Thread: 11+ States sue .gov over Healthcare Reform Bill

Something of a tangent, but apparently a congressional mandate is not without precedent. The Militia Act of 1792 during the Second Congress, Session I. Chapter XXVIII, Passed May 2, 1792, provided for the authority of the President to call out the Militia and required all enrolled citizens to purchase the following items:

1. musket or flintlock
2. bayonet and belt
3. No less than two spare flints
4. A pouch and inside a box containing no less than 24 cartridges
5. A quarter pound of powder
6. Plus, the proper military accouterments to maintain himself in the field

Plus, officers were required to purchase:

1. A sword
2. an espontoon

There was also a mandate to update their weapons to modern standards within five years. The congressional delegation that passed this legislation during George Washington's first administration also contained many members who had earlier helped write the Constitution.

Originally Posted by Triage

Something of a tangent, but apparently a congressional mandate is not without precedent. The Militia Act of 1792 during the Second Congress, Session I. Chapter XXVIII, Passed May 2, 1792, provided for the authority of the President to call out the Militia and required the all enrolled citizens to purchase the following items:

I'm pretty sure that falls under Article 8 of the Constitution:
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

But keep making unsupported assertions like "If health insurance is a financial matter—and it is—then Congress has the power to regulate it by the power granted under the Constitution’s Commerce Clause." It's funny how you keep trying to sneak shit like that by us, by just stating an unsupported opinion like it's an established fact.

Getting back to the automobile example: the Feds were unable to set speed limits for the entire nation, because they have no Constitutional power to do so. They had to threaten to take away Federal highway funding if the states didn't do what they said -- which is exactly what they did. Same with the drinking age: the Feds have no power to change that, but they threatened to take away highway money if the states didn't knuckle under.

Buying liquor is certainly a financial matter -- and that liquor most probably crossed state lines. Therefore, if Congress had the unrestricted ability to pass laws about financial matters, such a dodge would not have been necessary.

Yet it was. Therefore, Triage's unsupported assertion fails. There are limits on the Commerce Clause, even today, and there is a good argument for the health care bill being unconstitutional.

Originally Posted by Spats

I'm pretty sure that falls under Article 8 of the Constitution:
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

As so often happens, you miss the point. The Militia Act of 1792 did not provide for arming the militia. Instead, it created an individual mandate requiring individual citizens to purchase military equipment to government specifications.

Originally Posted by Spats

But keep making unsupported assertions like "If health insurance is a financial matter—and it is—then Congress has the power to regulate it by the power granted under the Constitution’s Commerce Clause." It's funny how you keep trying to sneak shit like that by us, by just stating an unsupported opinion like it's an established fact.

Unsupported assertions... fail. Once again, you are unable to make an argument without dropping context. Go back and read the post again because I'm not taking a position on the way things should be but rather on the way things are.

Whereas you are arguing from your own personal opinion based on how you think things should be. An opinion that is out of touch with over a hundred years of jurisprudence*.

Some history, in 1783, when the Treaty of Paris formalized Americans’ victory over British “taxation without representation,” most states, had imposed taxes that were three to four times higher than during the colonial period.

Between then and the ratification of the constitution, the states were left to govern themselves and they abused the power of the state government to cheat both their private creditors and the owners of government bonds. The result: banks stopped lending and refused to ship merchandise on credit.

Therefore, one of the primary motives for the Constitution was to take control of fiscal and monetary matters away from short sighted fools and place it in the hands of people who could take an objective view of the common good.

The 10th-ers would be better served if they accepted the fact that they are often out of touch with reality and that they sometimes have a tenuous, selective understanding of history.

I'm a proponent of States' rights, but—temporarily, stepping outside factual analysis and into opinion—in my opinion, when it comes to deciding interstate economic matters, the proper forum is legislative (as when Congress agreed that states should be allowed to set their own speed limits) rather than judicial (when the U.S. 9th Circuit Court of Appeals in San Francisco upheld the right of the federal government to impose a 55-m.p.h. speed limit on highways by threatening to withhold highway construction money from states) unless expressly forbidden by the Constitution.





*The Constitutional matter is largely settled in the affirmative by the Commerce Clause (Article I, Section 8, Clause 3):

“[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States”

The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales v. Raich, 545 U.S. 1 (2005):

“ The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.

"The Militia Act of 1792 did not provide for arming the militia. Instead, it created an individual mandate requiring individual citizens to purchase military equipment to government specifications."

