Good post (annoying spelling errors notwithstanding) here on the individual mandate and the concept of a federal government of enumerated powers.
Special kudos to this:
While taxes may have a regulatory purpose,...is there truly no limitation on Congress' ability to coerce through taxation what it cannot do through regulation? Should Congress really be able to take, as is the case here, up to two percent of a person's income because [he] has failed to do what Congress cannot compel [him] to do?
And this:
It will be tragic because the notion of a Congress limited by the scope of its enumerated powers will have finally suffered the coup de grace. The Bill of Rights (once famously - and now ironically - thought to be unnecessary given the structural limits on the power of the national government) will become the only limitation on the power of Congress. If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects [sic] interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save [for] some other constitutional restriction - it cannot require you to do - or prohibit you from doing.
My one point of disagreement with the author: He implies that the continuation of Obamacare is not in itself tragic, despite his acknowledgment that it will probably "do more harm than good" and lead to a single-payer system.
Otherwise, a useful article concerning just one of the things that some of us are going on about when we refer to the disastrous nature of the recent bill.
HT: James Allen
Comments (87)
"If Congress can require you to buy health insurance because of the ways in which your uncovered existence effects [sic] interstate commerce or because it can tax you in an effort to force you to do anything old thing it wants you to, it is hard to see what - save [for] some other constitutional restriction - it cannot require you to do - or prohibit you from doing."
On Lawrence Auster Blog I Seen a Similar Comment by A. Zarkov.
Here http://www.amnation.com/vfr/archives/016019.html
"Rule by decree. This is the path that Obama and the Congressional Democrats are on. However this journey started with FDR, and the infamous Wickard v. Filburn Supreme Court decision in 1942. Before Wickard, we more or less had a federal government based on enumerated powers. The framers put in the Commerce Clause because they feared the states might erect tariff barriers against one another. Little did they realize that one day this clause would be used to eviscerate the entire idea of a government with enumerated powers. After Wickard, anything, and everything became some form of commerce, because any activity could affect some aspect of commerce. Now the Democrats are playing the same game with reconciliation. Anything and everything can potentially affect the budget; therefore any legislation can be considered to have a "budgetary" aspect."
Posted by The Phantom Blogger | March 23, 2010 5:58 PM
or
http://balkin.blogspot.com/2010/03/if-you-cant-stop-bill-just-have-another.html
Unless five of the Supremes are in the tank (see Bush v. Gore), these challenges are mere posturing. This is a tax and the Constitution is clear that Congress can pass a tax.
Posted by al | March 23, 2010 6:09 PM
I am not a lawyer (I apologise for bragging during Lent) but after reading a lengthy exchange between Messers Gutzman and Bramwell I came to think that the adoption of the 14th Amendment rendered nugatory any idea of Federalism or enumerated powers.
http://www.takimag.com/site/article/original_sins/
I used to have romantic thoughts about the separation or this and the enumerated that but, at least as far as I can understand it, The 14th Amendment was the Toe Tag on Liberty and that, only now, some are just beginning to smell the corpse.
Posted by I am not Spartacus | March 23, 2010 6:20 PM
Being Legal and being Constitutional are not the same thing. I think that this is Legal but not Constitutional, but the Supreme Court has rewritten the meaning of what these ideas were originally intended to mean, so I don't see any ways to legally oppose this other than to overturn a large number of the Sumpreme Courts past rulings.
Posted by The Phantom Blogger | March 23, 2010 6:39 PM
Phantom Blogger--I hold no brief for the previous precedents you have in mind. I think they are ridiculous. Nonetheless, I agree with the point made in the article I linked to the effect that the present legislation goes beyond them in that it makes _simply existing within the borders of the U.S._ a state in which you can be required to _engage in_ Interstate Commerce that you were not previously going to engage in, by Congress. This is indeed new ground, outrageous though previous precedents (on growing wheat for private consumption, for example) were.
If Congress can use its ostensible "power to tax" to fine every existing person in the U.S. for not purchasing some good or service, then, as the article says, Congress can do anything. Which, again, means that we can write R.I.P on the original American Republic as a government of limited and enumerated powers under *any limits whatsoever*. This is really the nail in the coffin which hadn't yet been pounded home. And that is new and sad.
Posted by Lydia | March 23, 2010 8:19 PM
I wasn't disagreeing, I think the is new and Unprecedented in its manner and use of force, I just don't see what can be done the way things stand. I don't think states trying to opt out of this will hold, I think Federal control with overrule them and the Supreme Court will assist the Feds with this.
I think we have to look at this long term Repulicians have to run on a platform for overturning this. If it was me I would run on the platform of overturning this, The Welfare Stare, Social Security, the Supreme Court decisions and Constitutional Amendents that made this and all the other Leftist advances possible but that isn't likely.
Posted by The Phantom Blogger | March 23, 2010 9:12 PM
We could start to pound out one of the nails of this coffin with what should be the next amendment to the Constitution: If 60% (or 2/3) of the states find that a law passed by Congress exceeds the powers granted to it by the Constitution, then that law is null.
I don't know if we could get 60% of the states to vote so on this law, and that wouldn't be the basic reason for pushing this amendment anyway. But if we got to 50% and counting, we might just possibly achieve a Congress willing to reign in the absolute worst features of the bill so that it doesn't make Congress the arbiter of all that might possibly affect commerce.
Posted by Tony | March 23, 2010 9:45 PM
"Unless five of the Supremes are in the tank (see Bush v. Gore)..."-al
That was a 7-2 decision, al. Climb out of that sore loser tank. Even the NY Times admits Bush won the Florida vote.
"This is a tax and the Constitution is clear that Congress can pass a tax."
