The Country is going nuts with the recently passed health care passage. If you have read ANY of my political posts before you could only imagine how much this bill makes me sick, literally it is a feeling of lost like the Country is taking a piss poor turn. But beyond personal feelings I question the legality and constitutionality of this particular bill.
Two of my favorite bloggers wrote up great reviews of the issue from opposing sides. I will throw it out there right now, I do not agree with Financial Samurai, while I think Darwin sums it amazing:
- Darwin’s Finance – What’s Wrong with This Health Care Plan
- Financial Samurai’s – Insuring the Uninsured is Worth it
My main arguments surround the normal anti-big government rhetoric – I don’t believe the government can run anything efficiently and there is something wrong about the federal government forcing me to purchase any type of product. But that is not what this post is about, you can read hundreds of those types of posts elsewhere, and come on if you read my site often enough you know what I believe. Really, I want to know if this garbage is legal and constitutional.
Is The Health Care Bill Constitutional?
Right off the bat I will admit I am not a Constitutional Law expert, nor am I even a novice – and in fact I haven’t read a Con Law article since Law School unless it applies to taxes. Actually Con Law was a very tough time for me. Imagine a White Christian Male raising his hand during class and asking why my property tax dollars should fund a school in a predominately African American neighborhood, or Imagine that same White Christian Male asking why a female should have any additional rights to a Child of both parties, or Imagine that same White Christian Male asking why it is fair that any minority should benefit for the atrocities (and I do mean atrocities) of the forefathers 400 years ago. I truly believe everyone should be afforded equal rights, and those rights should not be at the expense of anyone else.
I didn’t have to search hard to find a Con Law expert to talk about this bill. All I did was head over to Cato, a Washington think tank, and I found a good article from Randy E. Barnett a fellow at Cato and a Con Law professor at Georgetown University. He wrote an article aptly titled, “Is Health-Care Reform Constitutional?” Like everything else in the World it comes down to…maybe.
Mandating The Purchase of Insurance May Be Unconstitutional
The Issue is put simply by Mr. Barnett,
Can Congress really require that every person purchase health insurance from a private company or face a penalty?
This is different than forcing me to purchase auto insurance in New York, because I am actively choosing to drive my car, oh and that is despite taking a loan on the vehicle which I was ripped for lol. Most people don’t realize it, but our federal government is one of limited powers. Meaning that if it is not in the Constitution than according to the 10th Amendment ratified in 1791,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So the question really comes to whether the Commerce Clause which grants the Federal Government the power to control and regulate power between the states, would apply to inactivity. The Commerce Clause has a ridiculous storied history that I once knew years ago. It is not as easy as reading the couple paragraphs that make it up, you would need to read about 15 LONG and tedious cases which restricted the federal gov’t then broadened the power, then restricted and I think we are still in a time of broadening power.
Anytime that a lawyer or law professor uses the word, “unprecedented” it means I don’t know…so maybe.
But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying “cash for clunkers” is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.
So when this does go to the Supreme Court of the United States, and it will, they will ultimately decide whether inactivity is within the power of Commerce Clause, and if it is not…then it is is unconstitutional.
The Slaughter House Rule may Make Health Care Reform Unconstitutional
Article I of the Constitution makes it VERY clear that a bill must be passed by both the House and Senate. Well Rules Committee Chairman Louise Slaughter ahd the bright idea of making some pass without a nay or yay vote. Someone must have gotten to her ear and told her that this could cause the whole thing to collapse by a Federal judge. So this isn’t an issue anymore since it went to vote on Sunday.
The kick Backs and Disgusting Pork
I doubt this is going to hold much water since every bill has these features, but the ones here are egregious and make me sick. The biggest one is the Louisiana Purchase whereby Louisiana is exempt from a change in the formula for calculating the state-federal split on Medicaid costs. Woah, so the rest of the Country (i.e. me and you) will have to eat Louisiana’s Medicaid costs? F. That.
I don’t give a shit about Louisiana’s Medicaid Costs, there I said it, and I am damn sure that Louisiana wouldn’t want to pay for my yankee ass’ Medicaid if I were to need it. I guess one first need to accept that Medicaid is going to cost more for this to matter, but who the hell doesn’t believe that? Just like Medicaid was projected to cost a tenth of what it costs today.
Again, is that going to make this thing unconstitutional? I doubt it, but come on!
Forget rhetoric for a moment (but would be happy to go there in a different post) do you believe that the federal government should have this power? I don’t doubt that States have this power but I am just not convinced this is a Federal Issue.