You're trying to equate a ridiculous stretch of the Commerce Clause (which does have limits: see United States v. Lopez) with a Federal power [/i]specifically enumerated in Article 8 of the Constitution, which I already quoted.[/i] If there was a similar clause in the Constitution which read "To provide health care for the People of the United States", then the Federal Government would be justified in requiring the purchase of individual insurance.

Yet there is no such clause. Your serve.

"Go back and read the post again because I'm not taking a position on the way things should be but rather on the way things are."

You still haven't provided any support for your assertion that "If health insurance is a financial matter—and it is—then Congress has the power to regulate it by the power granted under the Constitution’s Commerce Clause."

Here's yet more evidence against your assertion: the fact that the government requires background checks for guns shipped interstate or through dealers, but cannot require them for intrastate deals between private parties -- which is clearly a financial matter.

Your serve.

And the rest of your post is...quoting Wikipedia. Please continue to accuse me of unsupported opinions when your only support on matters of Constitutional interpretation is Wikipedia. It's kind of charming, actually.

Originally Posted by Spats

Yet there is no such clause. Your serve.


Your serve.

And the rest of your post is...quoting Wikipedia. Please continue to accuse me of unsupported opinions when your only support on matters of Constitutional interpretation is Wikipedia. It's kind of charming, actually.

Pathetic. Once again, you drop context to support what is now an incoherent strawman argument. Your argument, "yet there is no such clause" is complete nonsense under current jurisprudence.

Legitimate counter-arguments exist, yours is is not one them. Specifically (see below):

Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a reasonable person with a sixth grade grasp of grammar could read the "Due Process" Clause to assure anything but procedural rights.

The Wikipedia links were merely a convenient source for the Supreme Court cases and precedent in question. They did not, in any way, form the basis of the argument.

Originally Posted by Spats

You still haven't provided any support for your assertion that "If health insurance is a financial matter—and it is—then Congress has the power to regulate it by the power granted under the Constitution’s Commerce Clause."

Fail. One more time. This time directly sourcing the Supreme Court cases through the Cornell and Stanford academic sites. Which doesn't change the substance of the argument, at all.

Congress does not have the power to regulate health but it does have the power to regulate economic matters like health insurance. Separating, should health care reform be passed from can health reform be passed is a Commerce Clause matter, not a 10th Amendment matter. From a constitutional standpoint, two questions have to be answered:

1. Does Congress NOT have the federal power under the constitution?
   
   
2. Does the measure infringe upon individuals rights under the “Bill of Rights?” Because the Bill of Rights contains both substantive and procedural rights designed to limit the power of the federal government.

If health insurance is a financial matter—and it is—then Congress has the power to regulate it by the power granted under the Constitution’s Commerce Clause based on precedent set by a series of court cases as well as the ipso facto existence Medicare & Medicaid, neither of which of succumbed to legal challenges in their more than four decades of existence.

Next, the issue of the individual mandate and individual economic rights in this context has to do with Substantive Due Process and individual rights:

First, it gives the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this:

· Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process. This can be called "Substantive Incorporation."

· Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendment’s Due Process Clause.

Second, once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights.

The reason why this matters is because rendering Medicare, Medicaid, and Social Security unconstitutional—and by extension, health care reform—would almost certainly require conservative originalists on the court to recognize Substantive Due Process with regard to individual economic rights, something that is simply not going to happen:

Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, call substantive due process a "judicial usurpation" or an "oxymoron."

Claiming the theory itself which is "unconstitutional." They claim that it is a pure usurpation of power by the Court since they Court can’t use Judicial Review to strike down a state law unless the law is really contrary to the Constitution. Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a reasonable person with a sixth grade grasp of grammar could read the "Due Process" Clause to assure anything but procedural rights. They say that when the Court uses judicial review to enforce these pseudo-Constitutional rights they are stealing the legitimate law-making power from [the] legislatures.

In other words, people can continue to argue the merits of health care reform but the Constitutional matter is largely settled in the affirmative by the Commerce Clause (Article I, Section 8, Clause 3):

“[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States”

The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales v. Raich, 545 U.S. 1 (2005):

The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.

Kentucky Attorney General refuses to join lawsuit, won't "waste taxpayer dollars on a political stunt."

Originally Posted by Hotline Oncall

KY AG Jack Conway (D) is wading into the health care debate, announcing Tuesday he will not file a lawsuit against the federal government in trying to refuse the legislation.

"I do not intend to use my authority as Kentucky Attorney General to sign our Commonwealth onto a health care lawsuit against the federal government, because I will not waste taxpayer dollars on a political stunt," Conway said in a statement provided to Hotline OnCall.

