11th Circuit calls Obamacare UNCONSTITUTIONAL

Josh_R

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http://reason.com/blog/2011/08/12/appeals-court-strikes-down-oba

Peter Suderman | August 12, 2011

No, Congress can't just decree that individuals must buy a private product, even if the market has unique properties. To do so would be more than unprecedented; it would be an unconstitutional overreach. That's the gist of what an 11th Circuit appeals court said today when it ruled in favor of 26 state governments by saying that the federal requirement to purchase health insurance contained in last year's health care overhaul is unconstitutional. From the ruling:

The individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision.

However, the panel, made up of two Democratic appointees and one GOP-appointed judge, did overturn lower court Judge Roger Vinson's decision to invalidate the entire law, preferring to strike only the mandate and related provisions.

More on previous decisions for and against the mandate here and here.
 

Party Rooster

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#2
To do so would be more than unprecedented; it would be an unconstitutional overreach
It's not exactly "unprecedented." :action-sm

Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798

Jan. 17 2011 - 9:08 pm | 102,613 views | 3 recommendations | 233 comments
By RICK UNGAR



The ink was barely dry on the PPACA when the first of many lawsuits to block the mandated health insurance provisions of the law was filed in a Florida District Court.

The pleadings, in part, read -

The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.

State of Florida, et al. vs. HHS

It turns out, the Founding Fathers would beg to disagree.

In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.

And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.

Here’s how it happened.

During the early years of our union, the nation’s leaders realized that foreign trade would be essential to the young country’s ability to create a viable economy. To make it work, they relied on the nation’s private merchant ships – and the sailors that made them go – to be the instruments of this trade.

The problem was that a merchant mariner’s job was a difficult and dangerous undertaking in those days. Sailors were constantly hurting themselves, picking up weird tropical diseases, etc.

The troublesome reductions in manpower caused by back strains, twisted ankles and strange diseases often left a ship’s captain without enough sailors to get underway – a problem both bad for business and a strain on the nation’s economy.

But those were the days when members of Congress still used their collective heads to solve problems – not create them.

Realizing that a healthy maritime workforce was essential to the ability of our private merchant ships to engage in foreign trade, Congress and the President resolved to do something about it.

Enter “An Act for The Relief of Sick and Disabled Seamen”.

I encourage you to read the law as, in those days, legislation was short, to the point and fairly easy to understand.

The law did a number of fascinating things.

First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.


This is pretty much how it works today in the European nations that conduct socialized medical programs for its citizens – although 1% of wages doesn’t quite cut it any longer.

The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services. Upon passage of the law, ships were no longer permitted to sail in and out of our ports if the health care tax had not been collected by the ship owners and paid over to the government – thus the creation of the first payroll tax in our nation’s history.

When a sick or injured sailor needed medical assistance, the government would confirm that his payments had been collected and turned over by his employer and would then give the sailor a voucher entitling him to admission to the hospital where he would be treated for whatever ailed him.

While a few of the healthcare facilities accepting the government voucher were privately operated, the majority of the treatment was given out at the federal maritime hospitals that were built and operated by the government in the nation’s largest ports.

As the nation grew and expanded, the system was also expanded to cover sailors working the private vessels sailing the Mississippi and Ohio rivers.

The program eventually became the Public Health Service, a government operated health service that exists to this day under the supervision of the Surgeon General.


So much for the claim that “The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty….”

As for Congress’ understanding of the limits of the Constitution at the time the Act was passed, it is worth noting that Thomas Jefferson was the President of the Senate during the 5th Congress while Jonathan Dayton, the youngest man to sign the United States Constitution, was the Speaker of the House.

While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.

Yes, the law at that time required only merchant sailors to purchase health care coverage. Thus, one could argue that nobody was forcing anyone to become a merchant sailor and, therefore, they were not required to purchase health care coverage unless they chose to pursue a career at sea.

However, this is no different than what we are looking at today.

Each of us has the option to turn down employment that would require us to purchase private health insurance under the health care reform law.

Would that be practical? Of course not – just as it would have been impractical for a man seeking employment as a merchant sailor in 1798 to turn down a job on a ship because he would be required by law to purchase health care coverage.

What’s more, a constitutional challenge to the legality of mandated health care cannot exist based on the number of people who are required to purchase the coverage – it must necessarily be based on whether any American can be so required.

Clearly, the nation’s founders serving in the 5th Congress, and there were many of them, believed that mandated health insurance coverage was permitted within the limits established by our Constitution.


The moral to the story is that the political right-wing has to stop pretending they have the blessings of the Founding Fathers as their excuse to oppose whatever this president has to offer.

History makes it abundantly clear that they do not.

