KO tweeted a link to WaPo re: a Conservative law professor says the govt can mandate

[Ilsa]

insurance because it regulates other "inactivity":

Conservative legal scholar: We already regulate inactivity
By Greg Sargent

In an interview with me just now, a conservative law professor made an interesting case for the individual mandate: In multiple cases, he said, the federal government has already regulated "inactivity," and it has passed muster with the Constitution.

The cases this professor cited: Jury duty, and the draft.

New York University law professor Rick Hills describes himself as a "registered Republican and outspoken conservative," but he maintains that the primary argument conservatives use against the mandate -- that it's unconstitutional to regulate economic inactivity by forcing people to buy insurance, as Judge Vinson ruled -- is bunk.

Hills frames the question this way: If the federal government can't tell people they don't have the right to refuse to buy insurance, then why was it okay for the federal government to regulate people's "pacifism," i.e., their refusal to fight in wars? Why is it okay for the government to regulate people's refusal to serve on juries?

"If you can regulate inaction to raise juries, and you can regulate inaction to raise an army, then why isn't there equally an implied power to conscript people to buy insurance, to serve the goal of regulating the interstate insurance market?" Hill asks.

http://wapo.st/dXwtv8


SNIP

[ProSense]

1. The mandate maybe unpopular, but it's not unconstitutional. n/t

[RandomThoughts]

2. First it has to pass the test of a representative government by a well informed populace.

After that, the question is needs of the state as directed by 'society leaders'

Note that 'society leaders' depends what you think defines who should lead, if you believe in monarch, plutocracy, theocracy, or democracy, those things would be different.

Which is also why society actually exists as many overlapping governances, private, theological, popular, etc.. Even things like organized crime is a form of governance within society.

But to the point if governance can 'issue an order of action' that is about what government system you follow first. If a governmental segment like 'popular' actually merged with 'plutocracy' and plutocracy can be shown to be a wrong governance, then the reason government would not have that right is a basic disagreement of them having authority over a person.

There is an argument against draft, and against jury also. And government can not make you serve on a jury, just don't participate, they can make you appear at a jury not be part of one. They can't make you fight in a war, just don't shoot anyone, same thing.

So the real question is do they have the right to remove an economic earning, damage a societal peer raiting with a 'record' and even confine a person by arrest for not agreeing with social government.

That all comes back to does the government represent the people, if they do, most will go along with that decision, if it also protects minority rights. It is when government ignores the people (public option) that it loses its credibility to govern, since it is through the will of the people that it gets its trust to do what is best without push back.

In the same way if a corporate system was just (no excessive wages since that is obviously unjust) then people would agree with those systems as a structure to facilitate production and distribution.

However since some people do not want a just system, and want what they want done without a just argument or education they try to make people do things. Instead of trying to educate the people they try to 'sleep' them so that they will not know what is done to them. Nor go against it.



It is the same question of why a draft is not allowed for unjust wars, if people don't agree with a war, a draft wont work. If people don't agree with not being listened to, then a legislation wont work.

The basic question is should a governance, any governance, including private and theocracy be allowed to tell you what you have to do with out being able to explain or teach why you should do it.

The mandate, most would agree with if the history of the governance was not also corrupt. The basic concept is not what people are against, it is the consolidations they know are unjust, and how government is adding to some of them not correcting them, so anything the government does, private or public governance becomes questionable and they lose any authority they thought they had.

And it takes more belief in a just ability to govern to draft or compel an action then restrict it.


If you agree with that and decide to educate the population, the next thought is, 'but then they would take away power and control'. Which is the point, people are doing things for those things, not for a just and compassionate society. And when you point that out, it shows why some like secrecy and dumbing people down.


Or to make it easier. Some people think governance is telling someone what to do. Some think it is teaching what someone should do.

[hansberrym]

3. Somebody please tell that jackass that the War on Poverty is just a metaphor.

How bad is it when a supposed legal scholar does not understand the difference between Congress' power to call forth the militia, the power to declare war, and the power to regulate commerce?

[Fool Count]

4. Another argument in favor of constitutionality would

be that the same effect could be achieved by simply imposing a federal tax on individuals in the amount of the penalties for lack of insurance and
then refunding that exact amount to all those with qualified insurance on their tax refund. Nobody could claim that it would be unconstitutional
as the Federal Government's right to levy taxes is well established and there is no practical difference between the two arrangements. It is like saying
that mortgage interest deduction is a federal mandate to buy a house.

[unblock]

6. exactly, i've made that point elsewhere, and even before the law was passed.

the real point is that it means that the way they actually did it is different only in form, not in substance. it would be a small technical change to write it through the tax code.

now that the house is republican, however, there will be no such technical change forthcoming should the scrotus knock the law down.

but i doubt they actually would knock it down. in fact, the administration could even argue that its constitutionality flows from the income tax amendment, even though it's not part of the internal revenue code. the income tax amendment does not require that all income taxation flow through the irs.

[Fool Count]

10. Here is the same argument (and few others) made

slightly more eloquently: http://www.nybooks.com/articles/archives/2011/feb/24/health-care-reform-unconstitutional/

Of course, constitutional law (or common sense) was never among important considerations for ideologically driven SCOTUS judges.
If they can appoint a loser of a presidential election to be president, nothing is impossible.

[LonePirate]

5. Someone should propose a compromise: Ds will support mandate repeal if Rs will support public option

[thotzRthingz]

7. "the govt can mandate insurance because it regulates" WRONG, DEAD WRONG!

Not you, of course, but the examples cited:

1. DRAFT -- not everyone MUST serve... firstly; there is no draft... secondly; there are exemptions and deferrals (some are for indefinite periods of time)

2. JURY DUTY -- again, not everyone MUST serve... there are exemptions and excusals

[thotzRthingz]

8. regarding "tax code changes" and/or other enforcement/mandate approaches:

I think some are missing the point entirely:

The goal is to cover everyone (?) with access to affordable healthcare, right?

INSURANCE (whether mandated or voluntarily purchased) is no guarantee toward meeting said goal. People already voluntarily BUY insurance (and will perhaps be mandated to buy it as well)... but far too many are holding essentially WORTHLESS POLICIES (i.e., they get DENIAL after DENIAL)... and that will NOT change, as there is literally nothing which FORCES healthcare/pharmaceutical "providers" to hold down COSTS ... thus making many things now, and even more many things in the future, simply OUT OF REACH... to the average person's budget (assuming they also lead somewhat normal lives: planning for retirement, kids college funds, life insurance, auto insurance, groceries, a roof over their heads, utilities, and the list goes on & on & on).

[MahatmaOlbermann]

12. Agreed

It doesn't cost me any money to serve on a jury or be drafted. I don't have to pay ANYTHING to do either of those things.

[Recovered Repug]

9. The power to raise an army

and the guarantee of a trial by jury are both defined in the Constitution. So wouldn't the draft and regulating jury duty fall under the "necessary and proper" clause?

[MahatmaOlbermann]

11. Olbermann swings and misses

It doesn't cost me any money to serve on a jury or be drafted. I don't have to pay ANYTHING to do either of those things.

[Ilsa]

13. Directly out of pocket? No. But for some people, it does cost to serve on a jury.

There are usually exemptions for caregivers, but I've not seen one for contract workers. For example, a substitute teacher who gets paid by the day might lose $100/day by being selected.

[MahatmaOlbermann]

14. And there are various hardship exemptions, another swing and miss