An update...

White House, experts: States’ lawsuits over health reform will fail

By The Associated Press
Tuesday, March 23rd, 2010 -- 11:56 pm

The White House says it isn't worried that 13 state attorneys general are suing to overturn the massive health care overhaul, and many legal experts agree the effort is futile.

But the lawsuit, filed in federal court seven minutes after President Barack Obama signed the 10-year, $938 billion health care bill, underscores the divisiveness of the issue and the political rancor that has surrounded it.

Florida Attorney General Bill McCollum led the effort to file the suit that claims Congress doesn't have the constitutional right to force people to get health coverage. It also says the federal government is violating the Constitution by forcing a mandate on the states without providing resources to pay for it.

"To that I say, 'Bring it on,'" said White House domestic policy chief Melody Barnes, who cited similar suits filed over Social Security and the Voting Rights Act when those were passed. "If you want to look in the face of a parent whose child now has health care insurance and say we're repealing that ... go right ahead."

McCollum, a Republican running for governor, has been talking about suing to overturn the bill since December. This month he invited other attorneys general to join him. So far South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana have agreed.

All the attorneys general are Republican except James "Buddy" Caldwell of Louisiana, a Democrat, who said he signed on because Republican Gov. Bobby Jindal asked him to and he felt the effort had merit.

The lawsuit, filed in Pensacola, asks a judge to declare the bill unconstitutional because "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."

Robert Sedler, a constitutional law professor at Wayne State University in Detroit, said the effort isn't going anywhere.

"This is pure, pure political posturing and they have to know it," he said.

But South Dakota Attorney General Marty Jackley disputed that characterization, saying his state will have to cut education and other programs to make up for increased Medicaid costs under the overhaul.

"This isn't about attorneys general trying to break into the realm of telling what needs to happen with health care reform," he said. "This is attorneys general saying you went too far with unfunded federal mandates. You exceeded your power under the Constitution."

Not so, said Bruce Jacob, a constitutional law professor at Stetson University in Florida, who said the suit seems like a political ploy and is unlikely to succeed.

"The federal government certainly can compel people to pay taxes, can compel people to join the Army," he said.

Some states are considering separate lawsuits Virginia filed its own Tuesday and others, including Missouri, may join the multistate suit. Still others are looking at other ways to avoid participating, like passing legislation to block requirements in the bill.

McCollum predicted his suit would eventually end up before the U.S. Supreme Court.

The health care bill "is not lawful," he said. "It may have passed Congress, but there are three branches of government."

The lawsuit claims the health care bill violates the 10th Amendment, which says the federal government has no authority beyond the powers granted to it under the Constitution, by forcing the states to carry out its provisions but not reimbursing them for the costs.

Washington Gov. Chris Gregoire, a Democrat, said she strongly disagrees with Attorney General Rob McKenna's decision to sue, calling the lawsuit an effort to "gut the bill."

"There is no reason why we need to spend taxpayer money in the state of Washington to join this suit, when it's going to be litigated no matter what," she said.

The lawsuit also says the states can't afford the new law. Using Florida as an example, it says the overhaul will add almost 1.3 million people to the state's Medicaid rolls and cost the state an additional $150 million in 2014, growing to $1 billion a year by 2019.

"We simply cannot afford to do the things in this bill that we're mandated to do," McCollum said at a press conference after filing the suit. He said the Medicaid expansion in Florida will cost $1.6 billion, including administrative and other costs.

Under the bill, starting in six months, health insurance companies would be required to keep young adults as beneficiaries on their parents' plans until they turn 26, and companies would no longer be allowed to deny coverage to sick children.

Other changes would not kick in until 2014.

That's when most Americans will for the first time be required to carry health insurance either through an employer or government program or by buying it themselves. Those who refuse will face tax penalties.

No Republicans in the U.S. House or Senate voted for the bill, which Justice Department spokesman Charles Miller in Washington said his agency will vigorously defend.

"We are confident that this statute is constitutional and we will prevail when we defend it," he said

Originally Posted by mock vomit

An update...

What do you expect them to say. "Ohh yea, turns out we just pushed for over a year and passed something that was completely unconstitutional"?

Originally Posted by mock vomit

Kentucky Attorney General refuses to join lawsuit, won't "waste taxpayer dollars on a political stunt."

Does it matter that he's a Democrat?

