Challenging mandatory insurance in court

Posted on January 7, 2010 by Brian Schwartz

From the AP:

Opponents of the health care reform bill are not giving up the fight, and some think their last, best hope to halt the legislation lies not in the Capitol but in the court across the street.

A small but vocal contingent of legal scholars and many Republican lawmakers argues the measures passed by both chambers are unconstitutional and will be ruled so by the Supreme Court. Their primary target: the individual mandate, which requires people to get health insurance or pay a financial penalty of at least 2 percent of their income to the government.

If the Supreme Court strikes this down (as it should), I figure a work-around would be to (1) impose federal mandates on what is acceptable insurance, (2) raise everyone’s taxes and (3) provide a tax credit for buying said insurance.  Yes, this is evil. So why give anyone ideas?  Well, I won’t flatter myself into thinking that I’m the first.

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  • bbunk

    I'm not a legal expert, so can someone explain how it is that a state can file a lawsuit seeking to protect individual citizens from an insurance “mandate”?

    How is it possible that they have any standing to represent their citizens in this manner?

  • bbunk

    I'm not a legal expert, so can someone explain how it is that a state can file a lawsuit seeking to protect individual citizens from an insurance “mandate”?

    How is it possible that they have any standing to represent their citizens in this manner?

  • LindaGorman

    States have an obligation to protect their citizens from unconstitutional power grabs by the federal government. It has limited powers and was deliberately created that way. If you read the filings on the state lawsuits, you will see that they argue that they will be bankrupted by the ObamaCare requirements and that they do not believe that a federal requirement to participate in economic activity (the individual mandate to purchase health insurance that the federal government defines and prices). The courts will decide. For a good overview of the issues, see Barnett, Stewart, and Gaziano, “Why the Personal Mandate to buy Health Insurance is Unprecedented and Unconstitutional” at the Heritage Foundation website. The paper contains a good discussion of why the tax on those who do not purchase health insurance may also be unconstitutional as the U.S. Constitution only allows the federal government to impose three kinds of taxes and that tax does not fit into the allowed categories.

  • LindaGorman

    States have an obligation to protect their citizens from unconstitutional power grabs by the federal government. It has limited powers and was deliberately created that way. If you read the filings on the state lawsuits, you will see that they argue that they will be bankrupted by the ObamaCare requirements and that they do not believe that a federal requirement to participate in economic activity (the individual mandate to purchase health insurance that the federal government defines and prices). The courts will decide. For a good overview of the issues, see Barnett, Stewart, and Gaziano, “Why the Personal Mandate to buy Health Insurance is Unprecedented and Unconstitutional” at the Heritage Foundation website. The paper contains a good discussion of why the tax on those who do not purchase health insurance may also be unconstitutional as the U.S. Constitution only allows the federal government to impose three kinds of taxes and that tax does not fit into the allowed categories.

  • bbunk

    I find your reply mostly off-topic in relation to my questions. Potential bankruptcy is not a protection factor that has any direct bearing on citizens (they're not facing bankruptcy). Actually, I find it far-fetched that a state could ever approach bankruptcy.

    I find your idea that states are obligated to file suite to protect citizens on federal constitutional issues not credible. Unless you can provide any real evidence that this has any basis in statutes of case law, then I would be inclined to dismiss it entirely as just a something that feels good (to you and possibly others).

    After all, there may be a majority of state citizens that are looking forward to the changes the new law brings. How is the state protecting them?

  • bbunk

    I find your reply mostly off-topic in relation to my questions. Potential bankruptcy is not a protection factor that has any direct bearing on citizens (they're not facing bankruptcy). Actually, I find it far-fetched that a state could ever approach bankruptcy.

    I find your idea that states are obligated to file suite to protect citizens on federal constitutional issues not credible. Unless you can provide any real evidence that this has any basis in statutes of case law, then I would be inclined to dismiss it entirely as just a something that feels good (to you and possibly others).

    After all, there may be a majority of state citizens that are looking forward to the changes the new law brings. How is the state protecting them?