The way to pull the splinter before it gets infected is scrub the individual mandate out of the bill and extend the House pay or play employer mandate to go directly into employee accounts if they are signed up for a plan. That would be more effective policy and less painful politics down the road as well.

I made the observation the other day that the mandate would eventually be challenged as being Unconstitutional. If the government says you have to purchase insurance and there is nothing to stop the insurance company from denying coverage is is basically taxation without representation or where I come from, extortion.

ensign? The guy who had an affair while married with a staff member’s wife and then had his own parents pay the cuckhold hush money?

can we remind him of how this comports with the high requirements to hold office?

extortion

Precisely!! but but a distinct lack of the peoples language???
I say Fuck NO! No Fucking Mandate to Corporate America giving them the “Peoples” hard earned cash in basically forced TAXES!!

Ensign and Hatch are playing to their base. This is absolutely antithetical to the anti-Government forces in the Republican party. Of course, now also playing to Obama’s base.

If anything will unite Progressives and the so-called tea-baggers, a lawsuit challenging Mandates will be it!

I think some smart Senate Dems should file a lawsuit on this issue and steal it from the Tea baggers. Sen John Ensign and Orrin Hatch might be using this for political advantage we need someone to use it to kill the bill for the good of the people now.

It is NOT unconstitutional law, it is just shitty law. And fucking Baucus citing a bunch of “law professors” is typically asinine.

You may be wrong.

In Kelo vs New London, the Supremes ruled that a taking private property and giving the property to a private party could be for the common good.

In HCR, private property = speech, taking = mandate, giving to private party = Health Insurance Co, common good = spreading risk among all citizens.

It has been a loooong time since i took Con Law but what I find disturbing are the sanctions—it’s one thing to “mandate” purchase of private insurance but quite another to enforce it through the authority and offices of the IRS.

Haven’t read the bill closely on this score, though.

Irony of Ironies.
They’d both be all for such a mandate if they weren’t so concerned with stickin’ it to teh librulz.
Well, now the GOP is on the record opposing the Individual Mandate. Overall, I think I can live with that. With that and the delaying of this POS bill, they seem to be doing the right thing for the wrong reasons. If they want to cut off their noses to spite their faces, it’s, well, it’s no skin off my nose!

FunnyWheelieDiva

There’s no enforcement written into the bill. Apparently you can simply not pay the penalty and IRS cannot do anything.

The sanction could be punishment for placing other citizens at risk: If one does not contibute money to the risk pool, they are one’s fellow citizens are damaged?

Dream on. The IRS has enforcement. I’d bet the IRS will use it.

The language of the bill, unless changed in conference, make the penalty voluntary.

You are mandated to provide insurance company CEOs with bonus pay but if you refuse, you are supposed to pay a 2% tax on your income in penalties BUT the bill’s language forbids any retribution is you don’t pay the tax. They cannot seize your house, your car, garnish you wages, nothing. So, the obvious answer here is to refuse to pay the minimum 8% tribute to insurance company CEOs AND refuse to pay the 2% penalty. They cannot do anything to you if you refuse.

Civil disobedience here. That and voting OUT of office any and all Dems that vote FOR the bill.

Not if the language that prohibits the IRS from doing anything stays in the bill.

No. The bill explicitly forbids all the normal means of IRS enforcement. They cannot do much of anything but send a stern letter.

FUCK the IRS.

Big “if”.

That’s pretty interesting. A toothless mandate, then?

I am healthy. I do not need nor want jackboot-enforced insurance. I will NOT pay tribute to Aetna or Wellpoint or any other criminal syndicate. I also will NOT pay the tax penalty. Fuck the government, fuck the insurance companies, fuck Obama, fuck the Democraps.

No mandate.

I will NOT obey.

Mess up your credit?

I agree with most here, the mandate must go. The person who penned it is obviously on the healthcare insurance company payroll.
Can we get past the partisan bickering on this one? If Jane is unsuccessful at killing this bill, the removal of the mandate would make it a bit more palatable for those who are on the fence about it. Also, with it’s removal, the bill can be tentatively called reform.
Now if the Stupak and Nelson language were removed, it would be a better bill to improve upon, like so many have been saying.
As far as Ensign, it’s a desperation move, because he’s all but gone next election cycle, but the right one.

They’re forbidden from filing leins. Don’t know if there are other ways the IRS can mess up your credit.

Heh. Debt free. Fuck my credit.

The Constitution? that old rag?
I thought we threw that away 8 or 9 years ago.