UPDATE: January 21- Given the conversation and controversy this piece has engendered, Greg Sargent over at The Washington Post put the piece to the test. You might be interested in what Greg discovered in his article, “Newsflash: Founders favored government run health care.”

http://mediamatters.org/blog/2010121500043747.html
 

Neon

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That looks like a law for a specific profession, partycock. That is hardly the same as saying everyone has to buy it.
 

Party Rooster

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That looks like a law for a specific profession, partycock. That is hardly the same as saying everyone has to buy it.
I realize that, the article even points that out. But to say the government mandating people to buy insurance is not unprecedented is wrong too. Other than farming, I'd say being a merchant marine was a pretty huge employment sector at the time.
 

CousinDave

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Want to make more people buy medical insurance?

Make it a crime for any doctor, nurse, EMT, hospital, etc... to treat anyone for any condition who does not have insurance, you'll be shocked at how many people who claim they can't afford medical insurance are suddenly able to do so.
 

BIV

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Want to make more people buy medical insurance?

Make it a crime for any doctor, nurse, EMT, hospital, etc... to treat anyone for any condition who does not have insurance, you'll be shocked at how many people who claim they can't afford medical insurance are suddenly able to do so.
You are a cocksucker. I WANT medical insurance. There is no fucking way I could afford it.
 

LiddyRules

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Want to make more people buy medical insurance?

Make it a crime for any doctor, nurse, EMT, hospital, etc... to treat anyone for any condition who does not have insurance, you'll be shocked at how many people who claim they can't afford medical insurance are suddenly able to do so.
Or they just won't go to doctors. Plus you get the added benefit of medical professionals suffering from the guilt of wanting to save someone's life but not being allowed to do so for some reason.

Hypothetically, say there was a bus accident. Should the ER go through everyone's wallets and purses and laptop cases to make sure they have insurance before treating them, or let everyone die?
 

Josh_R

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Want to make more people buy medical insurance?

Make it a crime for any doctor, nurse, EMT, hospital, etc... to treat anyone for any condition who does not have insurance, you'll be shocked at how many people who claim they can't afford medical insurance are suddenly able to do so.
This is foolish. You cannot bar someone from treating a patient. This would be just as, if not more, unconstitutional that mandating health insurance.


It's not exactly "unprecedented." :action-sm
Just because they did it early in the country's history doesn't mean it wasn't wrong then too. Let's not forget that the guy who wrote "all men are created equally, and that they are endowed by their creator with certain unalienable rights..." was a slave owner. They wrote great rules, they just didn't follow them either.
 

CousinDave

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Hypothetically, say there was a bus accident. Should the ER go through everyone's wallets and purses and laptop cases to make sure they have insurance before treating them, or let everyone die?

Didn't you see the episode of the Sopranos where the hospital told Tony they checked to see if he was insured before the ambulance brought him in, if he didn't have insurance they would have taken him to Martin Luther King jr Memorial Hospital.
 

CousinDave

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This is foolish. You cannot bar someone from treating a patient. This would be just as, if not more, unconstitutional that mandating health insurance.

I just said this would be a way to make more people buy insurance, I didn't address any moral or legal issues.
 

LiddyRules

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Didn't you see the episode of the Sopranos where the hospital told Tony they checked to see if he was insured before the ambulance brought him in, if he didn't have insurance they would have taken him to Martin Luther King jr Memorial Hospital.
I'm sure I did, I don't really remember every detail. Was he involved in a bus crash or was he the sole injured? Besides, under your scheme, if he didn't have his card with him, they would have just left him on the street.

I just said this would be a way to make more people buy insurance, I didn't address any moral or legal issues.
What if they have no insurance but a lot of cash?
 

CousinDave

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#12
You are a cocksucker. I WANT medical insurance. There is no fucking way I could afford it.

I bet you could, you'd just have to change your lifestyle, something you obviously don't want to do.

$30 will buy more than enough beans and rice to feed you for a month - that alone will save you a few hundred every month which can be used to buy medical insurance
 

Josh_R

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#13
What if they have no insurance but a lot of cash?
This is one of the main things that piss me off about this mandate. They just assume that everyone will eventually use the healthcare system at some point. They also just assume that no one can afford to pay cash for it when they eventually do use healthcare services. It makes no fucking sense to make a law saying Bill Gates has to buy health insurance, like he can't afford to pay the $500 bill for an emergency room visit.
 

CousinDave

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I'm sure I did, I don't really remember every detail. Was he involved in a bus crash or was he the sole injured? Besides, under your scheme, if he didn't have his card with him, they would have just left him on the street.
Well if you're on a city bus, you'll have to go to the black hospital anyway. If you're on a tour bus or charter bus, you'll probably get to go to the white hospital.

I think it was called a "Wallet Biopsy"

Its incentive enough to always have your proof of insurance with you.


What if they have no insurance but a lot of cash?
Same thing that happens now, they'll take you to MLK Memorial then when you prove your insured they'll transfer you to the good hospital.
 