Under your theory, al, if our august Congress passed a tax taking everything you have, al, and maybe allowing you a tax credit for this or that action of yours that Congress approves, you cannot object for you must also call that constitutional.
Those Who Do Not Obey Shall Not Eat is not a principle of the U.S. Constitution. Maybe now you can see where you've made your wrong turn.
Posted by Micha Elyi | March 23, 2010 9:54 PM
This health care bill requires a property tax on all persons that exist in the United States. So, how ironic is that the first black president would be the one to bring back the first principle of slavery. Just as only Nixon can go to China, only Obama can reinstall the chains.
Posted by Francis Beckwith | March 23, 2010 10:44 PM
A national property tax on everyone's bodies; something only a black president could pull off. What a screamingly accurate formulation.
Posted by Zippy | March 23, 2010 11:04 PM
Thanks Zippy. I always love it when we agree!
Posted by Francis Beckwith | March 23, 2010 11:18 PM
Tony,
Why stop there?
"If 2/3 of the states shall, by resolution in their legislative bodies, declare that they have no confidence in the performance of Congress or the President, the entirety of the Congress or the President, Vice President and their appointed officers, shall be dismissed from office and a new election called within thirty days."
Posted by Mike T | March 24, 2010 6:43 AM
**No one so dismissed from office may hold federal office for a period of ten years.
Posted by Mike T | March 24, 2010 6:47 AM
It makes you wonder what the distinction between 'fine' and 'tax' is supposed to be.
Posted by Matt Weber | March 24, 2010 8:05 AM
Incidentally, since Congress had to be specifically granted the power to tax income directly via an amendment, where does the power to directly tax existence arise from?
Posted by Matt Weber | March 24, 2010 8:08 AM
Good point, Matt. Even on the scary and ridiculous "this is a tax" argument, it isn't an income tax. In fact, it would apply to homeless people as well who don't have any income. Everybody is required to have health insurance! True, the government will give "credits" to the people without the income. I get that. But the point is that the entire structure depends simply on one's existence and is not tagged to income at all. Giving the IRS power to enforce it (which I gather is the idea) is just part of what's wrong with it. The idea that making the IRS the Big Brother busy-body over whether you have enough health insurance from month to month makes this _constitutional_ is not only frightening but laughable.
Zippy and Frank--excellent. A property tax on everyone's bodies.
Posted by Lydia | March 24, 2010 8:58 AM
The courts love to twist language and logic. That is how they got away with deciding that "more tax revenue" is a "public use" of seized property under the 5th amendment's eminent domain requirements.
What people need to realize is that the law is something which any person of reasonable intelligence can understand in most cases. Where it gets complicated is when the judiciary creates rules and nuances whole cloth. There is a self-reinforcing mechanism to this. The courts do something bad, then in the spirit of procedure and tradition worship, they declare that they cannot undo the bad ruling because of the chaos that that would necessarily bring.
Anyone who thinks that this streak is admirable needs to see how Alito, an ostensible conservative, is uncomfortable overturning Roe v. Wade on the grounds that precedent demands respect, even if he thinks the precedent is just wrong.
Posted by Mike T | March 24, 2010 11:04 AM
**the threat of chaos is often overstated by the courts and their defenders with regard to overturning precedent. Obviously, it should not be overturned on a whim, but strict constructionists should have zero qualms about overturning naked expansions of state power since the greater danger comes from the long-term erosion of the primacy of the constitution since that is the source of the law's legitimacy.
In some cases, the basic matter of justice is so great that it is (morally) criminally negligent for the judiciary to uphold precedent and for the state to not act swiftly in carrying out the changes. Abortion is the biggest example today. The courts should not fear the consequences if a 1,000 rioters take to the street to raise hell about their state outlawing it. The state has the legitimate authority and means to crush such an insurrection.
Posted by Mike T | March 24, 2010 11:11 AM
"Good point, Matt. Even on the scary and ridiculous "this is a tax" argument, it isn't an income tax. In fact, it would apply to homeless people as well who don't have any income."
Ok, let us go to the source:
"Patient Protection and Affordable Care Act (Enrolled as Agreed to or Passed by Both House and Senate) H.R.3590
Subtitle F--Shared Responsibility for Health Care
PART I--INDIVIDUAL RESPONSIBILITY
SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
(e) Exemptions- No penalty shall be imposed under subsection (a) with respect to--
`(1) INDIVIDUALS WHO CANNOT AFFORD COVERAGE-
`(A) IN GENERAL- Any applicable individual for any month if the applicable individual's required contribution (determined on an annual basis) for coverage for the month exceeds 8 percent of such individual's household income for the taxable year...
`(2) TAXPAYERS WITH INCOME UNDER 100 PERCENT OF POVERTY LINE...
(3) MEMBERS OF INDIAN TRIBES..."
There are also religious conscience exemptions and illegal alien exemptions.
Lydia, there seems to be a pattern here. Beginning last summer , you have repeatedly made claims on what the proposed (and now passed) HCR bill will do. I then go into the actual bill and post the results. So far you have a 100% record of being dead wrong. You are obviously relying on some source(s) other than the actual bills. Your sources are obviously lying to you. Why are you still listening to them?
Oh, and folks might wonder. Presidents since Washington and certainly Johnson, Nixon, Carter, Reagan, Bush (41), and Clinton have all managed to preside over tax increases without having their race brought into the discussion. Just noting and I'm sure I'm not the only one.
Posted by al | March 24, 2010 12:45 PM
So those people won't be covered, Al? But all the people on _your_ side said that a major part of the purpose of the bill was to provide coverage for just those individuals. So Congress is still mandatorily taking control of their healthcare by this bill. So the bill is not just about taxing people but about taking control of the health insurance industry of the country.
