Wednesday, November 25, 2009

An "individual mandate" you can believe in.

When democracy becomes tyranny . . . I still get to vote.

Sorry, folks, but this tee'd me off so much, I interrupted my work on Absolved long enough to read and respond to it. And yes, the typo "consitutional" was in the original. I ignored it.


November 25, 2009

Health Care Mandate is Consitutional

By Ruth Marcus

WASHINGTON -- Is Congress going through the ordeal of trying to enact health care reform only to have one of the main pillars -- requiring individuals to obtain insurance -- declared unconstitutional? An interesting debate for a constitutional law seminar. In the real world, not a big worry.

"This issue is not serious," says Walter Dellinger, acting solicitor general during the Clinton administration.

But it's being taken seriously in some quarters, so it's worth explaining where the Constitution grants Congress the authority to impose an individual mandate. There are two short answers: the power to regulate interstate commerce and the power to tax.
First, the Commerce Clause. Spending on health care consumes 16 percent --and growing -- of the gross national product. There is hardly an individual activity with greater effect on commerce than the consumption of health care.

If you arrive uninsured at an emergency room, that has ripple effects through the national economy -- driving up costs and premiums for everyone. If you choose to go without insurance, that limits the size of the pool of insured individuals and -- assuming you are young and healthy -- drives up premium costs.

The clause empowers Congress "to regulate commerce ... among the several states," which may not sound terribly sweeping. But since the New Deal, the Supreme Court has interpreted this authority to cover local activities with national implications.

In the 1942 case of Wickard v. Filburn, the justices ruled that even though an activity may "be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

Thus, the court said, Congress was entitled to tell Roscoe Filburn how much wheat he could grow to feed his own chickens. Surely, then, Congress could require Filburn's grandson to buy health insurance.

The court has narrowed the reach of the Commerce Clause in recent years -- but also reaffirmed Wickard. The times it has found that Congress overstepped involved situations where the connection to interstate commerce was strained: carrying guns near schools or engaging in gender-based violence.

In United States v. Lopez, the court found that the Gun-Free School Zones Act "is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."

The individual mandate is "the mirror image of Lopez as a Commerce Clause case," says Harvard Law School professor Laurence Tribe.

Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. Granted, too, there is a difference between making automobile insurance compulsory, as a condition of the privilege to drive a car, and making health insurance compulsory, whether an individual wants it or not.

But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.

Congress clearly has authority to, in effect, require employees to purchase health insurance for their old age by imposing a payroll tax to fund Medicare. It's odd for the same conservatives bemoaning a government takeover of health care to complain about requiring that people turn to the private marketplace.

Which brings us to the alternative source of congressional authority, the "Power to lay and collect Taxes, Duties, Imposts and Excises."

The individual mandate is to be administered through the tax code: On their forms, taxpayers will have to submit evidence of adequate insurance or, unless they qualify for a hardship exemption, pay a penalty.
Yale Law School professor Jack Balkin likens this to Congress raising money for environmental programs by taxing polluters. "Congress is entitled to raise revenues from persons whose actions specifically contribute to a social problem that Congress seeks to remedy through new government programs," he concludes.

Balkin cites a 1950 Supreme Court case upholding a tax on marijuana distributors. "It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed," the court said. "The principle applies even though the revenue obtained is obviously negligible, or the revenue purpose of the tax may be secondary."

Sounds like the individual mandate to me.

My email to Ms. Marcus:

My dear Ms. Marcus,

re: Your column on "Health Care" constitutionality is itself a felonious violation of the Law of Unintended Consequences.

Legal opinions from old Clintonista law hacks notwithstanding, the versions of the "health care" bill I have seen are moving into uncharted territory and will, I am certain, prove to be a usurpation too far.

You must remember that by their interpretation, the mass murder of the Davidians at Waco was constitutional. Pardon us if we aren't over-awed by their judicial gravitas.

Even if you get a Supreme Court to rule in your favor, the attempt to force Americans to toe the administration's line will be that velvet gloved tyranny's undoing.

You seem to think that just because some black-robed idiots order a thing to happen, that it will happen. You are extrapolating from your own cowardice. Just because you would never risk resisting a government order given at the point of a federal gun does not mean that others won't. I assure you, they will.

You should understand that we are rapidly coming to a point in this country when half of the people are going to become convinced of the illegitimacy of this administration and its designs upon our liberty. Need I remind you that this side is the one with most of the firearms?

