Op-Ed from David Gergen

[ChitownHusker]

That would be a POLICY precedent; not a Constitutional one. Requiring citizens to purchase insurance is a policy decision; whether they have the authority to do so is up to the Court, but precedent indicates Congress may, even if it's a bad policy choice.

I would disagree with you there, it absolutely would be a constitutional precedent. It is a very thorny constitutional issue as to whether Congress can invoke its own jurisdiction by forcing someone to enter the stream of commerce when they otherwise would not. You know as well as I that there is no precedent directly on point for the individual mandate. So I think McKinney is absolutely correct when he mentions the constitutional precedent that would accrue from forcing someone to buy a product.

[ChitownHusker]

Wow, equating the authority of the Federal government to levy taxes with the authority to regulate interstate commerce or mandate that a citizen purchase a private product now? It would appear you're not the constitutional law expert you claim to be. There's a huge difference.

Apparently I'm just a contrarian today, because CM is right on this one. Congress likely could have avoided a constitutional issue with respect to the mandate simply by structuring it as a tax (ie, everyone pays a health insurance tax and then gets a rebate or a deduction if they purchase health insurance) but they did not do so because of the politics of raising taxes. But functionally speaking, there would be very little difference if the penalty mechanism of the mandate was a tax or a fine.

[cm husker]

I would disagree with you there, it absolutely would be a constitutional precedent. It is a very thorny constitutional issue as to whether Congress can invoke its own jurisdiction by forcing someone to enter the stream of commerce when they otherwise would not. You know as well as I that there is no precedent directly on point for the individual mandate. So I think McKinney is absolutely correct when he mentions the constitutional precedent that would accrue from forcing someone to buy a product.

That's not how mckinney framed it. His quote implies that the Court would be adopting the policy requiring the purchase. The Court would be requiring no such thing. It would simply be deferring to Congress to set policy.

As to whether I think it's dangerous for the Congress to legislate in that way, I don't share your concerns. I think national legislation is often necessary to get any real movement on these issues; otherwise they are subject to collective action and prisoner dilemma issues.

[McKinneyTXHusker]

That would be a POLICY precedent; not a Constitutional one. Requiring citizens to purchase insurance is a policy decision; whether they have the authority to do so is up to the Court, but precedent indicates Congress may, even if it's a bad policy choice.

No, cm, whether Congress has the power to mandate a purchase of a private product by citizens is definitely a CONSTITUTIONAL precedent. Again, like Chi I don't disagree with whether or not its good policy, but also like Chi, I have serious reservations whether its CONSTITUTIONAL, and I think if so its a fairly dangerous precedent-setting expansion of the commerce clause.

[ChitownHusker]

Actually, there's not a huge difference.

If Congress passed a tax on all citizens and turned around and purchased an insurance policy for those citizens with the revenue, would it be constitutional?

Showman was correct earlier when he noted the irony that there likely would not be any constitutional issue with respect to single payer. The constitutionality of single payer was effectively decided with social security and medicare.

[McKinneyTXHusker]

Apparently I'm just a contrarian today, because CM is right on this one. Congress likely could have avoided a constitutional issue with respect to the mandate simply by structuring it as a tax (ie, everyone pays a health insurance tax and then gets a rebate or a deduction if they purchase health insurance) but they did not do so because of the politics of raising taxes. But functionally speaking, there would be very little difference if the penalty mechanism of the mandate was a tax or a fine.

No, I agree completely that had they constructed a tax, there wouldn't be a valid constitutional issue to raise (as opposed to debating the goodness or badness of the policy.) Functionally little difference, but constitutionally substantial difference, correct?

[ChitownHusker]

No, I agree completely that had they constructed a tax, there wouldn't be a valid constitutional issue to raise (as opposed to debating the goodness or badness of the policy.) Functionally little difference, but constitutionally substantial difference, correct?

That is correct.

[cm husker]

Why is it dangerous to require citizens to purchase health insurance?

Doesn't society effectively require citizens to purchase seat belts by requiring all car manufacturers to install them? And that's just one example of many.

Let's be real clear, the law doesn't require a citizen to buy a particular brand of product, just a type of product.

