One thing seems certain to me: The mandate is going to end up in the Supreme Court

[mcablue]

I'm not going to pretend to be Nostradamus and predict what the outcome would be, but Anthony Kennedy is a libertarian. That shouldn't bode well for pro-mandate folks.

That said, I don't know whether it's constitutional or not.

[jefferson_dem]

1. Perhaps but not as likely to be overturned as the abortion language.

If states are allowed to put in place different regulations on insurance coverage of abortion, that seems to be a clear violation of Equal Protection and the "undue burden" standard.

I'm not sure what about the mandates is unconstitutional though. There's definitely (imho) no commerce clause problem.

[JTFrog]

2. Imma let you finish, but Nostradamus was the best predictor of all time.

Of all time!

:eyes:

[NYC_SKP]

11. Imma let YOU finish, but Edgar Cayce had the best predictions, Nostradamus was, like, too vague.

:P

[CoffeeCat]

3. The corporate thugs...

...who set this entire thing up--probably set up Obama as well.

Does Obama forget that he was not supposed to be President? It was all orchestrated--Hillary a corporatist
DLCer would be the Dem nominee and McCain would be the Republican nominee. Either way, the cabal had someone
on their team winning the Presidency.

Then along comes Obama--unexpectedly winning the Iowa caucuses with his campaign gaining momentum. It wasn't
supposed to happen.

I'm sure, as the corporatist vipers realized that Obama could win--they schooled Obama and told him how the game
would be played. He's kow towed to their every move--from installing Rahm to Geithner to Robert Gates to handing
the banks their bailout and now--this big health-insurance boondoggle giveaway.

Obama needs to realize that these people are not his friends. They're strong-arming Obama into catering to their
agenda--but that doesn't mean that they won't sink him like a stone.

Can you imagine if Obama's healthcare plan goes to the USSC, and it is declared unconstitutional? How would that look
if a "constitutional scholar" and his centerpiece healthcare plan was declared against the law of the land. He'd
be destroyed.

Interesting point to ponder. I hadn't thought of it.

I'm all for healthcare reform. Problem is--this is health insurance. It's not reform. And it's easy to connect the
quid-pro quo dots. All you have to do is show the health-insurance contributions to key Dem Senators/Congress members AND Obama--
and show what a giveaway it is to the health-insurance industry--and it doesn't take long for a President (and an entire
party) to look like complete screw ups.

Come on Obama--if people from Hoboken and Walla Walla can figure these things out--while bantering on a messageboard--why
the hell can't you?

[mcablue]

4. I think challengers would have to wait until 2014 in order to send this to the SC

Because you have to be affected by something in order to challenge it and the mandate doesn't kick in until that date, I believe.

[RC]

9. Why can't Obama figure it out?

Because he would rather die of old age.

[brentspeak]

10. Set Obama up?

From Day One, Obama has been working hand-in-hand with Big Health to grab as much industry dollars for the Democratic party (and for his own reelection campaign) as he can. The whole HCR struggle between Obama and the GOP is basically the story of which side gets the money. Obama 'won' -- but the GOP didn't come a loser, as they got plenty of insurance co. dollars for opposing the public option. The real losers are the American people.

[rurallib]

5. They will tie it up in courts as long as they can to delay implementation

so that even if they lose they will do what they can to keep any work from being done on it.
I told Mrs. Lib during the run up to Iowa that the repugs will pull every trick available to them to stop health care change of any kind.

[AllentownJake]

6. The bill has 3 constitutional questions

1) Mandates
2) Abortion language on the state opt out
3) Ben Nelson Medicaid compromise

[Zynx]

8. #3 is not a real question.

There's not a chance that is unconstitutional.

[Hamlette]

13. #1 is not constitutional and none will tie up the whole bill from being implemented

mandates are the only thing in the bill that makes sense, it will be upheld.

[AllentownJake]

14. Making sense does not matter

It is whether it is in the scope of federal power or violates an amendment to the constitution in the eyes of the judges determining it.

[Hamlette]

31. sorry, I meant "makes sense" in terms of an argument for striking down the bill n/t

[Zynx]

7. On what grounds?

[AllentownJake]

15. It is an unprecedented expansion of Federal Power

Some people like to use the car insurance example, however car insurance is not a mandate. It is a condition of having a driver's license and registering a vehicle for use on public roads owned by the state.

You can own an automobile without insurance, you just can't use it on the public roads.

I cannot think of one example where the federal government can mandate a person to purchase a product from a corporation for the very act of being alive.

The income tax needed a constitutional amendment to pass, because there was no provision in the constitution that gave the Federal Government to Tax citizens directly. That was a power that was reserved for the state.

So you can use the 10th amendment or the 4th amendment as an argument that this is an unconstitutional provision, as requiring a person to purchase a product from a third party could be construed as an unreasonable siezure.

It really is up to the judges to evaluate.

[Zynx]

17. No offense, but this strikes me as a very weak argument.

This is only a slight matter of degree different than car insurance. The argument could easily be made that everyone is essentially a user of the public health system and that the free rider problem is one sufficiently large to require mandated coverage to mitigate it.

Just because it has not been done exactly in this form before does not mean it is unconstitutional. This is more a political question

Because this has been done through the legislative process in a non-discriminatory way, it would hard to make either an unreasonable seizure argument or a deprivation of property without due process argument.