Typically it takes a lien. However, creditors can file “lates” against an account and hurt your credit. The IRS could do the same.

Thanks.

I suspect there will be a lot of civil disobedience, regardless.

I would also point out that it is not just that “Ensign and Hatch didn’t secure a legal opinion” from the Supreme Court on this, they legally could NOT get such an opinion in the first place. Article III has been consistently interpreted to demand a case a controversy which unequivocally prohibits advisory opinions. Secondly, irrespective of whatever happy horsemanure is being contemplated on the Senate floor Wednesday, Congress CANNOT “vote on the Constitutionality” of the healthcare bill, or anything else for that matter; Constitutionality is a determination that can only be made by the Supreme Court in the context of, again, a proper case and controversy.

The individual mandate is unconstitutional under section 1 of ammendment 13,involuntary servitude. Every minute I spend coming up with the money to pay these insurance punks is involuntary if it’s mandated. As for Gonzales v. Raich, the only interstate commerce I’ve interfered with (if I grow cannabis in my yard and bring it in my house and smoke it) is illegal interstate commerce (trafficking in contraband). Now Monsanto can bribe congress to make it illegal for me to grow tomatoes in my yard and bring them in my house and eat them, which they have already started working on. I forget the name of the organic gardening law pending.

The individual mandate is a tax on a citizen’s labor which is unconstitutional. This is the argument the anti tax groups make, the courts have never given an opinion on the legality of taxes on a person’s labor.

bmaz, can you discuss my comment @8?

The difficulty here is not that a capitate tax would be Unconstitutional (the 16th Amendment basically says that is fine)…it’s whether the Government can require a payment to another private individual for simply being a Citizen. Thus this crosses over from the Federal Government “providing for the General Welfare” to a “taking” that benefits a private industry.

I do note that the Republicans haven’t even tried to delve into the legal aspects of this…so at this stage it’s simply a political manouevre….or “political Manure-Veer”.

This is complete bunk; the mandate has nothing to do with “involuntary servitude” and that argument would literally be prone to having sanctions imposed upon someone making it.

Right- they have no problem mandating that women be compelled to have children if they get pregnant…or lose their health care insurance coverage.

The court upheld using Emanate Domain for private businesses, so I wouldn’t hold my breath on this.

I’m wondering how they intend to prevent people without Insurance coverage from using the emergency rooms, then? What happens when the uninsured show up at the doors?

Yes, I think you (and Cinnamonape just below you) are looking at this in the way the Court would. Based upon the historical view of commerce clause interpretation and application by the court, although the justices may not much care for the mandate, it absolutely looks like it would pass muster so long as it is not a criminal penalty (it is not) and it would be seen as an exercise in the state providing regulation to promoite the health and safety of the populous.

Govt already mandates that everyone purchase health insurance — it just kicks in when you get to age 65. It routinely levies a mandatory payroll tax to collect revenues for every worker, which are then paid to private health care providers — doctors, hospitals — via Medicare. Adding a third party insurer creates a risk pool for averaging premiums, but it doesn’t change the underlying mandatory transaction from a constitutional standpoint.

The insurance you’re asked to purchase may be a “bad buy,” not worth it, etc, but conceptually, I don’t see anything legally new here.

Sounds more like a capitate tax…or an income tax…to me. It’s not based on how much you work. But it’s an odd sort of tax, since the funds are not going to the government, but to a private entity.

What worries me is how this intermingles Private Insurance Companies with your personal income information. How does an insurer learn about your families income and how much you earn? That private information would have to come from the IRS. Furthermore the insurers would have to notify the IRS that you are acting in accord with the law.

To some degree this requires looking into the laws relating to vehicle insurance and whether those were justified on the grounds that driving is a privilege, not a right. If this is the justification then the implication that everyone must have health care insurance…that this is universally compulsory, might have some merit.

And we have another winner! Exactly right.

Eminent Domain…!

You’re referring to this case… I assume…

The Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005) affirmed the authority of New London, Connecticut, to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. This 5-4 decision received heavy press coverage and inspired a public outcry that eminent domain powers were too broad.

Ironically…

The redevelopment in New London, the subject of the Kelo decision, proved to be a failure and as of the fall of 2009 (over four years after the court’s decision) nothing has been built on the taken land in spite of the expenditure of some $80 million in public funds. The Pfizer corporation, who would have been the primary beneficiary of the additional development, elected to close its New London research facility in November 2009

Personally I have no problem with the individual mandate, but I can’t help but see it as a massive lightning rod for future discontent. There will be lots of wailing and gnashing of teeth and even people who’s real healthcare costs have been reduced (see middle-class teabaggers re taxes) will have their rage over this perceived coercion broadcast continuously by the liberal media.

