Legal analysis: The health insurance mandate is constitutional

Sep 14, 2010

The most politically charged feature of the health reform law is the mandate that legal residents have health insurance. Within weeks of the law's passage, twenty states had filed lawsuits charging that the mandate is unconstitutional because it gives the federal government more power than it actually has. The state lawsuits are widely expected to reach the Supreme Court next year. Legal scholar Lawrence O. Gostin writes that the health insurance mandate rests on firm legal ground.

Under the mandate, which goes into effect in 2014, the can levy a tax penalty on most individuals who do not have health insurance. "The pivotal constitutional concern is that the government will penalize individuals for failing to buy health insurance - for 'doing nothing,'" writes Gostin in the Hastings Center Report. Gostin is the Linda D. and Timothy J. O'Neill Professor of Global Health Law and Faculty Director of the O'Neil Institute for National and Global Health Law at Georgetown University Law Center.

Citing federal powers that apply to the health insurance mandate - the power to regulate interstate commerce and the power to tax - Gostin argues that the health insurance mandate is constitutional.

The power to regulate interstate commerce is relevant, he writes, because health care professionals, medications, medical equipment, and insurance claims routinely move across state lines. The federal government's power to tax is also relevant because the mandate is to be enforced through a federal tax, which will generate revenues to help support health care reform.

"The act's tax penalty is clearly constitutional because it helps pay the costs of reform (such as Medicaid expansion, subsidies, and state insurance exchanges) and corrects market failures (such as preexisting condition exclusions)," Gostin writes. "The mandate, therefore, is essential for expanding access - the raison d'être of health care reform."

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ArcainOne
not rated yet Sep 15, 2010
I know many people are against "Obama-care" but I am actually against this. People without health care are already running a great risk if they get sick and need to be hospitalized. That bill can easily run you 15,000 to 40,000. A normal doctor visit can run you a few hundred dollars depending on the tests they need to run and your drugs can cost around a hundred themselves. (Free Clinics help but they don't take the place of a hospital during emergencies). Unless this 'tax' is going to provide health care to those without it, I think it is wrong.
marjon
1 / 5 (1) Sep 15, 2010
Why not publish the OPINIONS of those lawyers that don't agree and are filing lawsuits?
Skeptic_Heretic
not rated yet Sep 15, 2010
Citing federal powers that apply to the health insurance mandate - the power to regulate interstate commerce and the power to tax - Gostin argues that the health insurance mandate is constitutional.

Except health insurance is specifically barred from being interstate commerce, removing the jurisdiction for regulation or taxation from the federal government.

I agree that everyone should have access to healthcare. This bill isn't the right way to do it and the legal basis for it is non-existant.
marjon
1 / 5 (1) Sep 16, 2010
Except health insurance is specifically barred from being interstate commerce, removing the jurisdiction for regulation or taxation from the federal government.

Allowing insurance companies to compete across state lines is a proposal that was shot down by the socialists so there are 50 state mandated plans each insurance company in each state must offer if they are to compete.
That sounds like the federal govt is ignoring interstate commerce.
Skeptic_Heretic
5 / 5 (1) Sep 16, 2010
Allowing insurance companies to compete across state lines is a proposal that was shot down by the socialists so there are 50 state mandated plans each insurance company in each state must offer if they are to compete.
That sounds like the federal govt is ignoring interstate commerce.
In this particular instance I think the right way to "fix" health insurance is a limited public option that covers catastrophic care and annual preventative care as well as allowing for national competition.

The insurance industry is an offshoot of the banking industry and adheres to many of the latter's pseudo-criminal intents and purposes. Effectively, the current regulations (pre-healthcare bill) allowed for local coercive monopoly. With proper regulation and national competition I think we'd see rather drastic changes in the insurance models.
marjon
1 / 5 (1) Sep 16, 2010
Effectively, the current regulations (pre-healthcare bill) allowed for local coercive monopoly.

What, you agree that it requires govt force to maintain a monopoly?
Skultch
5 / 5 (2) Sep 17, 2010
Effectively, the current regulations (pre-healthcare bill) allowed for local coercive monopoly.

What, you agree that it requires govt force to maintain a monopoly?


You seem to consistently assume that if sometimes things have a certain cause, then that is the only possible cause for that effect.

That would be like me saying "celibacy caused one priest to become a pedophile, therefore celibacy is the only possible cause of pedophilia." Ridiculous, right?
Skeptic_Heretic
5 / 5 (1) Sep 17, 2010
Effectively, the current regulations (pre-healthcare bill) allowed for local coercive monopoly.

