be a tax,before it must revert back to a fine.

I told ya they got too cute

add

no .....the power to tax is quite different than the power to fine

[Tulane Skins Fan]

It's a fine until they need it to be a tax,before it must revert back to a fine.

I told ya they got too cute

add

no .....the power to tax is quite different than the power to fine

How do you get ot that last part? The interestate commerce clause gives congress the power to "regulate" interstate commerce. Why does that allow them to tax but not fine?

[twa]

I'm not going to repeat the same old arguments

Talk to the courts

[Tulane Skins Fan]

I'm not going to repeat the same old arguments

Talk to the courts

I will. If this is unconstitutional because the interstate commerce clause doesn't allow the federal government to tax or fine someone who doesn't buy something, then I'm opting out of social security and medicare now.

[Kilmer17]

Im sure the current SCOUTS will carve with a fine blade in making sure that Obamacare gets repealled without also eviscerating SS and the Meds.

Though I wish they would do both.

[Wrong Direction]

How do you get ot that last part? The interestate commerce clause gives congress the power to "regulate" interstate commerce. Why does that allow them to tax but not fine?

You're missing the legal case here. They're allowed to tax and fine. The issue in dispute is whether they're allowed to compel someone to purchase a private product or face a fine.

Note, people aren't compelled to pay for Medicare or Social Security. If they get to 65 and don't want it, they don't have to join. SS isn't even applicable, because you don't pay to get it. For Medicare, you do pay to get it but you don't face a fine if you don't enroll.

Edit: http://www.reuters.com/article/2011/08/12/us-usa-healthcare-idUSTRE77B4J320110812

"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," a divided three-judge panel said.

[Tulane Skins Fan]

You're missing the legal case here. They're allowed to tax and fine. The issue in dispute is whether they're allowed to compel someone to purchase a private product or face a fine.

Note, people aren't compelled to pay for Medicare or Social Security. If they get to 65 and don't want it, they don't have to join. SS isn't even applicable, because you don't pay to get it. For Medicare, you do pay to get it but you don't face a fine if you don't enroll.

But you have to pay the tax/fine for Medicare and social security whether you want it or not.

Ultimately, no one is really reading what I'm saying. It depends how the SC rules, but if they are going to rule that the interstate commerce clause doesn't grant the power to tax/fine for health care, then someone is going to have a very good argument regarding Medicare and then SS.

I don't understand why you think people aren't compelled to pay for medicare and/or social security. If you are an American citizen, you are going to pay for it. You may not have to take its advantages after paying for it all your life, but you have to pay for it your whole life.

[Wrong Direction]

But you have to pay the tax/fine for Medicare and social security whether you want it or not.

Ultimately, no one is really reading what I'm saying. It depends how the SC rules, but if they are going to rule that the interstate commerce clause doesn't grant the power to tax/fine for health care, then someone is going to have a very good argument regarding Medicare and then SS.

I don't understand why you think people aren't compelled to pay for medicare and/or social security. If you are an American citizen, you are going to pay for it. You may not have to take its advantages after paying for it all your life, but you have to pay for it your whole life.

They only pay for those if they work. They don't pay for Medicare and Social Security if they don't work. It's written as a tax on income and justified by totally different legal precedent.

I'm not an attorney but I read a lengthy legal brief posted on this site by the DC bar many months ago. I can't explain all of the machinations, but I'm sure you're making assumptions about issues that are not open to legal interpretation unless our courts were inclined to overcome existing case law. The whole premise to the suit against this particular mandate is that it's an expansion of existing congressional authority, and thus has no applicable precedent.

[Tulane Skins Fan]

They only pay for those if they work. They don't pay for Medicare and Social Security if they don't work. It's written as a tax on income and justified by totally different legal precedent.

I'm not an attorney but I read a lengthy legal brief posted on this site by the DC bar many months ago. I can't explain all of the machinations, but I'm sure you're making assumptions about issues that are not open to legal interpretation unless our courts were inclined to overcome existing case law. The whole premise to the suit against this particular mandate is that it's an expansion of existing congressional authority, and thus has no applicable precedent.

I posted that DC Bar brief. (FWIW, it was not a "brief," but an article.) And its conclusion was that these are closer calls than initially thought. It also said the question of whether SS and Medicare are constitutional laws could be raised if the healthcare act is unconstitutional.

Neither SS nor Medicare have been challenged like this before.

[Baculus]

Im sure the current SCOUTS will carve with a fine blade in making sure that Obamacare gets repealled without also eviscerating SS and the Meds.

Though I wish they would do both.

I know, because God forbid if retirees received health and living benefits! Sheesh! The nerve . . .

[Kilmer17]

Yeah! The Govt teet for all. Let the rich pay for it!!!!!

[Wrong Direction]

I posted that DC Bar brief. (FWIW, it was not a "brief," but an article.) And its conclusion was that these are closer calls than initially thought. It also said the question of whether SS and Medicare are constitutional laws could be raised if the healthcare act is unconstitutional.

Neither SS nor Medicare have been challenged like this before.

Ok, I'll relent. I don't recall that part of the analysis, but it has been a while and you seem pretty sure. Maybe I just drew the distinction between the two?

[Tulane Skins Fan]

Ok, I'll relent. I don't recall that part of the analysis, but it has been a while and you seem pretty sure. Maybe I just drew the distinction between the two?

In the original ruling, the judge made several decisions based on various areas of the law being unconstitutional. For whatever reason, the appeals court here pretty much disagreed with him on everything except the idea that the interstate commerce clause cannot be used to compel a person to buy health insurance. This is gonna get very tricky going forward because the "compelling" that's here is a tax/fine. If the interstate commerce clause doesn't allow you to levy a tax or fine if you don't buy health insurance why can they levy a tax or fine for medicare, which is health insurance for the elderly, essentially. Why can they compel you to pay for one, but not the other.

Its a slippery slope as I see it. I am not predicting how this ends, but I am saying it potentially setting up a lawsuit for the repeal of medicare and social security.

One more thing about this, as I said, the only provision they threw out was the individual mandate. That means according to the 11th Cir., the medicaid provisions are constitutional, as are the provisions about not being permitted to put preexisting conditions on the table as bases to deny coverage. I am not so sure that Obama and the dems would cry if this was the final outcome, i.e. everything is constitutional except the individual mandate. The individual mandate was a point of compromise to try to get some republicans to go along with it, and also guys like Lieberman, and some of the blue dog dems. So, I don't think Obama would really care if the healthcare law was intact except for the individual mandate.

But I doubt this SC would put such a hurting on insurance companies like that.

[Larry]

Edit:

What's the difference between a "fine" and a "tax." Its really not much if you ask me.

Non-lawyer, but IMO, the difference is in the intent.

If the intent is to cause people to comply with the desired behavior (And if it's a negative incentive, as opposed to, say, a tax deduction), then it's a fine.

If the intent is to raise revenue for some other government function, then it's a tax.

----------

For example, I would assert that if Obamacare were written so that everybody must pay the tax, and the tax money goes to reimburse hospitals for the costs of uninsured patients, but if you have insurance, then you get a tax credit, then I'd say that's a complicated way of maybe making it fly.

Might even work if it was simply an "uninsured medical care" tax, that only the uninsured have to pay. As long as the money went to some Constitutional purpose, like reimbursing hospitals for the cost of the uninsured

Edit:

But I suspect that the Dems probably worked very hard not to call it a tax, because they had visions of being beaten over the head with "tax increases" campaign ads.