The wonks are saying we need any HCR to pass, or else the party suffers so we need to suck it up and pass this thing. I’d be happy to be proven hysterically wrong about this in the future, but this bill is so bad that I think it will doom Democrats for at least the next election cycle.

Hang on a minute about the IRS. Here’s what would happen:

-You would file a return
-The IRS will assess the penalty
-You don’t pay it
-It is still a tax liability

Next filing year rolls around:

-You either owe taxes or are owed a refund
-REFUND: The refund will be deducted by the amount of your previous penalty, just NO EXTRA PENALTY
-OWE: You pay your nominal tax bill and ignore the penalty. The IRS will apply the first part of your payment to the oldest IRS Liability. You have now short payed the current year return, and guess what? Penalties will apply to THAT balance.

You can repeat for a few filing cycles, but eventually, you’ll be in a world of IRS hurt.

Oh and I should say “universal, mandatory…..and payable through a private entity”. SSI and Medicare falls within the first two…but not the latter. Auto insurance is under the latter two…but not the former. You can opt out of driving.
Then there is the shared information/enforcement interface between private and public.

And that would be bad for the insurance giants, good for us, our children, our country hence the world, but it would NOT be good for the Democratic party and our pretty new president’s power and prestige and capacity to be an 8 year preznit, so I will fight it to my last breath! No challenging the individual mandates! No uniting with any sort of repuglicans, not if you put a gun to my head and my kids’ heads too! STOP STOP STOP! Give us this Senate bill, leave it alone, just pass it, and don’t you dare look back!

Mission Numero Uno: See to it that no uniting ever takes place between progressives and teabaggers for any reason, ever, no matter what. So help me God!

God dammit.

“The insurance you’re asked to purchase”

ASKED to purchase?

The very language we use guarantees their success and our defeat.

Really? Goody! This kinda changes everything, for me. No snark.

Me too. Debt free.

Crap

via oldfatguy and jamesjoyce:

http://fdlaction.firedoglake.com/2009/10/12/did-schumer-cause-the-ahip-freak-out/#comment-53671
http://fdlaction.firedoglake.com/2009/12/10/mike-stark-back-on-the-hill-for-fdl/#comment-67776

George Fountas vs. MA DOR COMM MA APPEALS DOCKET #2009-p-52

You’re saying that I could be sanctioned for making an argument? What if I’m supine? Oops! I thought this was feraldoglake. Sorry, wrong number.

Three points/questions:

1) I can’t believe I agree with Rivkin.

2) I’m no lawyer, but I have heard that the commerce clause can be used for just about anything.

3) Would it be constitutional for a law to mandate paying me, eblair, $1000 from every citizen?

3a) And we could say that the mandate is for my singing a song once a year.

On my reading of the language while the IRS cannot seek either interest or additional penalties it could seize the money by subtracting it from any refund you might be owed on your taxes or if you are due some sort of payment from a governmental agency block that payment.

Eli is upstairs!
Wanted: Fierce Advocate. Serious Inquiries Only.

Yes, the mandate is clearly very bad public policy that is going to kill the career of any legislator who supports it; and in my view it is also unconstitutional.

The real problem is that if there is only a single vote on the mandate, the issue will be seriously confused both in the House of Lords and among the general public. Wait for the Village serious people to confuse this complex matter up the wazoo.

But we definitely need some roll-call votes on this.

OK, folks, back to the automobile insurance. One is required to have automobile insurance because if you own a car, you might have an accident. Not that you will have an accident, but that you might. Why is that different from the health insurance mandate? Not because one needs medical care, but because one might need medical care. You have no insurance and you have a serious heart attack, you are going to cost the rest of us a great deal of money. So, I have no problem with the mandate. I have a problem with no public option, and indeed, we should have a single payer system. You are uninsured and you go to the ER, they are obligated to treat you. And again, the cost of that is borne by the rest of us. Incidentally, my high deductible BC/BS for myself and children is 18% of my gross income; my federal tax is 14%.

You may be oversimplifying the Kelo decision. Yes, it says a government can force a person to sell his/her property to another private party, where the government decides the sale would be for a public purpose.

