Liberals and Conservatives Question Constitutionality of Healthcare Legislation → Washingtons Blog
Liberals and Conservatives Question Constitutionality of Healthcare Legislation - Washingtons Blog

Thursday, December 24, 2009

Liberals and Conservatives Question Constitutionality of Healthcare Legislation

Both progressives and conservatives question the constitutionality of the healthcare bill. Specifically, people from across the aisle say that the government cannot force people to buy private health insurance.

On the left, progressives such as law school professor Sheldon Laskin, anti-war activist David Swanson, and Miles Mogulescu are calling the bill authoritarian and unconstitutional.

On the right, Senators John Ensign, Mike Johanns, Lindsay Graham and Jim DeMint and the state attorneys general of Michigan, Washington, South Carolina, and perhaps other several other states are contesting the constitutionality of the mandatory insurance provision in the healthcare bill.


  1. It is an interesting legal question. The government justification for legislating automobile insurance is that driving an automobile is optional and there is a greater social injustice in letting uninsured accidents incur large unpayable debts than in forcing the use of insurance on automobile drivers. Mandatory auto insurance is frequently quoted as one of the precedents for this kind of mandatory health coverage.

    The assumption being made is that if you are alive in America, you are very likely to use the health care system at some point in your life and in order to avoid large unpayable debts you need to be insured. This assumption is backed by the laws and procedures that affect our nation's first responders, who are mandated to provide emergency medical care.

    Every citizen is entitled to legal representation and the state pays lawyers for the indigent with tax money. This can be viewed as a precedent for expanding this entitlement to medical services, for both are needs that all people can be expected to have at some time of their life.

    On the other hand, this effectively levies a new tax on the American people that is not paid to the government but to an effective oligarchy of health insurance providers, who will now be accepting patients with pre-existing conditions but charging them much more for the coverage they are mandated to purchase.

    Right now might be a good time to purchase stock in health insurance giants. They're gonna gain 47 million new clients in the next 2-3 years.

  2. First, let me say, I am sixty. I haven't seen a doctor in decades, and plan never to see one again.

    For me, I've made a personal moral pledge. The practice of medicine is immoral, period. I will not succumb to any fear of dying. I will simply never again see a doctor.

    I realize few will have the courage, strength and gumption to live by this unselfish ethical belief.

    Having laid out my own views on the medical debacle, the question of health care reform still arrives for all of us without any clear definition concerning what it will do to society's increasing economic stratification.

    The question here is, will this newly proposed government mandate -that every purchase medical insurance- hold back the personal effort and sacrifice being made by some who are seeking to build for themselves financial strength and independence?

    In other words, aside from the expenditure mandate, which seems a constitutional stretch too far, if you lose your job, if you stumble on your path upward, AND YOU HAVE SOME SAVINGS IN THE BANK, is the determination concerning what you should pay into the medical industry slush fund through these insurers going to look at your savings and say, GIMMIE THAT!

    That's what I think these swine are up to. They want to be able to lay claim to your life's savings -for the insurance companies and the medical industry slush fund.

    That's the crux of this rip-off. It is going to amount to a massive shift of wealth -from the young to the old, so that the old can lavish the wealth of the nation upon an immoral medical industry that provides few societal benefits, and has historically bequeathed to the world a mountain of human plagues.

    As poor as you are right now, having lost your job, perhaps your home and your wife and kids too, now the f-ing government is going to steal your measly savings from you to give to the insurance companies -so the medical industry has a healthy, waist-deep slush fund made of your hard-earned cash.

    And in the mean time, -as well as in the future- regardless this legislation winding its way through the whack-em Congress, SHOULD YOU ever actually be stupid enough to go to the hospital, you will certainly still be buried by hospital bills no one can pay -REGARDLESS THE INSURANCE/MEDICAL INDUSTRY SLUSH FUND CONGRESS, PRESIDENT OBAMA AND THE MAIN STREAM MEDIA ARE ADVOCATING TO BAIL OUT THE INSURANCE AND MEDICAL INDUSTRIES.

  3. These politicians who according to them are from different sides of the isle. They then seemingly question the "constitutionality" of Forced healthcare bill. What do they do? They vote for it knowing it is Unconstitutional. Woe to those who say good is evil and evil is good.

  4. I doubt that this constitutionality point is tenable.

    Strictly, speaking the law imposes a special income tax of 2%, which isn't collected if you have health insurance. Are they going to argue that the income tax is unconstitutional? That various exemptions and deductions in the income tax are unconstitutional?

    Silly stuff.

  5. This is to 60 year old Anonymous. You may not seek medical attention on your own, but if you get in an accident and cannot speak for yourself, you will be taken to a hospital. Without insurance, the rest of us will need to pay for you. How is this fair?

    This is why I'm for healthcare for everyone. There are so many uninsured people out there... I think it would be cheaper to get them health insurance.... even if it needs to be subsidized.

  6. If they make it a tax then it's okay. It's just right now they are saying it is not a tax.

  7. Mock & Tolin: The Constitutionality of the Health Insurance Tax
    Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo -- Orfalea College of Business) have posted Purchase or Else: The Health Insurance "Tax", 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:

    With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”


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