I fail to see what's to fear here... maybe someone could elucidate?

[cm husker]

No, I agree completely that had they constructed a tax, there wouldn't be a valid constitutional issue to raise (as opposed to debating the goodness or badness of the policy.) Functionally little difference, but constitutionally substantial difference, correct?

That is correct.

In terms of analysis, I don't see how we can allow ourselves as a nation to be wrapped around framing and semantics issues.

[ChitownHusker]

In terms of analysis, I don't see how we can allow ourselves as a nation to be wrapped around framing and semantics issues.

If Congress and the Obama administration vigorously insisted at oral argument that the fine was not a tax (and the solicitor general absolutely did just that) then the Supreme Court has to accept that. A deliberate choice was made to utilize the Commerce Clause as the constitutional authority for this law, and not the power to levy taxes. If the Commerce Clause does not do authorize the mandate, then it would go against every principle of statutory and constitutional interpretation that I know for the Supreme Court to say "Meh, close enough -- Congress didn't do it right, but we'll let it slide because we don't want to get hung up on semantics.'

[cm husker]

Thanks for confirming exactly what I suspected. "Most other's opinions, particularly if they disagree with mine, aren't too useful, intelligent or articulate - but I have a better handle on it than most." Seems to be your greatly inflated opinion of yourself on many issues, but I had to ask to make sure rather than just assuming.

On this issue, I do know more than you.

I'm sure on other issues, especially those related to your profession, you know quite a bit more than me.

[cm husker]

If Congress and the Obama administration vigorously insisted at oral argument that the fine was not a tax (and the solicitor general absolutely did just that) then the Supreme Court has to accept that. A deliberate choice was made to utilize the Commerce Clause as the constitutional authority for this law, and not the power to levy taxes. If the Commerce Clause does not do authorize the mandate, then it would go against every principle of statutory and constitutional interpretation that I know for the Supreme Court to say "Meh, close enough -- Congress didn't do it right, but we'll let it slide because we don't want to get hung up on semantics.'

I think they can absolutely look at the powers the fed may exercise when determining the scope of the CC, and a long and relatively uncontroversial history of precedent supporting the same.

This whole debate reminds me of the scene in Black Hawk Down where the officer approaches a Delta and asks why his weapon isn't safetied. He responds by referring to his trigger finger as his safety. I feel that the legislative will of the people is the functional equivalent of the safety whenever someone starts asking what is the "limiting principle" associated with CC interpretation.

[ChitownHusker]

I think they can absolutely look at the powers the fed may exercise when determining the scope of the CC, and a long and relatively uncontroversial history of precedent supporting the same.

This whole debate reminds me of the scene in Black Hawk Down where the officer approaches a Delta and asks why his weapon isn't safetied. He responds by referring to his trigger finger as his safety. I feel that the legislative will of the people is the functional equivalent of the safety whenever someone starts asking what is the "limiting principle" associated with CC interpretation.

Couldn't disagree more. Your interpretation makes the Commerce Clause utterly meaningless. Indeed, it basically deletes Article I, Section 8 from the Constitution altogether. If all that is required for a bill to be constitutional is that it is lawfully passed by a majority of representatives and senators, then the framers would have said just that. Instead, they chose to specifically enumerate Congress' powers. The Supreme Court is obliged to assume that the framers intended to limit congressional authority because they did not give it the carte blanche that you suggest it should have.

[McKinneyTXHusker]

On this issue, I do know more than you.

Umm... rriigghhtttt.... I'm with Chi here - you're sure not making it look like you're very knowledgeable on this topic, cm.

I think they can absolutely look at the powers the fed may exercise when determining the scope of the CC, and a long and relatively uncontroversial history of precedent supporting the same.

This whole debate reminds me of the scene in Black Hawk Down where the officer approaches a Delta and asks why his weapon isn't safetied. He responds by referring to his trigger finger as his safety. I feel that the legislative will of the people is the functional equivalent of the safety whenever someone starts asking what is the "limiting principle" associated with CC interpretation.

