Mike wrote:
news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

There is little doubt mandatory health insurance is Constitutional under
existing precedent.  Those who believe it ought not be constitutional
want SCOTUS to reverse precedent.

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

On Oct 31, 8:29 am, Josh Rosenbluth <jrosenbl... at (no spam) gotcha.comcast.net
wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

There is little doubt mandatory health insurance is Constitutional under
existing precedent. Those who believe it ought not be constitutional
want SCOTUS to reverse precedent.


So what? Precedent has been reversed several times before...and I've
already pointed out Justice Kennedy's "take" via the Commerce Clause.
(I'd post his quote again for this NG's readers but you'd complain
about "repetition, eh? ROTFLMHO)

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

There is little doubt mandatory health insurance is Constitutional under
existing precedent. ...

Josh Rosenbluth wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."


There is little doubt mandatory health insurance is Constitutional
under existing precedent. ...


What precedent?

Info Junkie wrote:

On Oct 31, 8:29 am, Josh Rosenbluth <jrosenbl... at (no spam) gotcha.comcast.net
wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

There is little doubt mandatory health insurance is Constitutional under
existing precedent. Those who believe it ought not be constitutional
want SCOTUS to reverse precedent.


So what? Precedent has been reversed several times before...and I've
already pointed out Justice Kennedy's "take" via the Commerce Clause.
(I'd post his quote again for this NG's readers but you'd complain
about "repetition, eh? ROTFLMHO)

Merely referring to a previously made point, rather than a long-winded
repetition is progress (so too would getting rid of snarky remarks like
"eh" and "ROTFLMHO").

On the substance of Kennedy's remarks - wasn't he defending Stare
decisis, and in particular as it relates to the Commerce Clause?

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

There is little doubt mandatory health insurance is Constitutional under
existing precedent. Those who believe it ought not be constitutional
want SCOTUS to reverse precedent.

Josh Rosenbluth

Josh Rosenbluth wrote:

Info Junkie wrote:


On Oct 31, 8:29 am, Josh Rosenbluth <jrosenbl... at (no spam) gotcha.comcast.net
wrote:


Mike wrote:


news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."

There is little doubt mandatory health insurance is Constitutional under
existing precedent. Those who believe it ought not be constitutional
want SCOTUS to reverse precedent.


So what? Precedent has been reversed several times before...and I've
already pointed out Justice Kennedy's "take" via the Commerce Clause.
(I'd post his quote again for this NG's readers but you'd complain
about "repetition, eh? ROTFLMHO)

Merely referring to a previously made point, rather than a long-winded
repetition is progress (so too would getting rid of snarky remarks like
"eh" and "ROTFLMHO").


Your style-over-substance fallacy

is irrelevent to your near obsession
that the Court use precedent over constitutional principles as found
in the words of the FFs/framners/state ratifiers or even the American
Jurisprudence volumes.

Precedent has been overturned before and one never knows if the
Court's members decide to "grow-a-pair" and rule according to
constitutional principles.

(To make you happy...this one time...I
won't re-post all of theose quotes. Lol)

On the substance of Kennedy's remarks - wasn't he defending Stare
decisis, and in particular as it relates to the Commerce Clause?


Exactly my point Mr Rosenbluth. Justice Kennedy's remarks are a good
example that shows the Court's (so far) have abandoned their oaths of
office. Through the doctrine of stare decisis (your preference), the
Court's have relegated themselves to little more than (a minimum of) 5
individuals that use their personal bias to cut-n-paste their
rulings.

Well, this will be interesting. I look forward to watching
Socialists

Peter Franks wrote:

Josh Rosenbluth wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."


There is little doubt mandatory health insurance is Constitutional
under existing precedent. ...


What precedent?

Raich. Congress may regulate non-commerce when it has a rational basis
for believing such regulation is necessary for a broader regulation of
commerce (in this instance, the broader regulations on insurance
companies).

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."



There is little doubt mandatory health insurance is Constitutional
under existing precedent. ...



What precedent?


Raich. Congress may regulate non-commerce when it has a rational
basis for believing such regulation is necessary for a broader
regulation of commerce (in this instance, the broader regulations on
insurance companies).


But we aren't talking about the regulation of insurance companies, we
are talking about mandating the citizens to participate.

But we aren't talking about the regulation of insurance companies, we
are talking about mandating the citizens to participate.

Peter Franks wrote:

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical
insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer, but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it. It's
been on all the legal blogs," said Michael Cannon, director of
health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the
foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to
Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive
reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus
Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several
decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring
all to
participate," writes Jonathan H. Adler, law professor at Case Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite [constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of Health
and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."



There is little doubt mandatory health insurance is Constitutional
under existing precedent. ...



What precedent?


Raich. Congress may regulate non-commerce when it has a rational
basis for believing such regulation is necessary for a broader
regulation of commerce (in this instance, the broader regulations on
insurance companies).


But we aren't talking about the regulation of insurance companies, we
are talking about mandating the citizens to participate.