Our republican AG is filed as well. Last night he was on tv saying that there really isn't much legal basis for the lawsuit but that you have to "stand up for what's right". Way to waste our tax dollars douchebag.

Originally Posted by nutcase

Our republican AG is filed as well. Last night he was on tv saying that there really isn't much legal basis for the lawsuit but that you have to "stand up for what's right". Way to waste our tax dollars douchebag.

Man, did you see how pissed Gregoire was at McKenna? That lady scares me. I have a few friends who have worked for her and then tell stories like the ones you hear about Hillary.

Originally Posted by Summit

With health insurance, the government has set minimum standards and said YOU HAVE TO BUY IT.

the government will fine/imprison you if you don't pay money to those private companies

I hate to tell you this, but you are dead wrong on this. I realize that Fox News has stirred up the pot by calling this a "mandate" and saying people will be fined and/or imprisioned for not buying insurance. But that is simply untrue.

The way the bill works is (a) you buy health insurance, then (b) you get a tax credit. If you do not have health insurance then you do not get the tax credit.

Not getting a tax credit is not the same as paying a fine. That is why all these state AG lawsuits are not going to work. There are no fines and there is no jail time. Just the loss of a tax credit.

This bill and it's "mandated health insurance" is really no different than the tax law regarding home ownership. If you (a) buy a home, then (b) you get a tax deduction. Using Fox News/Tea Bagger logic this means the government is forcing everyone to buy a home.

This lawsuit is a joke and will go nowhere.

Originally Posted by Harry

I hate to tell you this, but you are dead wrong on this. I realize that Fox News has stirred up the pot by calling this a "mandate" and saying people will be fined and/or imprisioned for not buying insurance. But that is simply untrue.

The way the bill works is (a) you buy health insurance, then (b) you get a tax credit. If you do not have health insurance then you do not get the tax credit.

Not getting a tax credit is not the same as paying a fine. That is why all these state AG lawsuits are not going to work. There are no fines and there is no jail time. Just the loss of a tax credit.

This bill and it's "mandated health insurance" is really no different than the tax law regarding home ownership. If you (a) buy a home, then (b) you get a tax deduction. Using Fox News/Tea Bagger logic this means the government is forcing everyone to buy a home.

This lawsuit is a joke and will go nowhere.

Don't hate to tell me. I hope what you said is correct.

Originally Posted by Harry

I hate to tell you this, but you are dead wrong on this. I realize that Fox News has stirred up the pot by calling this a "mandate" and saying people will be fined and/or imprisioned for not buying insurance. But that is simply untrue.

No man, there is an individual mandate penalty.

It is $750 for any month one goes without coverage, capped at 3x this per year ($2250). This is phased in and will be $95 in 2014, $350 in 2015 and go full bore in 2016. It will also be subject to a 'cost of living' adjustment based on where you live - so could be higher or lower.

Thank you Corky. At some point I'd love it if you could bullet point the salient features of this healthcare plan (a pro and con if you will). You seem to be neck deep in the healthcare field salt mines, and I'm sure you've got just oodles of time to waste here.

Originally Posted by OSECS

Thank you Corky. At some point I'd love it if you could bullet point the salient features of this healthcare plan (a pro and con if you will). You seem to be neck deep in the healthcare field salt mines, and I'm sure you've got just oodles of time to waste here.

All in good time dude. I wish I had the free time to read and digest that sucker...but have you seen how long it is? For now you'll have to be content with me periodically correcting bogus info spouted by you dunces(what emoticon goes here...this guy maybe )

You know, it's not all that hard to look up stuff in the bill - some of you guys should give it a try. It's on the web here http://docs.house.gov/rules/hr4872/1..._engrossed.pdf

I went there and found this in the table of contents

PART I—I

NDIVIDUAL RESPONSIBILITY

Sec. 1501. Requirement to maintain minimum essential coverage.

So I went down to sec 1501, skimmed it and got my info. Took about 2 minutes.

Originally Posted by Corky

All in good time dude. I wish I had the free time to read and digest that sucker...but have you seen how long it is? For now you'll have to be content with me periodically correcting bogus info spouted by you dunces(what emoticon goes here...this guy maybe )

You know, it's not all that hard to look up stuff in the bill - some of you guys should give it a try. It's on the web here http://docs.house.gov/rules/hr4872/1..._engrossed.pdf

I went there and found this in the table of contents

PART I—I

NDIVIDUAL RESPONSIBILITY

Sec. 1501. Requirement to maintain minimum essential coverage.

So I went down to sec 1501, skimmed it and got my info. Took about 2 minutes.