Couldn't disagree more. Your interpretation makes the Commerce Clause utterly meaningless. Indeed, it basically deletes Article I, Section 8 from the Constitution altogether. If all that is required for a bill to be constitutional is that it is lawfully passed by a majority of representatives and senators, then the framers would have said just that. Instead, they chose to specifically enumerate Congress' powers. The Supreme Court is obliged to assume that the framers intended to limit congressional authority because they did not give it the carte blanche that you suggest it should have.

[cm husker]

If Congress and the Obama administration vigorously insisted at oral argument that the fine was not a tax (and the solicitor general absolutely did just that) then the Supreme Court has to accept that. A deliberate choice was made to utilize the Commerce Clause as the constitutional authority for this law, and not the power to levy taxes. If the Commerce Clause does not do authorize the mandate, then it would go against every principle of statutory and constitutional interpretation that I know for the Supreme Court to say "Meh, close enough -- Congress didn't do it right, but we'll let it slide because we don't want to get hung up on semantics.'

Can you point me in the direction of the bolded?

I scanned the transcript and didn't find that at all... found arguably the opposite:

http://www.supremecourt.gov/oral_arg...11-398-Tuesday

JUSTICE
SCALIA: The President said it wasn't a tax, didn't he?
GENERAL VERRILLI: Well, Justice Scalia, what the -- two things about that. First, as it seems to me, what matters is what power Congress was exercising. And they were -- and I think it's clear that the -- they were exercising the tax power as well as -JUSTICE
SCALIA: You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first.

Pages 47 up through 49 or so. Page 49 is particularly important if one wants to engage in the semantics battle... Congress did in fact characterize the action as an exercise of the tax power.

[cm husker]

Umm... rriigghhtttt.... I'm with Chi here - you're sure not making it look like you're very knowledgeable on this topic, cm.

I get it, you are with the Mod... I hope you are at least pitching in to RP for the space you are apparently subletting.

[McKinneyTXHusker]

I get it, you are with the Mod... I hope you are at least pitching in to RP for the space you are apparently subletting.

No, I'm with the guy who actually has a background and a career in the topic he's discussing, and not espousing patently absurd stuff like "the Supremes shouldn't worry it, its just semantics."

[cm husker]

Couldn't disagree more. Your interpretation makes the Commerce Clause utterly meaningless. Indeed, it basically deletes Article I, Section 8 from the Constitution altogether. If all that is required for a bill to be constitutional is that it is lawfully passed by a majority of representatives and senators, then the framers would have said just that. Instead, they chose to specifically enumerate Congress' powers. The Supreme Court is obliged to assume that the framers intended to limit congressional authority because they did not give it the carte blanche that you suggest it should have.

It would not make it superfluous at all, because a nexus with commerce would have to exist. However, that nexus would not have to be as tight as you apparently wish it was (which by the way is a completely reasonable position, but it's not one supported by many years of CC jurisprudence).

Engaging in a protracted debate over the CC is ultimately fruitless. In the end, all this boils down to Congressional restraint and the political process. Let's pick something that is undoubtedly related to interstate commerce: cross border shipping (both interstate and international). Could Congress pass a law requiring all domestic importers to use a certain type of shipping or a particular company to conduct the shipping? Why or why not? What limiting principle prevents it?

[cm husker]

No, I'm with the guy who actually has a background and a career in the topic he's discussing, and not espousing patently absurd stuff like "the Supremes shouldn't worry it, its just semantics."

The guy you are referring to knows a good bit about it, but his career is not "in the topic" any more than an orthopedist surgeon's career is in heart disease. Yes, the orthopedist probably knows a lot more than the layman, but it's not like this stuff is intractable.

As far as me espousing absurdities, I recommend you read the transcript between some of the top legal minds in our country today. It addresses it pretty distinctly.

[cm husker]

Why is it dangerous to require citizens to purchase health insurance?

Doesn't society effectively require citizens to purchase seat belts by requiring all car manufacturers to install them? And that's just one example of many.

Let's be real clear, the law doesn't require a citizen to buy a particular brand of product, just a type of product.

I fail to see what's to fear here... maybe someone could elucidate?

This must have been missed, so I'll repeat.