Congress may regulate non-commerce (mandating citizens to participate)
when it has a rational basis for believing such regulation is necessary
for a broader regulation of commerce (requiring insurance companies to
drop pre-existing condition clauses).

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Peter Franks wrote:

Josh Rosenbluth wrote:

Mike wrote:

news.google.com

Constitutionality of health overhaul questioned

Donald Lambro

On top of all the other obstacles facing President Obama in his
quest
to pass health reform is this one: Does the U.S. Constitution allow
the government to require uninsured Americans to buy medical
insurance
or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or
service, but that is what both House and Senate health bills would
mandate.

While this debate has been overshadowed by other issues involving
the
plan's nearly $1 trillion cost and its government-run option, the
constitutional argument strikes at a pivotal part of the health care
plan's finances. To make a government-run health care plan work, the
nation's largely uninsured young adults would need to be covered to
help subsidize medical care for older and typically less-healthy
Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she
was asked by a reporter if the Democrats' health reform proposal was
constitutional.

"Are you serious? Are you serious?" Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could
not
be ignored.

"I'm not a lawyer, and I'm certainly not a constitutional lawyer,
but
I think it's wrong to mandate that the American people have to do
anything," he told reporters at his own press briefing last week.

The question of the mandate's constitutionality "hasn't been part of
the public debate, but the legal community has been debating it.
It's
been on all the legal blogs," said Michael Cannon, director of
health-
policy studies at the libertarian Cato Institute. He said "the
Constitution does not grant Congress the power to force Americans to
purchase health insurance."

In 1994, the nonpartisan Congressional Budget Office noted that 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," the CBO
said. The statement was part of an analysis of then-President
Clinton's ill-fated health care reform plan, which also required
that
all Americans purchase health insurance plans.

The Constitution gives Congress the power "to regulate commerce ...
among the several states" - a clause that has served as the
foundation
for broad economic regulatory and taxing powers claimed by the
legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center,
asks, "Where in the [Constitution] is the power to mandate that
individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely
intrastate activity" beyond the regulatory sway of the federal
government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an
Aug. 22 column in The Washington Post that Congress has no
constitutional power to tell people what they must buy.

"The Constitution assigns only limited, enumerated powers to
Congress,
and none, including the power to regulate interstate commerce or to
impose taxes, would support a federal mandate requiring anyone
who is
otherwise without health insurance to buy it," they said.

But other legal scholars say that the Supreme Court has in recent
decades taken a much broader view of Congress' commerce powers and
would likely do the same in this case if the legislation's
mandate is
challenged in court.

"I would be willing to wager with Professor Barnett that the Supreme
Court would uphold such a mandate, given the court's expansive
reading
of the Commerce Clause. In fact, I don't think the vote would be
close," Washington and Lee University professor Timothy Stoltzfus
Jost
said.

Even some conservative legal analysts who oppose the health care
reform think that in the end, if the legislation passes, Congress
would win in the courts.

"In this case, the overall scheme would involve the regulation of
'commerce' as the Supreme Court has defined it for several
decades, as
it would involve the regulation of health care markets. And the
success of such a regulatory scheme would depend upon requiring
all to
participate," writes Jonathan H. Adler, law professor at Case
Western
Reserve University School of Law.

House Majority Leader Steny H. Hoyer of Maryland was asked at a news
conference recently whether Congress had "the power to mandate that
somebody buy health insurance." He replied: "Promoting the general
welfare in the Constitution obviously gives broad authority to
Congress to effect that end. Clearly, this is within our
constitutional responsibility."

The Senate Finance Committee, which recently approved one of the
Senate's two main health care bills, "thoroughly explored the issue
and believes that the policies put forward in our bill will fall
within" the constitutional powers of Congress, a top aide said.

But the excise tax that would be imposed on anyone who did not
purchase insurance and its enforcement "would invite
[constitutional]
scrutiny," said a paper presented to the Federalist Society for Law
and Public Policy Studies by Peter Urbanowicz, a lawyer and health
care management consultant, and Dennis G. Smith, senior research
fellow in health care reform at the Heritage Foundation.

They cited Columbia University health policy professor Sherry Glied,
named by Mr. Obama to a top policy job in the Department of
Health and
Human Services, who warned that "developing a system to promptly
identify and penalize scofflaws will take effort and ingenuity,
particularly in our diverse and mobile country."

"It may require a degree of intrusiveness and bureaucracy that some
will find unpalatable."




There is little doubt mandatory health insurance is Constitutional
under existing precedent. ...




What precedent?



Raich. Congress may regulate non-commerce when it has a rational
basis for believing such regulation is necessary for a broader
regulation of commerce (in this instance, the broader regulations on
insurance companies).



But we aren't talking about the regulation of insurance companies, we
are talking about mandating the citizens to participate.


Congress may regulate non-commerce (mandating citizens to participate)
when it has a rational basis for believing such regulation is
necessary for a broader regulation of commerce (requiring insurance
companies to drop pre-existing condition clauses).



You have distilled Article I, Section 8, Clause 3 into: Congress shall
have power.