The point of my comment was not that homeless people are going to be thrown in prison for not paying a fine they can't possibly afford. I knew _that_ wasn't going to happen. Somehow, the government is going to provide the required coverage for them. I got that and do get that. My point was that this entire bill and the requirement that everybody be covered is not merely the levying of a tax but is a *requirement that everybody have healthcare under a government-approved plan*.
Posted by Lydia | March 24, 2010 1:13 PM
Thanks, that clears it up nicely. The tax argument is just dishonest; what we have here is a penalty, or fine, imposed on those who are financially able to buy health insurance and don't, rather than a tax imposed for the purpose of increasing revenue that just happens to have an exemption for possessing health insurance tacked onto it. The duplicity here is amazing; it's claimed that the healthcare bill wasn't actually about healthcare and 'expanding coverage' but was rather a relatively banal budget adjustment that as a minor objective also aims to help people with health insurance costs via tax deduction.
Posted by Matt Weber | March 24, 2010 1:30 PM
Did they preside over the initiation of a new national property tax on the bodies of citizens?
Posted by Zippy | March 24, 2010 1:44 PM
"I got that and do get that."
Then why assert it? One of the problems with a passionate commitment to an ideology is that one seems inexorably driven to create ones own facts.
"My point was that this entire bill and the requirement that everybody be covered is not merely the levying of a tax but is a *requirement that everybody have healthcare under a government-approved plan*."
Rather then make stuff up, why not tell me why that is a problem? Take a look at the Medicare supplemental insurance market and tell me what the problem is with the various Federal and state regulations. Some might think it's nice to be able to buy a policy without having to worry about the fine print.
The reality is that we have made a decision that we prefer not to have the sidewalks cluttered with the dead and dying. At some some point any sick or injured person will have access to healthcare in an ER. There are all sorts of costs associated with that and there is a logic that will out.
Many of your fellow citizens don't have an automatically negative reaction to having the federal government lay out a level playing field in an area where the absence of that role has led to all sorts of problems. Tell us how to solve those problems without the government laying out that field (I assume you understand that if we are going to require insurance companies to eliminate caps, recessions, pre-existing conditions, and meet expenditure requirements then we are also going to have to have an individual mandate). So far the only answer you have provided is that it is better to die than have the government involved. That may not satisfy many.
As for "my side". My side would have created a single payer system with supplemental insurance, insurance companies being non-profit and regulated as public utilities. This bill does a lot of good things and allows for many more to be covered but I'm supporting it only as a beginning.
Posted by al | March 24, 2010 2:04 PM
"Did they preside over the initiation of a new national property tax on the bodies of citizens?"
No, and neither has this one. The term is meaningless and was clearly crafted by its originator to introduce race into the discussion.
Posted by al | March 24, 2010 2:34 PM
Matt Weber, thank you. Exactly. The point is that the person who "breaks" the law requiring him to buy the insurance but who makes too little money is not forced to pay a "penalty," but this doesn't make the "it's just a tax" baloney anything other than baloney.
Posted by Lydia | March 24, 2010 2:44 PM
Suppose that the federal government set up a requirement that everyone belong to a gym and go and exercise in a documented manner for at least a half hour at least three times a week. Then, when someone says this is beyond the government's enumerated powers, the feds say that it is included under their "power to tax" and make the IRS responsible for deducting a penalty for gym fees and a fine for failure to take documentable exercise from people's federal tax refunds. However, they include a provision that no _penalty_ shall be assessed to people with income below such-and-such a level if they fail to follow the requirements. Their gym fees will be paid by the government, but there will be no way to collect their fines for not exercising. Productive citizens, however, who meet the minimal income cut-off, will (in this hypothetical scenario) have Big Brother monitoring their exercise and penalizing them if they don't follow the regulations.
How is this not _utterly inconsistent_ with _any notion_ of a government limited to its enumerated powers? _Of course_ it's inconsistent with that. Nor would the fines in question be mere "taxes" under the income tax provision of the amended Constitution. They would be fines, pure and simple, for failing to do what the all-controlling federal government told you that you must do. Hence, _not_ covered by an enumerated power of the federal government.
Al, if you can't see this, then you are not as bright as I think you are. You just don't want to see it.
Posted by Lydia | March 24, 2010 2:52 PM
al,
Your side doesn't seem to know the first thing about economics. On day one in Econ 101 you hear about the law of supply and demand: When the demand rises, prices rise. The health care deform bill has added, we are told, about 30 million folks to the health care system. That addition shoots demand for goods and services sky high, and that, in turn, drives prices way up. Also on day one of Econ 101, you learn that when the supply of a thing goes down, prices go up. By cutting back doctors' pay for some services by 21%, the deform bill will drive lots of folks out of medical care into professions where they can make a much better living and won't have to spend all those expensive years in medical school just to be economically suppressed later by government. Fewer doctors means you've driven down the supply of medical care, which in turn means you've driven up the cost -- again. Add to that double increase the incredible costs associated with funding and operating the burgeoning bureaucracy that oversees this fiasco, and you've made health care in America enormously more expensive. Well done, Dems. Maybe "hope" and "change" mean that BO "hopes" the laws of economics can be suspended at will or, if not, he can just "change" them, perhaps by one more meaningless executive order. (By the way, when the supply of thing goes down far enough, not only do you pay more, you facing rationing. What happened at the gas pump under government supervised price controls earlier will happen now at the hospital and the pharmacy. And that, to quote our eloquent Vice President, is a big f*****g deal.)
Or, if you like, consider Massachusetts, where, as of this moment, the average wait to see a doctor is somewhere between 41 and 48 days, and where the costs of this ridiculous program are nowhere near being met. Indeed, Massachusetts is reeling under the weight of its folly. The real world just won't support the delusions you think are facts.
