Josh Rosenbluth wrote:
Peter Franks wrote:

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.

Nope.  For example, you couldn't mandate that everyone wakes up before 9
AM because there is no rational basis that is necessary for a broader,
permissible regulation of commerce.

Sure you could, and it has been done: Daylight Savings Time.

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).

Peter Franks wrote:

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.

Nope. For example, you couldn't mandate that everyone wakes up before 9
AM because there is no rational basis that is necessary for a broader,
permissible regulation of commerce.

cpt banjo wrote:
On Nov 1, 6:59 pm, Josh Rosenbluth <jrosenbl... at (no spam) gotcha.comcast.net
wrote:

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).

I fail to see how mandating people to buy health insurance is
necessary to enable Congress to regulate the terms of insurance
policies.  If the power to regulate policy terms is included in the
power to regulate commerce, why couldn't Congress just simply declare
pre-existing clauses invalid?

Or is the "rational basis" that because the insurers would go broke if
such clauses were eliminated, the government needs to require everyone
to buy health policies to subsidize the insurance companies so they
won't go broke?

You got it.

Raich is distinguishable: there, the law made it a criminal offense to
do something (possess drugs).  The proposed health care provision
would make it an offense punishable by a fine (let's not kid ourselves
-- it's a fine, not a tax) to fail to do something.

 From Raich:

"Wickard thus establishes that Congress can regulate purely intrastate
activity that is not itself “commercial,” in that it is not produced for
sale, if it concludes that failure to regulate that class of activity
would undercut the regulation of the interstate market in that commodity."

Of course the Court can make the distinction you suggest, but nothing in
Raich's logic supports it.

Josh Rosenbluth- Hide quoted text -

- Show quoted text -

On Nov 1, 6:59 pm, Josh Rosenbluth <jrosenbl... at (no spam) gotcha.comcast.net
wrote:


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).


I fail to see how mandating people to buy health insurance is
necessary to enable Congress to regulate the terms of insurance
policies. If the power to regulate policy terms is included in the
power to regulate commerce, why couldn't Congress just simply declare
pre-existing clauses invalid?

Or is the "rational basis" that because the insurers would go broke if
such clauses were eliminated, the government needs to require everyone
to buy health policies to subsidize the insurance companies so they
won't go broke?

Raich is distinguishable: there, the law made it a criminal offense to
do something (possess drugs). The proposed health care provision
would make it an offense punishable by a fine (let's not kid ourselves
-- it's a fine, not a tax) to fail to do something.

On Tue, 3 Nov 2009 20:30:53 -0800 (PST), cpt banjo

cptba... at (no spam) aol.com> wrote:
Since this would be the first time in our history where the federal
government tells its citizens that they must buy something or face a
fine, I think the Court might very well make such a distinction to
invalidate such an idiotic law.

What law is that?

Isn't the government telling people they must buy Car
insurance the same?

Or requiring immunizations for passports and travel, or
a host of other things?

Is health insurance commerce?

Since this would be the first time in our history where the federal
government tells its citizens that they must buy something or face a
fine, I think the Court might very well make such a distinction to
invalidate such an idiotic law.

On Nov 3, 4:32 pm, Peter Franks <n... at (no spam) none.com> wrote:
Josh Rosenbluth wrote:
Peter Franks wrote:
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.
Nope. For example, you couldn't mandate that everyone wakes up before 9
AM because there is no rational basis that is necessary for a broader,
permissible regulation of commerce.
Sure you could, and it has been done: Daylight Savings Time.

DST is a suggestion, not a mandate. Some states do not observe it.

On Nov 4, 7:27 am, smor... at (no spam) board.com wrote:
On Tue, 3 Nov 2009 20:30:53 -0800 (PST), cpt banjo

cptba... at (no spam) aol.com> wrote:
Since this would be the first time in our history where the federal
government tells its citizens that they must buy something or face a
fine, I think the Court might very well make such a distinction to
invalidate such an idiotic law.
What law is that?

Isn't the government telling people they must buy Car
insurance the same?

Or requiring immunizations for passports and travel, or
a host of other things?

I can avoid buying car insurance by not driving. ...

cpt banjo wrote:
On Nov 1, 6:59 pm, Josh Rosenbluth <jrosenbl... at (no spam) gotcha.comcast.net
wrote:


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).


I fail to see how mandating people to buy health insurance is
necessary to enable Congress to regulate the terms of insurance
policies. If the power to regulate policy terms is included in the
power to regulate commerce, why couldn't Congress just simply declare
pre-existing clauses invalid?

Or is the "rational basis" that because the insurers would go broke if
such clauses were eliminated, the government needs to require everyone
to buy health policies to subsidize the insurance companies so they
won't go broke?

You got it.

Raich is distinguishable: there, the law made it a criminal offense to
do something (possess drugs). The proposed health care provision
would make it an offense punishable by a fine (let's not kid ourselves
-- it's a fine, not a tax) to fail to do something.

From Raich:

"Wickard thus establishes that Congress can regulate purely intrastate
activity that is not itself “commercial,” in that it is not produced for
sale, if it concludes that failure to regulate that class of activity
would undercut the regulation of the interstate market in that commodity."

Or requiring immunizations for passports and travel, or
a host of other things?

I can avoid buying car insurance by not driving

On Nov 4, 9:57 am, Peter Franks <n... at (no spam) none.com> wrote:
Is health insurance commerce?

Of course it is.

cpt banjo wrote:
On Nov 4, 9:57 am, Peter Franks <n... at (no spam) none.com> wrote:
Is health insurance commerce?

Of course it is.

Really? How?  Please explain.

Josh Rosenbluth wrote:

On Nov 3, 4:32 pm, Peter Franks <n... at (no spam) none.com> wrote:

Josh Rosenbluth wrote:

Peter Franks wrote:

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.

Nope. For example, you couldn't mandate that everyone wakes up
before 9
AM because there is no rational basis that is necessary for a broader,
permissible regulation of commerce.

Sure you could, and it has been done: Daylight Savings Time.


Corr: Daylight Saving Time

DST is a suggestion, not a mandate. Some states do not observe it.


Wrong*, but that doesn't matter. The point has been shown, the feds
assume the power and have exercised it.

* From the bastion of propaganda: "The U.S. federal Uniform Time Act
became law on April 13, 1966 and it *mandated* that DST begin
nationwide..." (emphasis added).
http://en.wikipedia.org/wiki/History_of_time_in_the_United_States#DST_1966