Patsfanin Philly

A friend sent me the attached opinion on the constitutionality of Obamacare and it raises several interesting points as to whether the bill in its current form ( insurance mandates) could survive Constitutional challenges based on recent Supreme Court decisions.
You can rest assured that if enacted, there will be court challenges by someone as soon as it is 'ripe' when it can be heard by a court. It raises several esoteric points of Constitutional law but the links explain the individual court cases.
A precedent would be the Supreme Court decisions on FDR and the New Deal.....Personally I think it would be upheld on left-right lines

Obamacare is Seriously Unconstitutional


On October 23rd, a _reporter_
(CNSNews.com) asked
Speaker Nancy Pelosi (D-CA): “Madam Speaker, where specifically does the
Constitution grant Congress the authority to enact an individual health
insurance mandate?” Speaker Pelosi shook her head and before moving on to
another question replied: “Are you serious? Are you serious??” Pressed for a
more substantive response later, Pelosi’s press spokesman admonished the
reporter: “You can put this on the record. That is not a serious question. That
is not a serious question.”

The Congressional Budget Office (CBO) disagrees. _In 1994, the CBO said _
(Congressional Budget Office - The Budgetary Treatment of an Individual Mandate to Buy Health Insurance
48:32517697C91247859B7A1BA1E02003DE) of an individual mandate to buy health
insurance:

A mandate requiring all individuals to purchase health insurance would be
an unprecedented form of federal action. The government has never required
people to buy any good or service as a condition of lawful residence in the
United States. An individual mandate would have two features that, in
combination, would make it unique. First, it would impose a duty on
individuals as members of society. Second, it would require people to purchase a
specific service that would be heavily regulated by the federal government.
As much as Speaker Pelosi may wish otherwise, the CBO is dead on: the
Supreme Court has never validated a federal power as intrusive as forcing all
Americans to purchase a service due to their very existence. Sure, the
Supreme Court has said that _Congress may regulate a farmer’s production of
wheat even if he never plans to distribute it off of his farm_
(Wickard v. Filburn - Wikipedia, the free encyclopedia
859B7A1BA1E02003DE) , and _the Supreme Court has said Congress may ban the
possession of Marijuana even if it is for personal use_
(Gonzales v. Raich - Wikipedia, the free encyclopedia
9B7A1BA1E02003DE) , but never before has the Supreme Court said the power
to regulate commerce enabled Congress to force an individual to do something
just because he existed.

In fact, the Supreme Court has always been clear that the Commerce clause
must have some limits. In _United States v. Lopez_
(United States v. Lopez - Wikipedia, the free encyclopedia
A1E02003DE) (1995), the Court struck down the Gun-Free School Zones Act,
which attempted to reach the activity of possessing a gun within a thousand
feet of a school. In _United States v. Morrison_
(United States v. Morrison - Wikipedia, the free encyclopedia
1E02003DE) , it invalidated part of the Violence Against Women Act, which
regulated gender-motivated violence. In both cases, the Court found the
regulated activity in each case to be noneconomic; it was outside the reach of
Congress’s Commerce power, regardless of its effect on interstate commerce.
The case for the constitutionality of the individual mandate is far weaker
than either of these two cases. Congress was at least trying to regulate
an individual’s activity in the cases above. But the mandate does not
purport to regulate or prohibit activity of any kind, whether economic or
noneconomic. To the contrary, it purports to “regulate” inactivity.

If the individual mandate is Constitutional, then Congress could do
anything. They could: require us to buy a new Chevy Impala each year to support
the government-supporteIf the individual mandate is Constitutional, then
Congress could do anything. They could: require us to buy a new Chevy Impala
each year to support the government-supporte<WBR>d auto industry; require
us [Socialism?]

Many on the left immediately point to state mandates that drivers purchase
car insurance as proof of a mandate that all Americans buy health
insurance is not new. But car insurance mandates are _distinguishable in at least
four ways_
(Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional) : 1) they are state
requirements and states have broader constitutional authority than the federal
government; 2) they apply to drivers only, not all Americans (e.g. passengers
are not required to carry insurance); 3) drivers use public roads; 4) states
only require drivers to insure against injury to other drivers, not to
insure themselves against personal injury.