This was ignorant, counter-productive, horrific and (for the pre-born and elderly) life-ending legislation.
Posted by Michael Bauman | March 24, 2010 2:55 PM
Speaking only for myself here, I did the other day in a previous thread. I don't recall you giving my points about tax credits to the middle and upper class the time of day.
I have no doubt "your side" would establish a single payer system. Your side doesn't know it's ass from a hole in the ground on economics. If it did, the only time we'd see socialists and communists is in "Cold War reenactments" in the Warsaw Pact.
If it weren't illegal to bet online, I'd bet $50 right now that within 10 years of Obamacare being in effect, the costs of health care and insurance will be crippling. See, here's the thing. You're increasing demand (adding ~30m new people) without increasing the supply.
With the way "your side" rants about how decreasing oil supplies will drive up costs and about how intelligent it is compared to us mouth-breathing rightists, one would think your side would have the mental faculties to abstractly reason that the same rules that apply to oil apply to health care.
Posted by Mike T | March 24, 2010 3:07 PM
"Speaking only for myself here, I did the other day in a previous thread. I don't recall you giving my points about tax credits to the middle and upper class the time of day."
Actually Mike I did, you must have missed it. Your prescription is to depend on the kindness of strangers and bankruptcy. I find that unsatisfying.
Posted by al | March 24, 2010 3:12 PM
Lydia,
It doesn't follow that because the government establishes a new tax or new fine they shouldn't be able to set additional qualifications on when it applies. I don't know enough about tax law to say if fines cannot be mingled with income taxes, but that is a separate question than whether or not some groups are exempt from specific taxes or fines.
Posted by Step2 | March 24, 2010 3:13 PM
Step2, that's not the point. The point is that this _is_ a fine and not a tax. And Congress is never given the power to fine you for _failure_ to purchase health insurance. The folks trying to defend the constitutionality of this are trying to do so by saying that it's not a fine, it's a tax. That's a lot of hooey. It's a fine, a penalty, for not doing what Congress is dictating that you do, which power Congress does not have as one of its enumerated powers. The fact that people below a certain income level do not actually have to pay the fine does not change the fact that they, too, are covered by the new legislation. They are just kindly being exempted from actually paying the fine for failure to comply. But it's still a requirement that people do something which Congress has no power to require people to do.
Posted by Lydia | March 24, 2010 3:38 PM
Al you said "So far the only answer you have provided is that it is better to die than have the government involved. That may not satisfy many."
Here's a few Articles with Answers and Soultions
http://mises.org/freemarket_detail.aspx?control=279
http://blog.mises.org/10883/why-health-insurance/
Here's some articles explaining some of the Problems and how they arose.
http://mises.org/article.aspx?Id=1616
http://mises.org/article.aspx?Id=1749
http://stefanmikarlsson.blogspot.com/2007/07/myths-fact-about-american-health-care.html
http://mises.org/daily/3727
Posted by The Phantom Blogger | March 24, 2010 3:39 PM
Suppose that the federal government set up a requirement that everyone belong to a gym and go and exercise in a documented manner for at least a half hour at least three times a week.
This is coming.
Posted by William Luse | March 24, 2010 3:58 PM
Posted by Zippy | March 24, 2010 4:02 PM
Hey Lydia!
What do you think of Charles Krauthammer's claim that Obama's next step will be to push to institute a national sales tax in the mold of European nations that have socialized medicine? He seems to think that this is the plan on how to offset the cots all along given that a $0.01 sales tax per dollar would raise tremendous revenue in addition to our existing and rising income taxes.
Posted by Jay Watts | March 24, 2010 4:08 PM
I posted a comment, and it said thank you for your comment wait as we check with the Administrator and my comment with links has not come up yet. But in the mean time others have posted comments. Whats Going On?
Posted by The Phantom Blogger | March 24, 2010 4:35 PM
We automatically hold comments in moderation if they exceed a certain number of links and authors/admins review on their own schedule. Other comments which are not automatically held will be published.
Posted by Todd McKimmey | March 24, 2010 4:44 PM
This is really becoming clear to all except the committed. There are no good reasons why the government, state and federal, shouldn't have a regulatory role in insurance and lots of reasons why it should.
Let us observe what has occurred. I asked what was the problem with the federal government setting a level playing field with health insurance. I even provided some help by mentioning the current role that the government plays with the supplemental Medicare insurance market. That is, we have a body of law and a body of ACTUAL experience with the government doing this. What do we get? We get an off the wall hypothetical that is totally off point.
Ok, the Congress has broad powers when it comes to taxation. Congress already compels us to buy insurance - social Security and Medicare which collections for which are also part of the tax code. It is annoying to hear conservatives moan and wail about folks being compelled to purchase insurance from private companies and also moan and wail about the government setting standards which the logic of the former implies. If we lefties had our way, we would simply have single payer which would become part of the payroll tax and that would be that and it would also be constitutional. You conservatives are upset about a situation that conservatives created.
As for the gym. The analogy is off. Correctly stated we might ask if one may be compelled to have regular medical checkups, i.e. use ones insurance. It is well established in the common law and under the Constitution that one may refuse medical treatment. We may safely assume that that right extends to our present hypothetical and that any law that made such a requirement would violate well established liberty interests.
I will ask again. We already are required to purchase insurance under SS and Medicare. The government extensively regulates private insurance purchased as supplemental to Medicare. We have real world experience here. Given that real world experience, what is the problem with extending reasonable regulation to the rest of the health insurance industry as corollary to mandating individual coverage? To which of the rules do you object and why?