Everything's technically up to the judges, but the odds are overwhelming that the Supreme Court won't even hear this case. It's not a legitimate constitutional discussion. Some crackpot lower court might, but the Supremes won't.

[AllentownJake]

18. Sorry that is weak

There is no "public health system" the public health system is a combination of not for profit and for profit entities that compete to provide service to people. You can't compare a road, which is owned by the state to a doctors private practice office, non-profit catholic hospital, or large for profit hospital entity. If the government owned the items you are speaking of, than I guess you could charge for a license to use them.

The Supreme Court will hear this case one way or the other, they will either argue the merits of the case or reject it. Rejecting to hear the case, is hearing the case. Since this is a penalty imposed on people if they do not purchase a product in the private market for the simple act of being alive, I fully expect there to be a Supreme Court Case.

There is no precedent I have seen, for the federal government doing something like this, and generally those things are heard, to clarify the issue and determine what the federal power is.

It may be upheld, but I'm willing to bet it is heard.

[Zynx]

22. There are huge implicit costs to government.

Nearly half of the funding for health care comes from the government. Free riders help to pass additional costs on to the public has a result.

Also, regarding roads, you cannot reasonably live in the modern world without access to the roads. Sure, you can be a total shut in, but it is recognized that access to public roads has become a necessity. The courts do recognize that certain things have become necessities of life over time.

The court may hear it just to slap it down 9-0. This is a horribly underdeveloped argument that those with political axes to grind may make. At this point, I have yet to see anyone with neutral motivations challenge this.

[AllentownJake]

24. You aren't arguing legally

The fact is the state owns the roads and therefore can determine who can utilize them for protection of the states asset, safety, and other purposes. You can make an argument for "equal access" but as long as the access is not unreasonably dicriminatory the state can make laws concerning its property.

If I had a billion dollars and wanted to create a private race track where I drive around at 150 miles per hour, the state really can't require I have a drivers license to do so. I can own the car and the only place they can fine me for utilizing it is on state property. The penalties for driving without insurance are limited to state property, i.e. the public road system.

You can use all the "modern world" arguments you want to our legal system is based on 18th century law.

The court don't care about necessity, they care what the law is and therefore have to justify something with a legal reasoning.

Find me one instance where the court has ruled on the necessity instead of the law.

[Zynx]

28. A great deal of utility regulation has been founded under the fact that

certain things, such as telephone service and electric utilities became such a need that they warranted public regulation and even control. It became more than just an issue of private transactions.

I'm not arguing that necessity is separate from the law. I'm arguing that when determining the state's interest, which is a legitimate basis, necessity comes into play.

[AllentownJake]

29. They used legal arguments

Mostly the commerce clause. It's hard to argue the commerce clause, when you are requiring an individual to engage in commerce involuntarily.

[krawhitham]

26. "You can own an automobile without insurance, you just can't use it on the public roads."

Not in Ohio, I was taken to court and lost

[AllentownJake]

30. Really in PA

They can take away my plates, they can't take my car for not using Insurance. Did they take your car when you didn't have insurance?

[Hamlette]

12. you got a law degree to go with your legal bs?

it is not unconstitutional and it will not "end up" in the Supreme Court.

Those who think it is unconstitutional think income taxes are unconstitutional. On the same theory. At least read up on the issue and find out what they base their challenge on before you make predictions.

Jane.

[AllentownJake]

16. Not exactly

There was a constitutional amendment required for income taxes and the provision is very specific in that amendment.

This is in reality an unprecedented move by the federal government and will end up in the Supreme Court.

Both a 10th amendment and 4th amendment argument can be made against the mandate provision and I've yet to hear an argument other than insults against those arguments or another amendment that allows for the provision that overrides those amendments.

[Hamlette]

32. government mandates I have workers comp and auto insurance

and there is no constitutional amendment for either

The mandate is the best part of the bill as I'm tired of paying for those who don't want to pay for insurance.

(and what does "not exactly" mean?)

[vaberella]

19. Mandates are unconstitutional? We have them in almost all aspects of bureaucracy. n/t

[mcablue]

33. I don't think anyone is lumping every single mandate together

But this one on health care only, due to the fact every American will be required to have the product.

[stevenleser]

20. If so, my guess is that mandates will be upheld based on this little part of Article 1, Section 8

Clause 18:

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

mind you, I am not a lawyer, nor do I play one on TV.

[AllentownJake]

21. No

I don't think that really helps the argument when weighed with other clauses.

[Undercurrent]

23. People thought that SS would be overturned by SCOTUS too.

I'm very thankful every single day that they didn't.


"And at all stages there hung over the social security bill uncertainty as to its constitutionality. These doubts were increased during the pendency of this bill in Congress by the decision of the Supreme Court holding the Railroad Retirement Act to be unconstitutional. Considerations of constitutionality had much to do with the plan proposed and adopted for both of the social insurance programs. A majority of the members of the Senate Committee on Finance believed old-age insurance to be unconstitutional, and it is my belief that several voted for it in the expectation that it would be invalidated by the Supreme Court."
http://ftp.ssa.gov/history/witte4.html

[AllentownJake]

25. Yes and other New Deal programs were struck down by the court

The fact is the constitutionality of Social Security was heard by the court and decided and the mandate provision will be as well because it is without precedent.

[ProSense]

27. .

:rofl: