Check out the latest wackiness by "Sideshow Bob" Marshall. Believe it or not, this time Marshall's proposing a "healthcare freedom" constitutional amendment based on his belief that "it is unconstitutional for the government to mandate, at risk of penalty, that all individuals have insurance or that companies provide insurance for employees, as contemplated in bills being considered by the U.S. House and Senate." Anyway, I'm not a lawyer, but I know plenty of good ones. The following is one excellent attorney's response to Bob Marshall's "healthcare freedom" amendment idea.---The alleged claim about "duress" is bogus. "Duress" is a private contract law doctrine developed to deal with instances of grossly unequal bargaining power between two private parties--like a big credit company and an impoverished borrower. When any level of government passes a law that requires people to do things that some of them would prefer not to do, that is not "duress" as defined by this private contract law doctrine.Over at the Constitutional Law Prof Blog, they also believe that Marshall has no leg to stand on, based on two major arguments: 1) "an individual mandate is almost certainly the kind of economic activity that the Court would uphold under Congress's Commerce Clause authority under Raich, Lopez, and United States v. Morrison;" and 2) "Congress can adopt an excise tax to an end that is within its other constitutional powers...[but] even if Congress is acting outside its other articulated powers, the Court has interpreted the Taxing Power quite broadly, all but eliminating any distinction between a "penalty" and revenue-producing 'tax.'"
---Any federal healthcare legislation will present issues completely different from the issues involved with the VA transportation authority. The authority was state legislation that the Virginia Supreme Ct found to violate the Virginia Constitution, but under a long line of U.S. Supreme Court cases, no state can abrogate any federal constitutional right by putting something in that state's constitution that says that something that is permitted under the federal constitution is barred by the state constitution.
---I could go on, but this is political grandstanding by Bob Marshall that is not much different from George Wallace standing in the "school house door" for the photo op, and then stepping aside when the feds arrived.
Finally, check out Media Matters' "Legal experts debunk conservative media's claim that health reform proposals are unconstitutional," including one constitutional expert's analysis that "[u]nder an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce."
Unfortunately, logic and legal precedent may not prevail in Virginia. Instead, now that Ken Kookinelli's going to be in the AG's office and Pat Robertson's Manchurian Candidate's going to be in the governor's mansion, Bob Marshall will have plenty of fellow right-wing ideologue fellow travelers who will be sympathetic to his views. Nope, this is not going to be a fun four years -- unless, that is, you like watching sideshows, freak shows, and ultimately, train wrecks.
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Lowell:
ReplyDeleteBob is only resurrecting all the crackpot southern constitutional theories manufactured from the 1820s through the 1930s.
John Calhoun would have been proud to know that his successors in the modern GOP will be resurrecting every supposed barrier to federal legislation under the commerce clause from his fancy -- but rejected -- theories of interposition to nullification to secession.
of course the SCOTUS isnt going to stop aything in this bill --it hasnt upheld an economic right of defied Congress iny any signifigant manner regarding interstate comerce since the new deal. However, constitutionality aside, this is something rather new in the history of federal power -- for the first time outside of a military draft, the Congress will have mandated that individuals do something as a condidition of simply existing. Ever other requirment is a condidition of some other action taken. This opens up a new precident for much further uses of this power.
ReplyDeleteHere is what the problem is. There are a certain number of young, healthy voters who do not have health care coverage and who do not desire a mandate forcing them to obtain such coverage.
ReplyDeleteI would argue that a certain number of them are going to suffer from debilitating diseases or accidents that force them to become wards of the state. Because of this risk, they too should pay up. But that is not how they see it. They see themselves as young and healthy and why should a health coverage mandate interfere with their ability to afford that sports car?
Just an observation and an explanation why some people are going to vote against our desire for universal health care coverage.
It's funny, because when I was a young woman in my 20's, I did not have health insurance. Nor did my husband most of the time. Nor did most of our friends. And I don't remember strutting around thinking that I did not need health insurance, or that I was never going to need it.
ReplyDeleteWhat I did remember was being afraid of a simple accident such as falling down the stairs. What I do remember is worrying that if I got pregnant (a good thing usually, in my view of the world) that I could bankrupt my family and not be in a position to provide for my child. What I do remember is wondering if I would be lucky enough to get to a point where I would stop worrying about these things.
I was lucky. But many of my friends were not. They are still, in ways big and small, paying for lack of health care in their 20's. And no one I knew drove a sports car.
LD,
ReplyDeletethe mandate has less to do with a need to get people into the pool that currently chose not to be in it than it does with dealing with the adverse selection problem that will occur with the community rating component and removing the ability to deny coverage based on pre existing conditions. In states that have these two polices in place, the relatively young and healthy have to pay far more in insurance premiums than what their risk is, so many just dont buy insurance. It's one of the reasons why NY and MA have astronomically high individual premium rates (a cheap individual plan in NY is hundreds a month... in VA you can get plans for under $100)... because all of these young and healthy people have left the pool. The mandate is a way to place a stealth tax on low risk people in order to pay for higher risk people. This is easier than actually levying a tax and then using it to subsidize those of high risk, because this way they don't have to call it a tax that would hit the middle class and therefore be politically harmful.
I wonder if LD and EBJ understand that the whole concept of insurance -- public or private -- is sharing the risk over a period of time. I guess that concept is OK because it is a voluntary stealth tax.
ReplyDeleteIt is regrettable that intelligence and libertarianism do not normally share a single brain!