Posted by al | March 24, 2010 4:48 PM
Will it be posted? All the links were from free websites I don't thing theres copyright infringement or anything like that.
It contains a Reply to Al and his statements.
Posted by The Phantom Blogger | March 24, 2010 4:51 PM
I published it. It's not that we fear violating copyright, it's just a necessary measure to deal with the vast volumes of comment spam we get. It appears in the order it would have appeared had it been published immediately.
Posted by Todd | March 24, 2010 4:56 PM
Cute.
I'd respect your position more if you'd just admit that this is a de facto property tax on the bodies of citizens and you support that because you think it is a good thing.
As someone else said on another blog, America now has a cover charge. Pretty soon there will be a two drink minimum.
Posted by Zippy | March 24, 2010 4:59 PM
"Well, it is "meaningless" other than the fact that "a property tax on the body of citizens" accurately describes the substance of the matter"
Sorry Zippy, there is no way around this one. The use of the word "property" in the context of the original statement can only have one meaning. It was clearly a reference to slavery and a black president. That the tax code has an individual standard deduction and a dependent deduction as well as deductions for age and certain physical limitations doesn't render the bodies of the persons involved property - no one to my knowledge has ever asserted that. "A property tax on the body of citizens" is novel, awkward and totally useless absent the obviously intended racial connotations.
Posted by al | March 24, 2010 5:00 PM
Posted by Zippy | March 24, 2010 5:02 PM
I linked to a few articles back there but they were posted late and the debate went on, but they might be of interest in this conversation.
Posted by The Phantom Blogger | March 24, 2010 5:06 PM
Al wields a pretty purple pen to be so quick to accuse anyone, least of all Zippy, who's not above some rhetoric designed to hit a pressure point, of malice and ill-will. Knock it off with the taunting.
Posted by Paul J Cella | March 24, 2010 5:52 PM
Your declarations of rhetorical victory over the hopelessly backward conservatives are becoming tiresome. Argue your points, and quit telling us how right you are.
Posted by Matt Weber | March 24, 2010 6:18 PM
Doesn't Article I, section 9, clause 4 require all direct taxes (which I presume this would be) to be laid in proportion to population, as determined by the decennial census?
Posted by Seamus | March 24, 2010 6:45 PM
Lydia,
Let me generalize your statement to see if it still makes sense. Congress is never given the power to fine you for failure to perform act Y, except when listed among its enumerated powers. But there are books upon books of federal regulations that can result in fines, covering many areas of workplace and public safety, environmental protection, banking laws, etc. that applies to individuals and corporations.
Posted by Step2 | March 24, 2010 7:18 PM
It is certainly true, Step2, that the doctrine of enumerated powers has taken a beating over the past sixty years. As you well know, the commerce clause has been the main vehicle for this vast expansion of federal powers. Usually Congress says that it regulates this business, bank, etc., because its commercial activity "affects" interstate commerce. I think all of this is dreadful and ridiculous. I said from the beginnning of the thread that I hold no brief for it.
But the present law breaks new ground in that all you have to do is _exist_ and by that very act are subject to a demanded action by Congress--namely, that you possess mandatory minimum health insurance. The fact that no penalty is assessed for certain classes of people is, as one might say, an act of grace. What is being waived in their case is a penalty for a failure to do what Congress is now asserting the right to demand that everyone do. With this act, the very concept of a government of enumerated powers goes out the window. Congress can tell everyone who simply exists here to do something and declare that this falls under its power to tax, or its power to regulate interstate commerce, or what-have-you, and that's it. As the article said (cannily, I thought): absent some _other_ constitutional limit on a given act of Congress, Congress's powers are now officially unlimited. That is to say, the concept of enumerated powers is not _in itself_ any sort of limit on federal Congressional power.
You and Al, Step2, don't seem to get this. Not only do you not get the "breaking new ground" point, you also don't get the point that the concept of enumerated powers was supposed to be _by itself_ a limit on government power. Notice, for example, that Al attempts to respond to my hypothetical first by simply throwing out the hypothetical, by talking instead about being required to have medical checkups, then by saying that this couldn't be required because "liberty interests" (i.e., past precedents interpreting the 14th amendment) would prevent it. This _totally misses the point_ of the hypothetical, which concerned (what the post is about) the notion of a government of enumerated powers as some sort of _independent_ limit on governmental power. Obviously, Al doesn't care tuppence about that notion or that limit.
Posted by Lydia | March 24, 2010 8:29 PM
"Al wields a pretty purple pen to be so quick to accuse anyone, least of all Zippy, who's not above some rhetoric designed to hit a pressure point, of malice and ill-will. Knock it off with the taunting."
??? What have i missed? Zippy is insisting on the aptness of Dr. Beckwith's property analogy and I am disagreeing. My analogy is directly on point. Each of us gets a standard deduction and an individual deduction because we exist. I challenge anyone to show us any prior use of the concept of tax policy based on capitation as indicative of making persons property.
"This _totally misses the point_ of the hypothetical, which concerned (what the post is about) the notion of a government of enumerated powers as some sort of _independent_ limit on governmental power. Obviously, Al doesn't care tuppence about that notion or that limit."
I understand the concept of limits. I was merely pointing out that there is no limit where you want one and you picked a hypothetical that would be a non-starter for well established
reasons. There is no constitutional limit to the Congress doing that to which you wish there was such a limit. There is nothing new here. You are making far too much out of language necessary to making the tax operational.
I am a patient person, so here we go again. You assert, "But the present law breaks new ground in that all you have to do is _exist_ and by that very act are subject to a demanded action by Congress--namely, that you possess mandatory minimum health insurance."
I will now post what the law actually says,
"`(a) Requirement To Maintain Minimum Essential Coverage- An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."