However, a person isn’t forced to give the property away, and the sale must be for “fair market value.” I’d argue that forced “health insurance coverage” from the likes of Aetna and United Health and Blue Cross at the established rates does not constitute forcing you to give your money for “fair market value.” Junk insurance should be sold at bargain rates.

Doctors will ALWAYS accept cash.

If this goes to court it will be interesting to see how far. Supremes?

Eminent Domain has often served the purposes of private developers who’ve been paid off. Supremes voted for it several yrs ago, and I think incorrectly.

It’s a good law on its face but easily abused. Law needs to be refined
in order to prevent unfair seizure of personal property, which has occurred.

It was 5 to 4 decsion and deciding vote for upholding Eminent Domain was
republican Sandra Day Oconnor.

Sigh. You are NOT required to have auto insurance UNLESS YOU CHOOSE TO DRIVE.

You are NOT required to own/operate a car. This is NOT the same thing at all as the current atrocity.

If the democrats did not see the mandate being slammed in their face in every attack add coming before the 2010 and 2012 elections, then they they have egg yolks for brains.

You can make a case for the mandate when you have a very strong public option, but on it’s own is political suicide!

I think the most important point to make out of this is, that the rebels realize they can rally around the mandate and calling for this vote starts the ball rolling.

It absolutely is. If you are living, breathing, and walking around human being and you do not have health insurance, and you suffer a serious injury or illness, it is the rest of us who will foot the bill for your medical care, barring that you are independently wealthy. Tell you what, you care around with you a card stipulating that if in the case of illness or injury, you still decline medical care, even if the consequence is your death, well, than maybe you have a point. Except you actually don’t. Even if you carried such a card eshewing medical care, you collapse on the street from whatever malady, you are going to be transported to a hospital, where you will receive care, even if you don’t want it, and the rest of us will bear the cost.

So they are arguing that individual mandates amounts to a “taking” under the Fifth Amendment.

o person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Doesn’t look likely. Individually mandated premiums are not for public use. Looks pretty doubtful to me.

There probably are other legal grounds on which to oppose individual mandates, however.

Not clear what this has to do with constitutionality. Especially given the fact that some hospitals turn people away , none give you non emergency care without payment, and even for emergency care still send you a bill.

It isn’t the same really. Basically what you are saying is that you can be taxed for being alive. Automobile insurance is required of those who choose to own a car. If you don’t choose to own a car you don’t have to have it. Last time I checked we didn’t choose to be alive. Nor were we required to pay to private insurance companies for the right to be alive. It may or may not be a good policy. But it isn’t the same as automobile insurance.

I agree with you fully about the perversion of eminent domain law, which originally was for public “use,” and is now far more broadly allowed for anything that can pass muster as a public “purpose,” which means practically anything that is big enough. Thus, as you correctly point out, the big players can get their projects approved as being for a public “purpose.”

One quibble, though. David Souter may be seen as having provided the “5th” vote. All the liberals approved: Stevens, Ginsburg, and Breyer, plus centrists Souter and O’Connor.

Given that Alito has replaced O’Connor, Kelo might be differently decided if it were before the Court now.

The mandate is most certainly NOT constitutional. It’s not taxing and spending for the general welfare. It’s passing a law that requires every adult to give part of their income to private industry, and that has never been done before in the history of this country.

However that being said, my guess is that our corporation-loving Supreme Court will uphold it. After all, they also think that corporations are the same as a living, breathing, flesh and blood person.

Does it seem constitutional for the government to legalize age discrimination by allowing insurance companies to charge older Americans premiums that are 3 times as much as younger Americans pay? Does that part sound constitutional? But what the hey, taking away reproductive rights for women appears to be legal as well. Did I sleep through that bit where we elected a majority of Democrats? Who are these imposters??

Your being alive does not exist in a vacuum, unaffecting the rest of us. Oliver Wendall Holmes said, “Taxes are the price of civilization.” So, a tax on your being alive, why not? Unless you think mooching off the rest of us is the ethical and moral thing to do. Liberty is not freedom from our obligations. The Constitution establishes that we are all in this together, with concomitant obligations.

Which is why the public option is so essential.

As opposed to the senator who slept with a staff member, gave her a $14,000 raise and then nominated her for US Attorney?

Update: That other senator is also named in David’s post and it ain’t Orrin Hatch.

Umm, in a takings case, the government is obligated to reimburse you for the fair market value of property they take.