If my friend Billy Beck is correct in his observation that all politics in this country is now dress rehearsal for civil war, then you should study Bill Clinton's rules of engagement as applied to the Serbs in 1999. He sent precision guided munitions into Serbian television studios in the middle of the night, killing janitors and makeup artists, on his theory that the political and media leadership of his enemy was a legitimate target of war. Now THAT is the one thing that we believed Clinton about. Government, as applied by his administration and this administration, amounts to Waco rules.

Ms. Marcus, I beg you, do not attempt to go down this road, for the Law of Unintended Consequences as applied to tyrannical traffic dictates that there is a bridge out just around the corner. I'm the guy at the side of the road, frantically waving his arms, trying to save you.

Your "reasonable regulation" is our "intolerable usurpation." Do you really want to see what happens when we become convinced that it is time to resist or be enslaved?

I assure you, you don't. And neither do I.

"Constitutional" or not, this law will be resisted, even at the point of a gun. And that's an "individual mandate" you can believe in. Indeed, it is a "mandate" that even the Founders would understand.

If you got out of the hot-house of east coast collectivism more, you would know that, and would be less eager to write blithe apologias for predatory tyranny.

Have a nice day.

Mike Vanderboegh
PO Box 926
Pinson, AL 35126


Doc Enigma said...

Well done, Michael! WELL done!

Anonymous said...

Excellent response!!

This issue has already created divisions within my own family, work place, neighborhood, and friend circles. It's painful, none of us want to go through this, but we will if they insist on doing this. It's their call and I applaud you for being so precise in warning them.

Anonymous said...

You forgot to say, "Happy Thanksgiving Beeotch"



Uncle Lar said...

My grandfather was German. Obedience to authority was embedded in his DNA. But I recall vividly the stories of his homemade beer and wine during Prohibition. When enough American citizens believe the government and it's laws are unfair and unjust they will simply ignore them. And as we all know it's not all that much harder to make a working firearm than to brew a batch of bathtub hooch. And that doesn't even begin to factor in the estimated 300 million guns in private hands right now. Or the roughly 9 billion rounds of ammo produced and sold every year.
Leave us alone to make our own choices whether they be right or wrong, no problem. Attempt to make us do what you believe is for our own good and sooner or later we will kill you. Think of it as a Darwin test. Leave us alone and you live. Screw with us and you die.

Brock Townsend said...

(A&M members. BT)
"As a free human being and in full support of the Constitution of the United States of America, for the purpose of securing natural rights bestowed by the Creator, asserting these rights for myself, my family, my children and future generations, be it known to all that in regard to--

(1) a mandate to purchase health insurance or participate in a government-run plan, (2) regulatory and taxation schemes designed to reduce carbon dioxide emissions, (3) further infringements of the right to keep and bear arms, or (4) any sanctioned U.N. Treaty this current administration shall pledge to support, sign, or ratify:

I will not abide by this law/code
I will not recognize this law/code
I will openly oppose this law/code
I will not pay the associated taxes within this law/code
I will not pay the fines associated with this law/code
I will not go to jail
I will come to the aid of any other patriot whom also pledges.

So I pledge without hesitation and with faith."

Signed __________________________________ Date_________

Spitnyri said...

The Truth Just IS..

Maybe they'll listen, maybe they wont.. their elitism tells me they'll brush it off as internet yap.. their mistake.


Dave said...


straightarrow said...

In my family also Anon. I now will not speak to my sister who is a PHD and dumber than a day old Swede.

Her rebuttal to everything I tried to tell her about this health care bill, was that she didn't have time to research, but she was for it and that I just wanted people to die because I am horribly morally inferior to her.

Facts rolled off her while she clung to her position that her opinion formed in her admitted (remember too busy to research it and verify or disprove what I tried to tell her)ignorance was superior and correct because she "cared" more for the sick and poor.

People such as this cannot be persuaded until they get what they want and it kills them. Which it will. But they "care" more, so much so that they will push until the consequences of that push become too overwhelmingly unpleasant to tolerate anymore.

If those of us who see the monster cannot convince those we are closest to of his existence on an individual basis there is no hope to convince them in the collective when they have mutual support of other illogical people who need to feel superior because they "care more". Damn the death toll, either from them getting what they want or its unintended consequences. It makes them "feel" better.

That's some kind of care.

Ironically in our family's case the bill as it now stands and as it is likely to be amended will decimate our family with totally unnecessary early death of some of the oldsters and some very young members also. I am through caring about those who "care more".

The thing we all wish not to see is inevitable, the republic cannot be saved through peaceful means. There is not enough informed intelligence on the other side.

Anonymous said...

They really don't get it.

Their response is "we won the election, ergo whatever we do is OK."