Note that it doesn't say "each" or "every", it says"applicable", that is it applies to some and not to others and then spells out who it applies to and who is exempt. How else would you write a law?
Nothing new, the law already every applicable person participate in Medicare and Social Security.
Posted by al | March 24, 2010 11:34 PM
Posted by Zippy | March 25, 2010 12:16 AM
"You conservatives are upset about a situation that conservatives created."
"That is pretty rich."
No abdication, just a statement of fact. had we gone to single payer this would be part of the payroll tax and that would be that. Compelling a major roll for the insurance companies compels a clunky solution. I'll own it but pretending conservative values didn't make things worse is a fiction.
Seamus, we also have this,
Amendment XVI
"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration."
Posted by al | March 25, 2010 12:23 AM
Whatever happened to the Party of Death's elevation of choice - the right to do what I want with my own body - to a divine principle? It's shocking to imagine, I know, but I don't think they were sincere.
Posted by William Luse | March 25, 2010 1:48 AM
Terribly shocking, Bill.
It's like liberals and the Blessed Open Society where Free Speech reigns and all questions are open questions: never suppose the liberals are actually sincere about it.
Al, the purple prose remark was not to the substance of the question between you and Zippy on taxation. It was to the comically buffoonish way you stamped your foot in your comment of March 24, 2010 at 12:45 PM.
Posted by Paul J Cella | March 25, 2010 5:06 AM
I went back to the thread and couldn't find any response. Perhaps you could provide a link.
Your prescription is to rely on coercion. I find that unsatisfying. See, when someone just blithely dismisses your comment without justifying their own position (that would be you, justifying why it is a moral duty so great that I have to help pay for every schmuck's health care) it's not quite so... satisfying... is it?
Of course, your "response" ignores several important features of my proposal which make it workable:
1) It provides a workable framework for extended family members to take care of their own kin instead of relying on the social safety net.
2) It provides a powerful incentive for strangers to not only pay for the health care of indigent patients, but for those strangers to get involved with providers and demand things like price transparency and consistency.
Posted by Mike T | March 25, 2010 6:15 AM
Lookee here, folks, Al has had an epiphany... Let's all chip in and buy him a dictionary so he can look up one of them high school-level, moooooltaysyllabic words, "irony."
No one else would think that the federal income tax, rather than local property taxes, is a valid comparison.
It could be **just me**, but I would **think** (don't hold me to this, it's just my opinion...) that if you wanted to debunk the idea that the HCR bill is like a federal property tax, you'd compare it to a **local property tax** instead of an **income tax**...
Posted by Mike T | March 25, 2010 6:23 AM
For the record, Mike, I am favorably disposed toward that idea.
Posted by Paul J Cella | March 25, 2010 6:24 AM
As should anyone whose true purpose is a genuine public good, rather than an ideological remaking of society. Tax credits would enable private citizens to personally shoulder a great percentage of that public good which would make the remaining welfare net more resilient. The very fact that Al won't even acknowledge that they could play a valuable role is telling.
I think one of the dangers here is that the mostly middle class political left won't even acknowledge the fact that there are four classes: upper, middle, lower and under. The line between the last two can be blurry at times, but anyone who's grown up in the South (and parts of the North) at least knows that there are actually four classes.
The underclass simply cannot be given a promise of universal coverage because it will abuse it every time. Well, it could be given that cost-effectively, but the left doesn't have the stomach to strong-arm the underclass the way that would be necessary to make it work. One of which would be to give the federal government the same powers the British NHS is starting to assume to dictate everything from diet, to intoxicating substance use, to exercise in those patients on the threat of having the prerogative to deny care.
Posted by Mike T | March 25, 2010 7:20 AM
This is a good take on why universal health care in any form will not be good for liberty in this country: http://pajamasmedia.com/zombie/2010/03/20/why-america-hates-universal-health-care-the-real-reason/
Posted by Mike T | March 25, 2010 7:23 AM
Al confirms what I said to the effect that he has no clue about the importance of enumerated powers as an _independent limit_ to government power. It was a foundational principle of this country, and it will be a sad day when it goes out the window altogether, completely dead. Al doesn't care. I get that. But Al, you shouldn't pretend that such a concept was never there in the first place.
I find this rather amusing:
That must be the "penalty" and "you have to get minimum health insurance coverage" language. You know. The stuff that doesn't look remotely like an income tax.
Posted by Lydia | March 25, 2010 9:12 AM
Well surely it is obvious that the Constitution is not capable of enforcing itself, and if the government wishes to ignore it then it is possible that it could do so, and therefore that the government currently does something is no guarantee of legality.
But as long as we all agree that the penalty for not buying health insurance is indeed a penalty, and not, as some have goofily suggested, a tax, then that's fine. The Constitutional question then centers on the legality of the mandate, not the legality of a tax. I have little confidence that the government will get the right answer, but they should at least ask the right question.
Posted by Matt Weber | March 25, 2010 9:40 AM
Which brings to mind the great hypocrisy of religious discussions of political legitimacy. Those with the power can act as they see fit until some cleric finally declares their actions to be a violation of God's law. Until then, they can [edited LM--Mike, sorry, but that language went a bit too far for my thread] everything from their political constitution, to natural law, to basic decency and the public must meekly accept it rather than cheerfully and boldly ignore any order which is contrary to those things.
Posted by Mike T | March 25, 2010 9:52 AM
I usually just lurk here trying to learn and I rarely write anything. However, I'd be interested in learning just what in The Constitution can be appealed to by those, like my own self, who were opposed to this Bill.
Earlier, I noted the 14th Amendment which, as I understand it, means the Government can pretty much do any damn thing it wills.
