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Politics : A US National Health Care System? -- Ignore unavailable to you. Want to Upgrade?

To: Lane3 who wrote (12748)	12/26/2009 12:36:11 PM
From: Peter Dierks	1 Recommendation Read Replies (1) \| Respond to of 42652

David Frum is a cheerleader for liberalism. His opinion is hardly one that adds to the debate.

To: Lane3 who wrote (12748)	12/26/2009 12:36:21 PM
From: i-node	Read Replies (1) \| Respond to of 42652

The federal government already requires every American to purchase health insurance. That's what Medicare does. The difference now is that everyone will be required to buy a private plan to cover them up to age 65 in addition to the government-run plan they are compelled to buy to cover them after 65. I don’t hear anyone in Congress suggesting that Medicare violates the Constitution. So how can the new plan be unconstitutional if the old plan is OK? This is the left-wing argument made by a David Brooks liberal. But it is as wrong as it can be. This argument was made by CJ on another thread WRT Medicaid. Medicare and Medicaid lack basic elements of insurance. And Frum essentially admits this here: the courts have consistently held that the general welfare clause of the Constitution empowers Congress to create social welfare plans based on compulsory contribution. It is a social welfare plan, not insurance and so, intuitively, Frum's second argument ought to be a better fit: Since the challenges to Social Security were rejected by the Supreme Court in 1937, the courts have consistently held that the general welfare clause of the Constitution empowers Congress to create social welfare plans based on compulsory contribution. (Helvering v. Davis is the most relevant case.) The problem with Frum's claim is that the challenge in Davis was on the question of whether the government has the right to TAX people (and corporations) for the purpose of a social welfare plan. It is well established that the "general welfare" clause permits this. The question at hand would appear to be something totally different -- i.e., can Congress require persons to PURCHASE "health insurance". Is that a social welfare plan? I don't think requiring people to purchase health insurance is the same thing as taxing people to provide Medicare for them. It may look similar on the surface. But Medicare isn't insurance. And taxing people isn't the same as requiring them to purchase something. CBO, in '94, said as much: "When the Congressional Budget Office considered the idea of a health insurance mandate back in 1994 under the Clinton administration, it concluded that the mandate would be 'an unprecedented form of federal action.'" I wouldn't be surprised if the Court decides not to get involved on this basis (or if it does), and I haven't any doubt there will be constitutional challenges to the final bill. I think Frum's argument is weak. But there are plenty of issues on which the legislation can be challenged. I think they'll take the "Nebraska Compromise" out before it is done -- and Nelson will still vote for it. He doesn't seem to have the willingness to fight for this, and there are certainly a number of state's AGs who believe an Equal Protection challenge is called for.

To: Lane3 who wrote (12748)	12/26/2009 12:42:16 PM
From: longnshort	Read Replies (1) \| Respond to of 42652

gee next thing you will tell us is that ted kennedy's wife is for this Bill

To: Lane3 who wrote (12748)	1/2/2010 1:56:25 AM
From: Peter Dierks	3 Recommendations Read Replies (1) \| Respond to of 42652

Why the Health-Care Bills Are Unconstitutional If the government can mandate the purchase of insurance, it can do anything. JANUARY 2, 2010. By ORRIN G. HATCH, J. KENNETH BLACKWELL AND KENNETH A. KLUKOWSKI President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects. First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce. Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned. In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do. Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending. A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation. A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government. This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do. The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance. This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation. America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality. Mr. Hatch, a Republican senator from Utah, is a former chairman of the Senate Judiciary Committee. Mr. Blackwell is a senior fellow with the Family Research Council and a professor at Liberty University School of Law. Mr. Klukowski is a fellow and senior legal analyst with the American Civil Rights Union. online.wsj.com