CousinDave

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This is one of the main things that piss me off about this mandate. They just assume that everyone will eventually use the healthcare system at some point. They also just assume that no one can afford to pay cash for it when they eventually do use healthcare services. It makes no fucking sense to make a law saying Bill Gates has to buy health insurance, like he can't afford to pay the $500 bill for an emergency room visit.


What emergency room are you going to that's only $500 ?
 

Josh_R

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What emergency room are you going to that's only $500 ?
Oh literal Cousin Dave.
The number didn't matter, the point was that Bill Gates could buy the whole fucking hospital, but he has to buy insurance instead.
 

Party Rooster

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Just because they did it early in the country's history doesn't mean it wasn't wrong then too.
That's kind of the point. You're saying it's wrong now and comparing it to slavery is a lousy emotion-based argument. And I was more arguing the "precedent" of it, which the author was flat out wrong when he said this:

No, Congress can't just decree that individuals must buy a private product, even if the market has unique properties. To do so would be more than unprecedented
People like bringing up the WWTFFD argument all the time and they were all still alive and very active in government at the time when they mandated a huge sector of the economy with "unique properties" to make sure its employees had health insurance.

Didn't you see the episode of the Sopranos where the hospital told Tony they checked to see if he was insured before the ambulance brought him in, if he didn't have insurance they would have taken him to Martin Luther King jr Memorial Hospital.
So you're resorting to Kirk levels of arguments now?

This is one of the main things that piss me off about this mandate. They just assume that everyone will eventually use the healthcare system at some point. They also just assume that no one can afford to pay cash for it when they eventually do use healthcare services. It makes no fucking sense to make a law saying Bill Gates has to buy health insurance, like he can't afford to pay the $500 bill for an emergency room visit.
The law would not apply to Bill Gates. I'm pretty sure he already has health insurance.
 

LiddyRules

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I bet you could, you'd just have to change your lifestyle, something you obviously don't want to do.

$30 will buy more than enough beans and rice to feed you for a month - that alone will save you a few hundred every month which can be used to buy medical insurance
I assume you're being silly, but let me pose this question seriously. After how many months of living exclusively on beans and rice, would death seem like the better option?
 

CousinDave

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Oh literal Cousin Dave.
The number didn't matter, the point was that Bill Gates could buy the whole fucking hospital, but he has to buy insurance instead.

I know, the whole system is fucked up.

My father was a suregon and he had no idea how to fix things, his last few years, he spent more time having to do paper work than he did doing surgery or teaching.

The gov't just makes it worse though, anytime power is taken from the doctors and patients and given to bureaucrats, administrators, etc... it just fucks it up even more.
 

CousinDave

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#20
I assume you're being silly, but let me pose this question seriously. After how many months of living exclusively on beans and rice, would death seem like the better option?

Well every couple of weeks you might be able to get an onion, a can of Spam, or even some cornbread!
 

LiddyRules

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Well every couple of weeks you might be able to get an onion, a can of Spam, or even some cornbread!
An onion?! Look at Mr. Bill Gates over here!
 

Josh_R

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#23
That's kind of the point. You're saying it's wrong now and comparing it to slavery is a lousy emotion-based argument.
No, no, I wasn't comparing this to slavery at all. I was saying that if the Founding Fathers were able to overlook that little inconsistency called slavery, then it's not that surprising that they didn't follow their own rules regarding interstate commerce.
On the subject of interstate commerce, I see this maritime insurance thing (which I admit I had never heard of until now) as a condition of engaging in interstate commerce. There is nothing wrong (legally, not in my personal opinion) with the government telling interstate truck drivers that they must have auto insurance as a condition of their employment as a truck driver. They are engaged in interstate commerce, and as such the government can regulate their conduct.

Being a human who is born in the United States is not interstate commerce. Even going to the hospital is not interstate commerce. Even buying insurance is not interstate commerce, because you could conceivably buy insurance from a small, local company that only serves people within that state or county.

So, I think it is still unprecedented to force the purchase of a product as a condition of being alive, rather than as a condition of participating in commerce.
 

Josh_R

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#24
I assume you're being silly, but let me pose this question seriously. After how many months of living exclusively on beans and rice, would death seem like the better option?
After about the 10th time you farted under the covers and it wafted up in your face.
 

Party Rooster

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#25
I'm impressed. I never thought I'd see someone successfully connect with a "But John Adams...!" :icon_cool
:)

Being a human who is born in the United States is not interstate commerce. Even going to the hospital is not interstate commerce. Even buying insurance is not interstate commerce, because you could conceivably buy insurance from a small, local company that only serves people within that state or county.

So, I think it is still unprecedented to force the purchase of a product as a condition of being alive, rather than as a condition of participating in commerce.
I'm sure the lawyers/politicians will somehow try and tie it to some sort of obscure interstate commerce condition.