For instance,because of its implacable and inexorable force,White Fathers and Mothers were ordered to bus their children long distances to satisfy some racial delusion held by egalitarian collectivists so this new Health Care Bill can easily find shelter under that most elastic of Constitutional Mantles.
As I understand it, the 14th Amendment (for now ignoring the execrable process that resulted in its extra-legal, and invalid, adoption) has simply blown-up essentially all of the mechanisms we Catholic Conservatives (subsidiarity anyone?)were taught to admire.
IOW, of what use is it to appeal to separated this and enumerated that seeing as how the 14Th Amendment has destroyed all of that?
So, since the 14th Amendment is part of The Constitution, and it can not be ignored, what is there existing in The Constitution that can,legally, trump the chump's bill?
As an aside, I just got back from Venice where, touring the Palazzo Ducale, I found myself, walking through the Ponte dei Sospiri, (Bridge of Sighs) beginning to think - just what'h'hell is so great about Democracy?
I know that a Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, Old Man Bush, Bill Clinton, Fredo Bush, or Barack Obama would never have been become a Doge.
Posted by I am not Spartacus | March 25, 2010 4:13 PM
IANS, sure, the 14th amendment interpretation has been bad. (Though weirdly, it may in the end be one of the only things standing between us and Big Brother.) The specific example you give applied to state schools and the supposed state discrimination of de facto racial segregation. I hold no brief for that decision. (And no, I'm not cowed by allegations that anyone who has problems with the Brown decision is a racist.) But it's really quite different. If you are any sort of a con-law geek, you will realize that ordering busing by state schools is not in any way like ordering private individuals to have health insurance.
The principle that is supposed to protect us is (don't laugh) found in the 10th Amendment. And it was also a cherished idea of the founding: That the federal government needed its powers to be _given_ to it, that it could not simply arrogate power to itself by fiat. In a sense, the very existence of every clause of the Constitution authorizing Congress to do this and to do that is the place where this protection is found, for no such authorizations would be needed if the federal government were authorized prima facie to do anything it dam' well pleased absent constitutional _prohibitions_.
Posted by Lydia | March 25, 2010 4:20 PM
Ah, St. Mark's Square is beautiful indeed.
Posted by Zippy | March 25, 2010 4:28 PM
"Al confirms what I said to the effect that he has no clue about the importance of enumerated powers as an _independent limit_ to government power. It was a foundational principle of this country..."
"The principle that is supposed to protect us is (don't laugh) found in the 10th Amendment. And it was also a cherished idea of the founding: That the federal government needed its powers to be _given_ to it, that it could not simply arrogate power to itself by fiat."
============================================
"From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment."
A. MAGNANO CO. v. HAMILTON, 292 U.S. 40 (1934)
===========================================
"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.
Even the 10th Amendment,
Even the 10th Amendment,
Even the 10th Amendment,
which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people," thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments."
MCCULLOCH V. MARYLAND, 17 U. S. 316 (1819)
"Section 8. Clause 1. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."
I understand the concept of enumerated powers, however I prefer not to philosophize in a vacuum. It should count for something that the folks who founded the nation found the concept of enumerated powers popular with some posters to be unwise and unworkable.
Posted by al | March 25, 2010 7:58 PM
Meaning that the 10th amendment has no meaning whatsoever, nor does the express delegation of powers to the Congress through the Constitution, which really wasn't needed, they could have just made it up as they went along, and that would have been perfectly constitutional. And the folks who founded the country put the 10th amendment in there to decorate the parchment, because the federal government can do anything it dam' well pleases absent some prohibition elsewhere in the Constitution. Got it.
Posted by Lydia | March 25, 2010 8:12 PM
Tell me, Al: Is there anything that, if Congress passed a law requiring or mandating it, you could on your principles say was unconstitutional _because_ it does not fall under Congress's enumerated powers? Not for some other reason, but just for that reason. Anything? Remember: They can pass a penalty for failure to do it, waiving it for those who have no or low income, and someone defending them can call that a tax.
Posted by Lydia | March 25, 2010 8:17 PM
"Al, the purple prose remark was not to the substance of the question between you and Zippy on taxation. It was to the comically buffoonish way you stamped your foot in your comment of March 24, 2010 at 12:45 PM."
Apologies, I sometimes take the admittedly idiosyncratic notion that we are all entitled to our own opinions but not to our own facts way too seriously.
Posted by al | March 25, 2010 9:50 PM
"Tell me, Al: Is there anything that, if Congress passed a law requiring or mandating it, you could on your principles say was unconstitutional _because_ it does not fall under Congress's enumerated powers"
Off the top of my head, I consider Commerce Clause justification in certain private matters to exceed the scope of that clause (gonzales v. Raich and the controlled substances act).
The problem with relying on enumerated powers as a brake is the very nature of governing as Justice Marshall pointed out. EP as a strategy just won't cut it. We have done better with the Bill of Rights and the three Reconstruction Amendments even with atrocities like Cruikshank. We will do better yet when Privileges or Immunities and Equal Protection through the 14th Amendment gets restored to their rightful place.
Posted by al | March 25, 2010 10:23 PM
Does that mean that you think those acts of Congress are unconstitutional _just because of_ enumerated powers, or not? What if they had been enforced in other ways, such as by a fine collected by the IRS? Would you then have an enumerated powers complaint against them, or would they be able to be defended as a "tax" on your principles?
Posted by Lydia | March 26, 2010 8:48 AM
Dear Lydia. Thank you. And while I am in agreement with you, especially on the 10th Amendment (which Bork pronounced a dead letter)I don't see one thing in The Constitution stopping this because the 14th Amendment, as least as far as I can tell, rendered the 9th and 10th Amendments nugatory.