Yesterday The Heritage Foundation’s Center for Legal and Judicial Studies
released a Legal Memorandum written in conjunction with Georgetown
University Law Center Professor Randy Barnett and Nathaniel Stewart explaining:
_Why the Personal Mandate to Buy Health Insurance Is Unprecedented and
Unconstitutional_
(Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional) . Introducing the paper,
Sen. Orrin Hatch noted:
James Madison said that if men were angels, no government would be
necessary and if angels governed men, no limits on government would be necessary.
Because neither men nor the governments they create are angelic, government
and limits on government are both necessary for ordered liberty. Politics
may tell us what we want to do, but the Constitution tells us what we may
do and we must keep those separate. The ends do not justify the means for
one simple reason – liberty. Liberty requires limits on government power, it
always has and it always will.
Someone needs to explain this concept to Speaker Pelosi. Seriously.
Legal Memorandum - "Why the Personal Mandate to Buy Health
Insurance Is Unprecedented and Unconstitutional" (see attached or online
at _http://s3.amazonawshttp://s3http://s3.ahttp://s3.amhtt_
(http://s3.amazonaws.com/thf_media/2009/pdf/lm_0049.pdf) )
More Info on Obama Health Care Plan -
_http://www.heritagehttp://wwwhttp://www.hehttp://wwwhtt_
(Obama Health Care Plan - Rapid Response | The Heritage Foundation)

____________________________________



Don't hold your breath, the crowd in power in Washington is perfectly ready to ride roughshod over the Constitution, as it did with the bankruptcy proceedings of GM negating two hundred years of precedent in overturning creditors rights.

Pardon my cynicism but never in my life have I seen such utter disregard for both Constitutional limits on Federal power (absurd stretching of the Commerce Clause, and basically blowing off 10th Amendment).
----------------------------------------------
Ed.-If this was taken from a copyrighted article, it was not my intent to
publish it in total. I believe that it was his personal opinion and thus I am free to publish the whole piece.

PatriotsReign

I truly hope this actually gets to the supreme court. Just to stall things on this cluster-F***

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Patters

There's no doubt that it will be challenged on Constitutional Grounds, especially given that we currently have activist right-wing Supreme Court. That said, however, there is an awful lot of precedence with social program given that Social Security is mandatory, that Medicare/Medicaid are government insurance programs, and VA hospitals are government run health programs. I think the Supemes would have to walk a fine line to rule against health care reform, though they might identify specific elements of the package that need to be modified.

But, as far as the quotes you provided, it's the usual Republican politician bluster. Those quotes are the same arguments they've been using for years, and frankly they have very few successes. But, again, this particular Supreme Court gives them at least an outside shot of preventing the government from providing health care to poor sick kids and their parents.

Patsfanin Philly

Which quotes? Because citing the court cases was done in a pretty objective way. As for the sick kids, with CHIP there is no reason that ANY child in this country currently should be without health care coverage.

CHIP Welcome to CHIP
Overview National CHIP Policy

I posted a few months ago that I would prefer to see a gradual expansion of a CHIP-type program to include more and more of the uninsured population and solve the problems you cited rather than a complete overhaul/dismantling of the current system. Concurrent with ways to decrease cost increases i.e. write policies across state lines and it increases competition.

Patters

Health care reform provides a lot of good stuff -- affordable insurance even if you have pre-existing conditions, access to insurance at affordable rates, transferability of insurance, administrative standardization and streamlining, and so on. The main problem with our current system is really not so much for the very poor, but for the poor working class who are not eligible for Medicaid, don't have benefits from their jobs, and can't afford insurance. This is the group that health care reform tries to help, but also provides everyone with additional protections.

CHIP is a good program for kids and pregnant women, but I think the Senate bill instead expands Medicare and Medicaid. I'm not sure why one solution was proposed over another; perhaps because with Medicare and Medicaid there's a largely body of established law or because it was easier to modify to incorporate those who it doesn't currently cover.

Mrs.PatsFanInVa

Gosh, and what president do you have to thank for that??? Considering The Children's Health Insurance Program Reauthorization Act was signed into law on February 4, 2009, it shouldn't be too hard to figure out.

However, since I'm pretty sure there will be at least one or two people who will be unable to do the math I've included a quote from PFinPhilly's cited article.

Calling it a "down payment on my commitment to cover every single American," President Barack Obama signed the Children's Health Insurance Program Reauthorization Act of 2009 into law on February 4, 2009. The law will provide health care to millions of children across the country and went into effect on April 1, 2009

Real World

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"The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him."
Leo Tolstoy, 1897

Mrs.PatsFanInVa

And this whole "save the children" thing, you think there is a reason this should be considered a bad idea?

Patsfanin Philly

You do know the difference between authorization and reauthorization??
Many bills have sunset legislation that require them to have followup bills and/or funding legislation after a certain time period or every so many years..
http://www.cms.hhs.gov/NationalCHIPP...dYearGraph.pdf

Children began receiving insurance through CHIP in 1997 and the program helped states expand health care coverage to over 5 million of the nation's uninsured children. The program was reauthorized on February 4, 2009, when the President signed into law the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA or Public Law 111-3)

For the record when the program was FIRST enacted in 1997, it was in a Republican Congress and a Democratic President. Facts, silly little thing aren't they?
The proposed healthcare bills actually do away with CHIP (formerly SCHIP)
CHIP on Chopping Block in House Health Reform Bill The Washington Independent

IcyPatriot

My how times have changed with the use of that word.