Like I've got time to think or fact check !! I'm too busy typing !

We do need a dunce cap emoticon

Originally Posted by OSECS

Thank you Corky. At some point I'd love it if you could bullet point the salient features of this healthcare plan (a pro and con if you will). You seem to be neck deep in the healthcare field salt mines, and I'm sure you've got just oodles of time to waste here.

O, why get in the weeds of this thing. It's not even about health care.

Originally Posted by Downbound Train

O, why get in the weeds of this thing. It's not even about health care.

It's about being angry!!!!!!!!!!!! GRRRRR!!!!!!!

Well, I'd like to see something constructive come out of this thread. Since I can't do anything about stupid disingenuous people in other states - anyone know the process for recalling or firing an AG in Washington state?

Originally Posted by Downbound Train

O, why get in the weeds of this thing. It's not even about health care.

Well if I'm gonna rail against something I want some facts. I think I trust Corky to dole out factual shit.

C'mon man our healthcare system is gonna break us, and while I don't think this was the best plan, something needed to be done, and it wasn't gonna get done from the private sector with no motivation. Our "don't fix it till it's way past broke" is why SS, medicare, and medicaid are broke or about to go broke.

Originally Posted by spindrift

Well, I'd like to see something constructive come out of this thread. Since I can't do anything about stupid disingenuous people in other states - anyone know the process for recalling or firing an AG in Washington state?

Darn. Just looked at the state constitution. Apparently it takes a 3/4 vote of both legislative branches. Too bad this can't be done directly by the public...

Originally Posted by OSECS

Well if I'm gonna rail against something I want some facts. I think I trust Corky to dole out factual shit.

C'mon man our healthcare system is gonna break us, and while I don't think this was the best plan, something needed to be done, and it wasn't gonna get done from the private sector with no motivation. Our "don't fix it till it's way past broke" is why SS, medicare, and medicaid are broke or about to go broke.

Have it your way. Post up all the cost savings in the bill guys. I'll start, $500B in waste, fraud and abuse savings. Tee Heee Heee.

There is a better chance of an additional $500B in waste,fraud and abuse than there is that they'll save $50,000 in waste fraud and abuse with this bill.

That's my opinion but here's some fact from Rep. Dingell. Finally a Dem telling the truth about this bill

http://www.breitbart.tv/shocking-aud...rol-the-people

<embed src="http://blip.tv/play/hJNRgc_7JAI%2Em4v" type="application/x-shockwave-flash" width="480" height="360" allowscriptaccess="always" allowfullscreen="true"></embed>

Originally Posted by Corky

No man, there is an individual mandate penalty.

It is $750 for any month one goes without coverage, capped at 3x this per year ($2250). This is phased in and will be $95 in 2014, $350 in 2015 and go full bore in 2016. It will also be subject to a 'cost of living' adjustment based on where you live - so could be higher or lower.

Corky; you are correct about the amounts. But you are NOT correct about it being a "penalty". Read the exact paragraph closely in your next post.

No one is going to be "fined", and no one is "going to be put in jail".

What IS going to happen is that people who do not have health insurance will not get a get a tax credit of the exact amounts you cited.

But not getting a tax credit of $750 IS NOT THE SAME as being fined $750.

It really is like how Spats described speed limits: the Federal government cannot set a nationwide speed limit, but they CAN say if your states speed limit is not XX, then you get no federal funds.

I agree, and so does Nancy Pelosi and Harry Reid, that just like Spat's speed limits example, Congress cannot "force" someone to pay money to a private corporation. But they CAN withhold Federal money (i.e. tax credits) for those who do not. There really is no argument on this point. (exept on Fox News).

Like I said, use the home ownership analogy. I have a mortgage and paid $8,000 in interest last year, which I was allowed to deduct on my taxes.

Jer, who lives in his parents basement, did not get this deduction.

Does that mean Jer was fined $8,000 ? NO

Does that mean Jer was forced by Obama to buy a house ? NO

Could Jer get the $8,000 deduction if he bought a house? YES

Is the $8,000 in interest paid to a private corporation ? YES

Replace home ownership with health insurance and this will describe how the bill works. The Federal Government is creating an insentive for an individual to give money to a private corporation on health insurance and/or home ownership.

The republican AG lawsuit is frivilous, and is just political grandstanding.




edit: apology to Jer if he does not really live in his parents basement. For all I know dude drives a Lexus and lives in a mansion.

he actually lives in a Lexus in the basement of his parents' mansion...