I will go back to lurking as y'all are much more knowledgeable than am I
Posted by I am not Spartacus | March 27, 2010 7:20 AM
Ah, St. Mark's Square is beautiful indeed.
Dear Zippy. It is fantastic. And after seeing it I have now come to think of my hero, Dr. John Zmirak, as the San Marcos of Catholic Letters because his rhetoric is as unique and striking in the Catholic West as is San Marcos.
That Basilica is wildly romantic and gorgeous. What a treasure.
Posted by I am not Spartacus | March 27, 2010 7:24 AM
Yes. Congress could tax hemp and did although circumstances created a Fifth Amendment issue.
http://opinionator.blogs.nytimes.com/2010/03/25/which-side-of-history/#more-43475
Much, if not all, of the EP talk coming from the political class is partisan posturing anyway. Mandates have been part of the conservative/libertarian/Republican universe for years and constitutionality wasn't part of the discussion then. This morning on ABC a Republican hack (Noonan, I think) started blathering about Wyden/Bennett as the way things might should have gone. The moderator reminded us that WB also had a mandate.
Anyway, the more I think about the enumerated powers thing the less I think of it as a governing concept. On the one hand constitutions are useful to extend that they are difficult to amend, on the other it is impossible anticipate the future. As presidents starting with at least Jefferson had to deal this, I am inclined to believe that necessity requires a broad interpretation of "general welfare" and "commerce".
Posted by al | March 28, 2010 2:46 PM
We agree that you think little of it as a governing concept. That is a big difference between us, y'see. I see it as an essential part of constituting nature of the American Republic and as a bulwark against tyranny. So much, I'm afraid, for the American Republic.
Posted by Lydia | March 28, 2010 3:46 PM
This may be of interest:
http://roomfordebate.blogs.nytimes.com/2010/03/28/is-the-health-care-law-unconstitutional/
"...I see it as an essential part of constituting nature of the American Republic and as a bulwark against tyranny..."
That may have been the idea, but history has shown that, as with the Senate, the Founders were not perfect. While the feds aren't perfect, tyranny, corruption, state sponsored terrorism, and plain mal-governance have mostly been the province of our state and local governments. They did what was necessary to form the Union; we have the advantage of a historical perspective - we should use it.
The Feds have more often than not erred in being too restrained (ending Reconstruction too early and not prosecuting for treason and executing most of the Confederate government and the entire Confederate Army and Navy officer core) and simple misjudgment (Grant appointing reactionaries to the Supreme Court).
Posted by al | March 29, 2010 4:39 PM
Oops, s/b corps
Posted by al | March 29, 2010 6:19 PM
You're a dangerous man. Thanks for reminding us where we're headed so long as your pals are running things.
Posted by Jeff Culbreath | March 29, 2010 6:42 PM
Striking, that list, isn't it?
Posted by Lydia | March 29, 2010 7:45 PM
Two of the comments are slam dunks but the middle one was me just thinking. After all, the Brits hanged Lord Haw Haw and all he did was do some radio broadcasts and we fried the Rosenbergs and, in the end, no one died from their spying. Confederate treason, which was basically over six million seeking to preserve their right to own three million or so, resulted in the deaths of over 600,000 and a national shonda that lasted over a century.
Posted by al | March 30, 2010 1:28 PM
The US Constitution defines treason in such a way that would prevent them from being prosecuted for treason. It would be legally nonsensical to even try it because you would have to first recognize the CSA as a legitimate foreign government, then declare that everyone who fought for it was not only not one of its citizens, but an American citizen.
That would legally make the CSA the first legitimate foreign government with no citizens...
Posted by Mike T | March 30, 2010 2:30 PM
I stand corrected on that. I hadn't read the treason statute for a while and didn't remember that it simply says "levying war against the US or adhering to its enemies."
Even still, it would have been disastrous for the union to have attempted that as it would have likely caused a violent resurgence in the south and severely (possibly permanently) damaged the US military's respect for civilian authority.
Posted by Mike T | March 30, 2010 2:36 PM
Arguments like this make me think that Franco and Pinochet were truly wise men in how they treated the left in their countries...
Posted by Mike T | March 30, 2010 2:42 PM
Not according to the Supreme Court.
"The government of the Confederate states can receive no aid from this course of reasoning. It had no existence except as a conspiracy to overthrow lawful authority. Its foundation was treason against the existing federal government. Its single purpose, so long as it lasted, was to make that treason successful. So far from being necessary to the
Page 87 U. S. 465
organization of civil government, or to its maintenance and support, it was inimical to social order, destructive to the best interests of society, and its primary object was to overthrow the government on which these so largely depended. Its existence and temporary power were an enormous evil which the whole force of the government and the people of the United States was engaged for years in destroying."
Sprott v. United States, 87 U.S. 20 Wall. 459 459 (1874)
Posted by al | March 30, 2010 3:03 PM
The British would have said the same thing about the United States if the British won our war for independence. Victors always say such things when their boot is firmly on the neck of the vanquished which is why no intelligent person puts much stock in their words on such things.
Posted by Mike T | March 30, 2010 3:24 PM
And the British would have hanged the Continental Congress and at least the general staff of the Continental Army. What is your point?
Posted by al | March 30, 2010 3:39 PM
All,
This is a nice quick discussion of federalism, supporting Lydia of course:
http://nlt.ashbrook.org/2010/03/red-states-abide.php
I should also note, despite the fact that I'm a Union man myself, both Lincoln and Grant believed very strongly in reconciliation with their former enemies. There is something grand and noble about the meeting between Grant and Lee at Appomattox and to deny the dignity and honor of the Southern cause is to deny their very humanity. Shame on you "al".
Posted by Jeff Singer | March 30, 2010 4:14 PM