To analogize a mandate to a 5th Amendment takings case would mean that for every check you write the insurance company, the government would owe you a check for an identical amount. Now that’s a tax credit I could get behind. :o)

No the 16th Amendment allows for a tax on income “from whatever source derived”. It doesn’t address a direct capitation tax ( a “poll tax” as its sometimes called). If you want to pay less in taxes, then earn less in income. A capitation tax is payable regardless of how much you earn.

Article I of the Constitution says, “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers”. So direct taxes aren’t unconstitutional, as long they raise equal sums from each congressional district. I’m sure Mike Ross’s district in Arkansas is perfectly capable of coughing up the same amount of dough as Nancy Pelosi’s San Francisco district, but that would be a tough vote to justify. :o)

This bill could almost be palitable as a starting point if only the individual mandate were gone.

The notion of justifying this oligopolistic tyranny as taxation for the common good is absurd. This is what Ratigan refers to as corporate communism,which is better known as fascism.Conceptually,this is not the same as Medicare,which was designed as a government- administered service as opposed to being administered by a for-profit cartel of monopolists.What this is,conceptually,is a mob-style protection racket to be run by thugs who’ve repeatedly killed for profit.The idea of this ilk advancing civility and the public weal while having a fiducial obligation to maximize shareholder wealth is,conceptually,irreconcilable.

t

I think the constitutionality of the mandate will take some time to determine, and not just on the grounds that it will place a universal, unconditional requirement on American citizens to transfer property to private corporations. For example, if the IRS is designated as the enforcer of the mandate, misrepresentation of one’s insured status would constitute filing a fraudulent tax return, which is a felony. There are more legally dubious teeth in the mandate than it might first appear, and determining its constitutionality will be a murky affair.

What is not murky is that supporting it will be a political disaster, despite what uninformed poll responders are saying about how much they’re in favor of “affordable health care.” Dems who appear to be throwing their whole-hearted support behind this wretched Bill must have access to better drugs than I do. Whenever I explain what a “mandate” means to those who haven’t been following this debate, I’m met with incredulous silence, or an outburst of profanity.

I fully understand the need to spread the risk pool in order to bring per-capita insurance costs down, but this is an immoral, and hopefully illegal, way to do it. I am currently insured, but I wasn’t, I hope I’d have the courage to go to jail before I gave a private insurance company one coerced penny of my money. On the other hand, I would gladly pay an additional 8% income tax to fund a government run, single payer system.

I am soooo impressed with your personal conviction and your courage to say “fuck the government” and “I refuse” now that you know there is no penalty for refusal.

No matter, I am strapping on my jackboots (at least I think they are jackboots, but where is my fucking jack?) and teaming up with the IRS and the ATF and FEMA and Nancy Pelosi. Within moments, we will be climbing into a black helicopter to come get you, take away your guns and ammo and property and lock you into a cage in a concentration camp built especially for conservatives and Republicans. YOU ARE DOOMED!!! And don’t bother to bring your bible, because no religion is allowed inside the camp. And a huge picture of Obama, WITH the mustache, is hanging on every wall there. Don’t even THINK about taking it down! We have technicians on patrol 24 hours a day with special equipment to pick up your brain waves! Now even your tin foil helmet will not protect your secret thoughts!

The reason people are required to carry auto insurance is not that they be required to carry auto insurance but because they may injure some OTHER PERSON or damage their property. What the law requires you to carry is LIABILITY insurance. Many people buy other kinds of auto coverage, but it is not REQUIRED by law.

I don’t see how LIABILITY relates to your own healthcare, unless you are a PARENT of dependent children.

In terms of “paying into the general welfare,” you could make this case in a “Medicare for all” type situation. You CANNOT make this case in a patchwork system, run by discrete financial companies that maintain they can run their businesses and spend, pay out in executive compensation, etc YOUR contribution to the so-called “general welfare.”

This is not the general welfare.

That’s why, if Bam were serious about “insurance reform” he would have at least taken the public option.

My caveat about “Medicare for all,” is that younger people are already paying into Medicare, and the government would be mandating double payments by forcing them to buy into it twice over.

Frankly, conditions are such that there should be NO mandate. Whoever is out there selling insurance plans, private or public, should make it attractive *enough* that people WANT to buy the protection.

It would have been nice if Democrats had managed to retain *some* free market principles. There is NO reason for insurance companies to create attractive plans with captive consumers.

It’s bad enough that so many people are into the emotional blackmail that dictates they “hafta have” it. Some combination of regulation and “free market” would have been preferable to the new fascist corporatism.