Asking why that didn't apply when the retardlicans won elections will result in accusations of racism and homophobia, or that "you LIKE seeing people die in the street 'cause they don't have health-care."

I usually ask if they like seeing people die in the street because they resist tyranny - because that's what is going to happen.

It's 2nd grade math, folks: If A=B and B=C then A=C.

A: Don't buy insurance, we'll fine you.
B: Don't pay the fine, we'll arrest you.
C: Don't accept arrest, we'll kill you.

Ergo: Don't buy insurance, we'll kill you.

This is what is coming to America.

We WILL resist, and people WILL die.

This is what people like this beastly woman are wishing for.

God help us...

Weaver said...

Me, my family, most everyone I know of do not want to see this country go to war. We are far enough away from the city to avoid most of it if/when it does happen. What I don't understand is why the majority of this country has not already gone to war. I was a really lazy student growing up until I started the first of my three degrees but from what I know and have read, this current administration makes king George look like a a school yard punk. The first American Revolution was started over FAR less than what is going on now. Taxes? Anyone remember why this country went to war with the King? Do some math and compare those taxes to today. I have no doubt there are people in this country who have done the math and have decided enough is enough. Those same people are the ones who believe Clinton was right in how to fight a war.


Anonymous said...

"Congress was entitled to tell Roscoe Filburn how much wheat he could grow to feed his own chickens."

This argument should silence any lingering doubts that the fedgov has usurped powers denied to it under its original charter.

The social contract is broken beyond anyone's ability to repair.

It is time we returned to the Constitution's predecessor--The Articles of Confederation--so as to reclaim our lost immunities from government interference in our daily lives.


aughtsix said...

Another great piece of writing.

I want to thank you, Mike, for all that you're doing. Your clear explication of your perspective and insight has done more to clarify my own thinking and commitment than any other in years. I agree with you nearly in total.

I'm a three percenter and an Oath Keeper. I'm also a big fan of "Absolved"... because I am.

三四八 said...

Here's an individual mandate for them:

As a free human being and in full support of the Constitution for the United States of America, for the purpose of securing natural rights bestowed by the Creator, asserting these rights for myself, my family, my children and future generations, be it known to all that in regard to--
(1) a mandate to purchase health insurance or participate in a government-run plan, (2) regulatory and taxation schemes designed to reduce carbon dioxide emissions, (3) further infringements of the right to keep and bear arms, or (4) any sanctioned U.N. Treaty this current administration shall pledge to support, sign, or ratify:

I will not abide by this law/code.
I will not recognize this law/code.
I will openly oppose this law/code.
I will not pay the associated taxes within this law/code.
I will not pay the fines associated with this law/code.
I will not go to jail.
I will come to the aid of any other patriot whom also pledges.

So I pledge without hesitation and with faith.

Signed __________________________________ Date _________

DC Wright said...

Mike, there ain't enough lipstick in the WORLD to make this pig look anything but what it is... and it is tyranny with a Capital T-Y-R-A-N-N-Y and that spells blood in the streets to me. I hate to say it, but if this pig flies, it'll mean either BITS or the end of the Republic for sure.

On a different note, Happy Thanksgiving and God grant we have yet a Republic to be thankful for in the MANY years to come!

OldTCS said...

The atmosphere now reminds me of the old James Stewart movie about the Civil War, with families splitting along similar lines. We are very close now.

Anonymous said...

The Interstate Commerce Clause is used as an excuse to regulate just about everything. That was not its intent. It was never meant to be a vehicle for trashing our rights. If it were, they wouldn't have written the rest of the Constitution, they would have crowned Washington as King, and let the top rule the bottom.

They refuse to respect the fact that we our their bosses, not the other way around. It's our power, not theirs. They are not our parents, telling us kids how it will be, for our own good.

Rebellious kids - well......

Anonymous said...

I know a family practice physician who "runs barefoot". That's what Docs call it when they have no malpractice insurance. My friend works 3 or 4 days a week, makes house calls and treats guides, bush pilots, trappers and loggers. Those are self employed folks who don't have medical insurance. They pay Doc in cash over time.

A visiting fisherman who was a Doc in a big city asked his guide, "What if your Doc gets sued?"

The guide replied, "If anybody sues Doc, we'll just drown him." This unnerved the visiting Doc.

The Old Guide

Robert L Stevenson said...

There ain't nothing more dumb than an academic who has lost touch with reality.

AvgJoe said...