What, you agree that it requires govt force to maintain a monopoly?

It doesn't require government force. In this case government regulations were leveraged to create a monopoly.
Thrasymachus
1.4 / 5 (11) Sep 17, 2010
I'm much more in favor of a universal single-payer system where individuals can buy "gormet" insurance if they want more extensive or expensive coverage. Insurance is one of those areas where it just doesn't make any sense to have anything other than a monopoly. If you split the pool of policy holders, you necessarily raise everyone's premiums and copays. Competition isn't needed to innovate new insurance products (look what happened with the last insurance innovation: credit default swaps) and corruption and waste are more efficiently dealt with through policing and regulation than competition for customers.
Skultch
5 / 5 (1) Sep 17, 2010
This could be tragically fallacious, but I like to add the idea of universal needs. Universal NEEDS, as opposed to desires, ought to require universal opportunity and assistance. Few things apply; such as defense, health, justice, education, etc. We may all use toothpaste, but it doesn't make sense to enforce the distribution of it.
Thrasymachus
1.7 / 5 (12) Sep 17, 2010
I don't use toothpaste. I prefer baking soda and salt. Better than universal needs might be common needs, where if you improve one person's life in some area, everybody else is made a bit better off as well.
marjon
1 / 5 (3) Sep 17, 2010
I don't use toothpaste. I prefer baking soda and salt. Better than universal needs might be common needs, where if you improve one person's life in some area, everybody else is made a bit better off as well.

The new universal health care policy will force everyone to use baking soda and salt. All those wasted costs on toothpaste and commercials can be use for something that the collective really needs.
Thrasymachus
1.5 / 5 (11) Sep 17, 2010
The new universal health care policy will force everyone to use baking soda and salt. All those wasted costs on toothpaste and commercials can be use for something that the collective really needs.

Yep. It's right there in paragraph 2045.32, line 5. "Personal dental supplies covered include only one nylon toothbrush per fiscal quarter and 3.5 ounces of a 2/1 baking soda/sodium chloride powder mix that shall not contain more than 3 ppm cocaine. Should benefits be used to purchase any fluoridated gel, paste or rinse without authorization, both policy and policyholder will be terminated immediately, and the policyholder's estate will be liable to repay all past benefit payments."
Jimee
5 / 5 (1) Sep 19, 2010
"Your" country? Continue killing the sick and the poor? Letting the unfortunate die in the streets? Thank God for Liberals and decency!
marjon
1 / 5 (2) Sep 19, 2010
"Your" country? Continue killing the sick and the poor? Letting the unfortunate die in the streets? Thank God for Liberals and decency!

We can do what the UK does, let the unfortunates die in hospital.
"More than 17,000 people receiving treatment in the UK have died unnecessarily because of the inadequacies of the NHS, it is claimed today."
http://www.guardi...8/health
ForFreeMinds
1 / 5 (2) Sep 20, 2010
The author fails to mention legal analysts who hold the law is unconstitutional. Gostin (who worked on Hillary Clinton's health plan) says it's constitutional because "because it helps pay the costs of reform (such as Medicaid expansion, health insurance subsidies, and state insurance exchanges) and corrects market failures (such as preexisting condition exclusions)." Note that he's not cited provisions in the constitution that support his assertion. The market failure that needs to be corrected is government meddling in the free market.

Here's an interesting fact. David Goldhill, CEO author of "How American Health Care Killed My Father" and a lifelong Democrat, wrote that seniors on Medicare now pay more out of pocket than before Medicare existed. That's how messed up the market is.
ForFreeMinds
2 / 5 (4) Sep 20, 2010
For an alternative view on why Obama care is unconstitutional, see http://www.cato.o...d=11600.

I'll point out that if government can force you to buy insurance, they can force you to buy anything. Soon manufacturers will be bribing (I mean contributing to political campaigns) politicians for force you to buy their product. So personal decisions will be decided by government, not by you.
Skeptic_Heretic
not rated yet Sep 20, 2010
"Your" country? Continue killing the sick and the poor? Letting the unfortunate die in the streets? Thank God for Liberals and decency!

We can do what the UK does, let the unfortunates die in hospital.
"More than 17,000 people receiving treatment in the UK have died unnecessarily because of the inadequacies of the NHS, it is claimed today."
http://www.guardi...8/health
Go ahead and try to source that article. Let me know what you find.

Then again, you're just a troll so you'll probably make up some bullshit story about that too.

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