I don't believe that the health care bills will see sunlight much less get passed in the senate. Not to say the liberals have not tried to enslave us with this far reaching scam on one of the largest parts of our economy for government to take over. Yet, the fat lady has not started into her singing act but my personal hunch is she's backstage waiting for curtain time.
Nevertheless Mike, you have danced around an underlying point that needs to be put in the open. When bad laws are passed and even idiots understand that such and such laws are wrong. Why is it that new members of both houses of congress never correct them? Never in my lifetime have I seen congress move in correcting bad laws or fixing them to serve the American people. My personal hunch in understanding this wrong in our system is to understand lawyers, which of whom most members of congress are, lawyers. If a person hires a lawyer in a civil suit and the lawyers blows it big time. The law is as such that, thats the clients bad luck but the client is stuck with the outcome regardless. So the lawyers in congress never fix the mistakes of past congresses because they see it as our tough luck in picking bad lawyers in the past. What a mess we have and its not going to get any better, which is a fear many have.

Anonymous said...

Apparently they no longer teach Harvard Law School students that one of the basic tenets of contract law is that for a contract to be valid, it must be VOLUNTARY.

J. R. Mayfield

Randall said...

And leaving aside all those who would deliberately refuse to comply with the mandate, (God bless you all), how about the people who couldn't afford to buy the insurance, and yet didn't meet the criteria for being under "hardship conditions"? No matter what they think or no matter what their figures may look like on paper, (and to presume that anybody in this administration ever bothers to look at numbers on paper is very weak speculation at this point) there will be a LOT of these people. And we know what happens in a socialist system when people don't fit the plan, now don't we?

Anonymous said...

Great letter.

I'm tired of so many folks saying "wait until the 2010 (or 2012) election". No, that's not enough, IMHO. Obviously, whether it's because they think they can "fix" the elections illegally, or they just don't care if they lose (it's like he really this inept, or is he a willful traitor?), the politicians, specifically mainly the Dems right now, don't seem to care what anyone thinks. Electoral losses are fazing them very much right now. Nothing seems to be derailing their mad grab for totalitarianism. So it's nice to read where someone has the guts to write and say what really NEEDS to be said.

cmblake6 said...

Mike, that was superb. I am WAY impressed with your response. If you don't mind, I'm going to link this in a post.

And, indeed I am in complete agreement. These fools feel themselves invincible and omnipotent. They are very near to discovering the lie of this.

Toastrider said...

Hey now, Straightarrow, some of us are descended from Swedes :)

I just came off another site, where I was informed 'Oh no, there'll be no uprising because there hasn't been one before in the face of federal crackdowns'. Oy. As I told him, I hope you're right, because the alternatives SUCK.

I don't want a civil war, or even a 'low intensity conflict' in my country. But I get the feeling there are elements in the government that won't be happy till they finally provoke that fight they think they want so much.

It's like one of those dweebs in high school, who'd irritate you until you finally blew your stack. Then he'd look all wide eyed and say 'Cantcha take a joke?' or something equally idiotic.

Except this time, the answer's going to be 'No'.

daniel said...

On board with those signin' pledges. Print 'em, meet w/ likeminded, distribute, sign, spread the word. This is it. Like banks "call the whole loan due" when someone misses enough payments, I'm calling the WHOLE constitution due immediately if this last straw of socialism becomes "law."

Anonymous said...

MALTHUS writes: "It is time we returned to the Constitution's predecessor--The Articles of Confederation--so as to reclaim our lost immunities from government interference in our daily lives."

The Articles of Confederation failed under load: it allowed itself to be removed and the Constitution imposed in a coup. I think five-year plans for the collective production of liberty work about as well as any other central plans the Soviet Union made. I would rather see a free market in enterprises to defend my property from thieves.

"The social contract is broken beyond anyone's ability to repair."

I didn't sign no stinkin' social contract, and I'd appreciate you not misrepresenting that I did.

Donald said...

Howdy Folks, I was given this web site address from a friend of mine who is trying to get his butt back to Wyoming. I live in Colorado. Issues have become heated enough in my world , to the point that they are causing me actual physical discomfort. When a person,especially a politician opens their mouth and spews forth lies and propaganda, It insults and upsets me enough to want to do something that I know will alter my life. I take a breath and imagine what was going through the minds of the original Patriots and Revolutionaries that put evreything on the line many years ago. I ask myself if I have the courage to stand up to the tyranny that we are being subjected to. I answered,YES! I have despised bullies my entire life and I have personally made a bullies life, a miserable existence, more than once. It is time to Walk the Walk.

Anonymous said...

Thank you for the response to the "constitutional" argument. I must say you have written precisely what I believe and feel from a gut level.
This goes to the very core of my sense of personal freedom. More than will or won't, I cannot accept this attack on my freedom.